Just like comedian Rodney Dangerfield, seems that solo and small lawyers just can’t get no respect from the federal courts. Only the slight to solos by federal judges is no laughing matter not just for us solo and small firm appellate lawyers but more importantly, for our clients.

The latest round of elitism and reduced expectations comes from Seventh Circuit Judge Frank Easterbrook in remarks at a breakfast meeting earlier this last month reported by in-house counsel columnist Mark Hermann at Above the Law.  Hermann writes that Judge Easterbrook

 excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense.  But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms.

While perhaps Judge Easterbrook intended to show empathy for “small and unknown law firms,” his remarks (as reported by Hermann) are insulting, reflecting a generalization that small firm lawyers are so utterly and unredeemingly incapable that we require special accommodation that real lawyers at prominent law firms do not.  Moreover, because Judge Easterbrook apparently expects briefs from small firm lawyers to be bad, solo and small firm lawyers who appear in his courtroom have to work twice as hard to overcome the presumption.

Unfortunately, Judge Easterbrook’s anti-solo/small firm bias predominates in federal courts.  I’ve documented other instances involving federal judges where solo or small firm attorneys were treated more harshly or fared worse than a large firm lawyers. Even a Stanford Law Review article noted that in cases where federal judges perceived a disparity in the quality of representation (mostly civil rights and immigration matters on the civil side), they overwhelmingly found the solo/small firm lawyer to be the more deficient (See Report and Discussion at Table 8).

It’s not surprising that federal judges look down at solos.  The indoctrination begins in law school, where federal judges — many of whom were law school superstars graduating with top grades, law review and federal clerkship in hand –  are taught that solo practice is the dumping ground for losers, morons and those who can’t otherwise find a job.

But federal judges aren’t the only ones to blame for solo and small firm lawyers’ poor reputation in federal court; solo and small firm lawyers are to blame as well.  Too many solos, too frequently, play the solo card, begging for preferential treatment because they can’t keep pace with a larger, better funded and better staffed opponents.  Too bad, kids but that’s life in solo and small firm practice.

There’s simply no excuse for submitting poor quality work to a court.  If the client can’t pay enough to allow you to submit well-reasoned briefs that comply with a federal court’s rules, then don’t take the case.  Or, figure out a way where you can cut corners that won’t adversely impact your client and diminish your reputation.  For example, if you’re a terrible proofreader, maybe you hire a grad student in an English program who would charge less than a contract attorney.  Maybe you tell the client at the outset that you can handle the case for X amount, but they’ll have to communicate by email instead of phone or won’t be allowed to review every single document before it’s filed.  Maybe you prioritize and then limit the number of issues that you pursue in litigation or on appeal.  Or maybe if you’re just starting out or you’re trying to crack into a new area, you take the lower-paying case, but do a bang-up job as a downpayment on establishing the kind of reputation that will allow you to earn more.

At the end of the day, we can’t change the attitude of those like Judge Easterbrook in our profession; elitism is so deeply baked into the legal profession’s DNA that we’d need some kind of full-scale genetic engineering to effect change for future generations.  Even so, by working twice as hard as our big firm colleagues and never settling for second-rate quality, we can achieve the results that our clients deserve and that’s what matters.

Related posts:

1. You know what…this judge WAS a few fries shy of a Happy Meal
2. Lawyer Sanctioned for Disclosing What A Judge Should Have
3. Federal Judges Honor Pro Bono – But Exclude Solos

Would you sacrifice six weeks of revenue for six years and instead, spend those six weeks toiling pro bono for a snowball’s chance in hell of victory before the United States Supreme Court? Small firm lawyer Alan Gura did.

A partner in the two-lawyer firm of Gura and Possessky, Gura was just 32 and eight years out of law school when when he was hired, for “something less than minimum wage” to challenge the constitutionality of DC’s gun ban under the Second Amendment. Gura took the case from its humble origins in federal district court to a landmark win in District v. Heller. As Scott Greenfield points out, not only did Gura successfully reverse longstanding Supreme Court precedent to achieve his client’s win, but he did so as a resource constrained small firm lawyer.

With a story like that, you’d think that Gura would be celebrated as the toast of the town – respected by constitutional scholars and Supreme Court advocates for an extraordinary result or held out as an inspiration to young, unemployed lawyers languishing in document review jobs that taking big risks by starting a practice and handling compelling cases can yield big rewards. You’d think that a court would be eager to heap praises on a young lawyer who gave up six weeks of his life, for six years working for pocket change on a case that many experts regarded as unwinnable and quite frankly, few others were willing to take. You’d think.

But because Gura is a small firm lawyer in Washington D.C.’s caste-like legal community, the extraordinary nature of his accomplishment was trivialized by Judge Emmet Sullivan, who in this ruling lopped a full two thirds off the 2008 attorneys fees petition filed by Gura and his team. Sullivan found that Gura’s work wasn’t sufficiently exceptional to justify an enhanced award of $589 over the $420 hourly rate traditionally applied for similar work Laffey Matrix, and in any event, as a small firm lawyer, Gura didn’t deserve fees comparable to big law attorneys.

As evidence of prevailing market rates for similar work (another metric for rates under fee-shifting statutes), Gura’s petition listed the fees charged by large firm attorneys with comparable experience – which ranged from $500 – $700 an hour. Moreover, Gura’s opponent at the Supreme Court, Walter Dellinger of O’Melvey Myers who represented the District pro bono estimates that his firm loses $1,000,000 in foregone fees just for the Supreme Court litigation alone! Yet, Sullivan awarded Gura’s team – $1.3 million for the entire six year case – scarcely more than the value of Dellinger’s time for once phase of the proceeding.

Judge Sullivan’s decision is outrageous. Although granted, there is precedent to support Judge Sullivan’s approach, courts have fairly wide latitude in awarding attorneys’ fees. Judge Sullivan could have exercised his power to reach a decision more favorable to Gura and his team, but he didn’t. Perhaps, as Scott Greenfield contends it was a political thing, but in my view, the decision results from an utter lack of understanding of, and respect for the work that solo and small firm lawyers do.

For starters, Judge Sullivan found that large firm billing rates had little relevance because Guru is a partner at a two-lawyer firm where he enjoys lower overhead. So what? Even with his less extensive resources and “lack of investment in big firm accoutrements like “librarians, researchers, support staff, information technology and litigation services,” Gura beat a lawyer who typically commands $1 million for a Supreme Court case. If Gura achieved the a better result than lawyers who charge double his rate, shouldn’t he be similarly compensated? Moreover, why should Gura be penalized for keeping his overhead low?

To add insult to injury, Judge Sullivan failed to take into account the impact that such all-consuming litigation had on Gura’s small law practice. Over at O’Melveny, most likely, Dellinger continued to collect his $1.5 million partnership draw even though his pro bono work cost the firm nearly as much. By contrast, Gura lost more than six full weeks of billable time for the six years that he handled the case. That’s six weeks a year where his revenues were zero, and that’s six years where Gura earned less because of his involvement in the Heller challenge. Yet Judge Sullivan’s fee award does not take account of Gura’s lost opportunity costs – even though foregone opportunities impact a small firm’s bottom line as much or more than hefty overhead costs impact a large firm’s earnings.

Not only did Gura forego opportunities, but he took on enormous risk with the Heller litigation. In determining whether a fee , particularly a contingency fee is reasonable, many jurisdictions, including D.C. allow for consideration of factors such as the novelty of the case, time and labor and likelihood of recovery. Yet Judge Sullivan did not consider these factors either. Perhaps O’Melveny and other big law firms have more substantial overhead, but partners like Dellinger collect their draw whether they win a case or not. Gura doesn’t.

What galls me most about Judge Sullivan’s decision is the implicit assumption pervading this ruling: that solo and small firm lawyers are second class citizens who ought to be grateful for any scraps they get. At p. 26 of the Opinion, Judge Sullivan explains that the public is more willing to pay top dollar for large firms because of all of their resources, but not so for smaller firms which don’t have the same “national or international” reputations or profile. Apparently, Sullivan believes that the only reason that someone would hire a small firm lawyer is because they can’t afford biglaw. How insulting.

Judge Sullivan didn’t even compliment Gura on the exceptional nature of his win or applaud a young attorney for staying the course. Instead, he said that there wasn’t enough evidence to persuade him that Guru’s results were extraordinary enough to warrant a higher rate. Yet at the same time, at an earlier hearing, Judge Sullivan was quick to point out how fortunate the District was to have such “outstanding lawyers from outstanding firms” handling the case pro bono.

At the end of the day, I recognize that it’s hard for most folks to feel sorry for Gura. After all, even at the $420/hour rate, he’ll take home an award of $662,000. And on a personal note, having originally become acquainted with Gura on solosez back in 2001 when he was just starting out, I’m thrilled that his investment in the case is paying off both professionally – and presumably financially — through recognition as a preeminent expert on Second Amendment litigation. So even if Gura isn’t getting the fee he deserves for this matter, hopefully all of these ancillary benefits will allow him to recoup his time spent, and then some.

In the long run, the real losers in this decision are solo and small firm lawyers. Judge Sullivan’s decision makes clear that even if we beat an AmLaw 100 law firm and overturn Supreme Court precedent, it’s still not enough — we have to prove our value and worth over and over and over again because we don’t have the cache of an AmLaw 100 law firm. While everywhere else on the planet, actions speak louder than words, here in Washington D.C., solo and small firm actions don’t speak louder when those words are the name of a top law firm.

Related posts:

1. Overkill for a Missed Hearing
2. A Law Firm That’s Out of This World (at least, its fees are)
3. Solo Suspended for Trust Error But Biglaw Unscathed for Botching Capital Appeal

Like most solos who compete with big firms, my sweet spot is my ability to offer potential clients exceptional value — high quality work, longstanding experience and industry contacts, a seamless experience through use of technology and an assurance that clients will always deal directly with me and not a low level flunky. Of course, that’s just my official pitch.  I know that in most cases, what brings clients to my door to begin with is that I’m an affordable alternative to biglaw.  Though I generally bill flat fees, I have an official hourly rate that is roughly 40 percent lower than a lawyer of comparable ability at a large firm.

Even though I can undercut big firms on price and value, that’s not to say that I discount competition from them.  When it comes to attracting clients, large firms can out-resource and out-market me any day. For every e-book that I painstakingly produce, they can churn out an entire library; for every blog that I struggle to find time to update, they publish post after post without skipping a beat, for every $1000 industry conference that I save my pennies to attend, they can pay to sponsor a $10,000 cocktail party at the event.  Yes, blogs and social media and the web level the playing field for solo and small firms, particularly early adopters – but large firms that recognize the power of these tools can still bulldoze the playing field right back to ground zero.

Even so, my own secret weapon against biglaw is that I’m nimble and engaged and still not too proud to hustle, or too egotistical to think that I don’t have to. If a given practice area is saturated, well so what? I’ll just create a new one. I’ve done it before with ocean energy, with representation of landowners in federal court in eminent domain proceedings brought by pipelines and most recently, with social media, utilities and privacy and smart grid. And if I have to, I’ll do it again until the end of time or at least until I move on to another career.

Ultimately, what scares me more than competition from traditional big firms is competition from Axiom Legal. Earlier innovations such like virtual law firms – think  Virtual Law Partners or FSBLegal- those never bothered me as much because in many ways, my practice mirrors those slimmed down, efficient models of big firm practice.   But Axiom is different.

Billed as a “new interpretation” of a law firm,  Axiom is best described as a type of high-end placement agency.  Axiom hires experienced lawyers with ten years of work experience and often more and dispatches them in-house on temporary assignment where they handle fairly routine, but complex legal matters for corporate clients – compliance, litigation, and transactional.  At rates like $130/hour for regulatory compliance matters or $150 an hour for litigation, there’s simply no way that I – or any solos I know for that matter – can compete. Maybe Axiom doesn’t have the ability to identify new practice areas, but once I’ve developed them, Axiom can swoop in and take over the work for less than I could.

Even if Axiom can’t make a play for my existing and target clients who may be too small for its clutches, Axiom impedes my ability to expand. Used to be common in the energy industry, and I suspect many other regulated industries, for large corporations to retain one or two solo lawyers in DC or other hubs for routine matters.  In turn, those routine matters would create a steady stream of revenue that might occupy the one or two lawyers or perhaps a paralegal or associate nearly full time.  That kind of steady, baseload work  neutralizes the short-term cash flow issues that solo and small firm lawyers experience, thus allowing them to outsource more work and occasionally take on the kinds of high risk cases that can produce larger returns.  During the boom days of the mid-1990s, much of this routine regulatory compliance and filing work was gobbled up by rapidly expanding and increasingly aggressive large firms; in down times, much of it has gone in house.  Now, companies like Axiom offer an alternative.

Why can Axiom vie for corporate business when solos and small firms can’t?  Several reasons.  For starters, many large companies are justifiably concerned about a solo or small firm’s reliability.  What happens if you get overloaded? What if you take a vacation…or die? These are commonly asked, real-world questions.  Even with my ability to put together a “team” line up comprised of other well qualified lawyers and lobbyists, the team approach doesn’t always give large clients the same comfort as well a large, multi-leveled company with several layers of back-up takes over.  In addition, because Axiom has enormous resources (and presumably, as a non-law firm, can also accept outside investment), it can afford high end technology, legal research tools and other resources, not to mention benefit from economies of scale.

Axiom also has advantages on the marketing side of the equation.  With former biglaw and corporate partners on their staff, Axiom can get through doors to decision makers both in the US and globally who won’t even return my phone calls.  And with more than $100 million in revenues last year, that I can’t afford.

Axiom isn’t the only model of its ilk. As I said, while I don’t put virtual law firms like VLP in the same category there’s also Clearspire, a shop that opened here in Washington D.C. last year and is described in more detail here.

So here are some questions I throw out to all of the thought leaders and futurists who laud these new developments without offering any real analysis of what it all means for solos and small firms (the writing is pretty clearly on the wall for the impact to biglaw). Specifically, can big-law oriented solo and small firm lawyers compete with the Axioms and Clearspires for corporate work – and will these entities begin to encroach and offer services to smaller companies that solo and small firm lawyers typically handle? Are my concerns simply a product of paranoia, or is a bonafide competitor chasing me and my solo and small firm colleagues? I’d love to see some discussion of this question somewhere.

Related posts:

1. Small Firms Drawing Big Attention from Big Clients
2. Can Small Fry Catch Big Clients? That’s My Shingle’s Raison d’Etre
3. In House Counsel Looking for Deals…Why Not With Solos?

Currently, there’s a cross-blog debate raging over the sustainability of the virtual law practice, with Jay Fleishman, Susan Cartier Liebel, Richard Granat of Direct Law (a MyShingle sponsor) and David Bilinsky all weighing in. Take a look at all of the posts to see the wide array of opinions on virtual legal services.

As for me, I’ve always had reservations about the viability of a purely unbundled, forms-based virtual law practice as a stand-alone business model (as opposed to a component of full service firm) primarily because I can’t make the numbers work. When a lawyer’s business portfolio consists of one-off, low cost matters at $300 or $500 a pop, then the only way to make real money is on volume.  And building a  volume practice, whether in the brick-and-mortar world or online requires a serious time or financial investment in marketing – either through paid ads, or persistent blogging, social media use and self-promotion.

Of course, even brick-and-mortar firms had to make these marketing expenditures even before online, non-legal service and DIY providers came on the scene to challenge lawyers’ monopoly.  Now, however, virtual law firms have to combat not just competition from other lawyers but also from online providers.  Up until recently, lawyers marketing virtual online services could claim that they bring to the table a lawyer’s judgment that self-help companies don’t provide. That’s no longer true. Perusing Legal Zoom’s offerings as I frequently do, I noticed that they’ve rolled out various packages that include services from actual lawyers. For example, both the $249 Living Trust or the $69 will include attorney support and an annual legal check-up with a lawyer for an extra $10-$20.

There’s no reason why Legal Zoom won’t continue to grow its legal offerings by contracting with lawyers to provide service to Legal Zoom clients. Moreover, because Legal Zoom has enormous resources, it can out-advertise and potentially outperform a mom-and-pop virtual law firm while undercutting the cost. Yes, it’s true that a solo virtual firm can provide more individualized attention – but they’re going to have to charge more, and there’s no guarantee that the LZ crowd will pay. In many ways, LZ customers are much like those who frequent Walmart. Walmart customers (and I include myself in this category) readily forego the personal touch of the Main Street hardware or pharmacy for rude service or a messy store in exchange for the convenience of being able to buy a wrench or diapers at 11 pm at a fraction of the cost at the mom-and-pop. But if those same customers need to buy a diamond engagement ring, they’ll seek out the personal service of a jewelry store even if it means paying more. Likewise, LZ customers doesn’t care about personal attention or expertise for a will where their only asset is a house or for an LLC when they’ve got $5 in the bank account. But if they need to provide for disposition of $30 million in lottery winnings or prepare for an IPO, they won’t give Legal Zoom – or an unbundled online lawyer – a second glance.

Yet even with these hurdles, lawyers, including those providing unbundled service have two aces in the hole to combat Legal Zoom. The first is our ability to assure client confidentiality, a topic that I discussed here (though confidentiality won’t matter much anymore if our profession’s “thought-leaders” and “innovators” continue to give kudos to idiotic services like Shpoonkle or Law Pivot which invite clients to tell all and in so doing, compromise privilege). And our second defense  is our ability through legal malpractice insurance, to make clients whole if something goes wrong. By contrast, Legal Zoom’s terms of use very explicitly forbid recovery of the types of incidental or consequential damages that might be available through malpractice coverage (e.g., the cost to the client of hiring another attorney).

What’s the best way for lawyers to get the word out about our competitive edge? I suppose all of the solos who compete with Legal Zoom or other non-legal providers can blog until we’re blue speak at Chamber of Commerce and Kiwanis Club meetings and show clients our policy when they come into our offices or online portals. Yet these individual messages, while helpful, are like trying to fend off the hurricane that is Legal Zoom advertising with an ordinary umbrella.

So, I’ve got a better idea. The companies that provide legal malpractice coverage to thousands of solos, earning millions off our premiums (for example, my provider, CNA which I love, had a net income of $126 million for the second quarter of 2011)should sponsor a series of ad campaigns – on radio and TV and online – to combat the Legal Zoom effect. The ads could inform consumers about what legal malpractice insurance is and how it can help them in a way that Legal Zoom and other DIY providers cannot. Malpractice insurers pay thousands of dollars to support bar associations and my guess is that they see very little value from that investment. By supporting a solo campaign against DIY providers, insurance companies will help keep solos in business – which can translate directly into more premiums for the insured.

So how bout it, insurance providers? If you really want to help us solos, this is a powerful way to do it. Who’s on board?

Related posts:

1. A Great Pro Se Idea
2. Pay for the Product, Legal Service is Free or Pay for the Legal Service, Product is Free?
3. Upstart Outsmarts LegalZoom

Sometimes, a new concept emerges that’s never been done before because no one ever thought of it. That’s called innovation. But other times, there’s reason that the new concept hasn’t been done before: because it’s a downright stupid idea. Unfortunately, many lawyers can’t tell the difference between innovation and idiocy, which is the only explanation for this week’s launch of the ill-conceived and misguided site, AttorneyFee.com.  Modeled after travel sites like Kayak, AttorneyFee.com allows consumers to comparison shop for lawyers based on price in the same way that they would for hotel rooms or airfare.  But prices for legal services don’t break down as neatly as airline tickets or hotel rates and consequently, AttorneyFee.com confuses consumers even more by failing to give them what they need to make an apples-to-apples cost comparison.   Worse, AttorneyFee.com creates traps for unwary lawyers (like offering prospective clients that opportunity for a free consult for their services without telling lawyers that they’ll be committing to give a free consult when they sign up) and opens up a Pandora’s box of ethics issues.

The premise behind AttorneyFee.com is simple: to provide pricing information on lawyers’ fees. According to this press release trumpeting AttorneyFee.com’s launch, founder BeiBei Que, a 2007 law school grad stumbled upon the idea for the site as an associate a small law firm, where she noticed that every client’s first question was about how much her firm charged. BeiBei Que then conducted additional due diligence consisting of a Google search showing that 300,000 Americans search the term “attorneys fees” on Google monthly (I came up with 74,000 using Google Keyword Search , but who’s counting?). From there, it was a simple leap of logic to buy up the URL, attorneyfee.com and lure SEO-seeking lawyers to register with the promise of increased site traffic by prospective clients. AttorneyFee.com’s sales pitch must have made inroads because the press release reports that 20,000 lawyers had signed up for the site as of the date of the launch.

Once at the AttorneyFee.com website, a consumer can request price information on a lawyer based on practice area and location. So for example, a search for criminal attorneys in New York yields the following:
And that’s where the trouble begins.

First, it’s not entirely clear how AttorneyFee.com harvests this information (which is one reason that I signed up to give the site a test run, but more on that later).  After searching for lawyers by practice area on AttorneyFee.com, I googled the lawyers that my search generated (AttorneyFee.com doesn’t offer a direct link) to see what their websites said about their rates.  Of the ten or so lawyers I selected (admittedly not a scientific sampling), two didn’t have websites at all (thereby undercutting AttorneyFee.com’s claim that it gets its information from lawyer sites), while none of those who had websites listed prices at all. So apparently, AttorneyFee.com’s proprietary search engine (described here) for gathering pricing information doesn’t work very well.  AttorneyFee.com itself hints that the site may suffer from accuracy problems because it includes an odd disclaimer saying that the prices listed should not be construed as an offer to provide service at the posted rates and are not necessarily endorsed by the attorney with whom they are associated.  Of course, the disclaimer swallows up the entire point of the site – because why would consumers want to get price information if they can’t obtain service at the listed prices?

Of course, it’s also possible that some of the information on fees is user-generated.  I registered for the site and submitted my fees.  But as you can see from my profile, AttorneyFee.com says that my fees are based on information available at attorney websites – and my site, Carolyn Elefant doesn’t list fees.

As a result, AttorneyFee.com causes unnecessary confusion for consumers.  Let’s say that a consumer found my profile at AttorneyFee.com and visited my site to confirm the fees listed at AttorneyFee.com.  The consumer is going to feel frustrated, because my site doesn’t list prices – and I’m going to look like a fool for not having the rates available at my site when AttorneyFee.com says that’s where they came from.

For a site that purports to promote transparency on lawyer fees, AttorneyFee.com doesn’t just muddy the water for consumers; it converts them into a veritable toxic waste site. That’s because listing hourly rates or flat fees for a transaction, in and of themselves, doesn’t tell a consumer anything about how much they’re going to pay for the services that they need. A consumer will pay more for a lawyer who charges $150 an hour but requires 40 hours to draft a motion to dismiss ($6000 total) than a lawyer, presumably more experienced, who bills at $400 an hour but can dispatch a motion in 10 hours ($4000 total). Likewise, knowing that a lawyer charges $500 to prepare an LLC isn’t of much use to a consumer who requires an incorporation. Because AttorneyFee.com does not explain the factors that account for different prices (a factor that Richard Granat suggests causes consumer distrust) or list any other information about listed lawyers, AttorneyFee.com drives consumers to make a decision based on price.

Not that there’s anything wrong with consumers choosing a lawyer based on price, either – which is the one point on which I part ways with Scott Greenfield about AttorneyFee.com. Personally, I take price into account when selecting vendors depending upon how much a particular service matters to me so I don’t begrudge consumers when they do the same when hiring a lawyer. But if consumers are going to rely on price to choose a lawyer, then at the very least, they need to understand all of factors that inform the total cost of the case. Without this context, consumers are lulled into believing that simply by choosing the lawyer with the lowest hourly rate or the lowest flat fee, they’re receiving the lowest cost legal service — when that may not be true at all.

AttorneyFee.com causes even more confusion for consumers with practice area descriptions that are, in some instances, egregiously inaccurate. For example, as Scott Greenfield points out, most criminal defense attorneys charge flat fees, contrary to the site’s claim that they bill by the hour. The Bankruptcy description are just plain laughable :

In terms of attorney fees, Chapter 7 is much more affordable than Chapter 13. For example, attorney fees for Chapter 7 bankruptcy are typically around $1,000, while attorney fees for Chapter 13 will run around $3,000. Why is there a two thousand dollar difference? The answer is simple: Chapter 13 involves a lot more work for the attorney. With Chapter 7, the attorney basically fills out one form, slaps a postage stamp on it, and sends it off to Uncle Sam.

Postage stamp? Bankruptcy courts have been mandating electronic filing for at least five years now. As for the $1000 price tag, not sure where those lawyers can be found. Even on Legal Zoom, starting price for a lawyer-assisted Chapter 7 filing is around $1299 and that doesn’t include the $299 filing fee.

Not only does AttorneyFee.com cause confusion for consumers, but it also limits their ability to learn about innovative billing practices that many lawyers are now offering. AttorneyFee.com gives lawyers two options – the ability to post hourly rates or flat fees for transactions. The site does not accommodate models like Minnesota lawyer Sam Glover’s service plans or Massachusetts lawyer Gabriel Cheong’s flat fee calculator or Valorem’s value adjustment or any of the other new approaches to billing. For a site that claims to be innovative, AttorneyFee.com is surprisingly behind the times on 21st century lawyer pricing trends.

As harmful as AttorneyFee.com is to consumers, it’s just as harmful for lawyers as well. AttorneyFee.com assures lawyers that the site is ethical, but the reasons provided make utterly no sense: AttorneyFee.com says that because the site is free, the Model Code’s advertising rules which govern only paid ads don’t apply. (Hopefully, there aren’t any lawyers stupid enough to fall for that explanation). In the meantime, AttorneyFee.com fails to mention the more significant ethics issue for lawyers – the requirement that some jurisdictions impose on lawyers to honor listed prices. New York Ethics Rule 7.1(d) is particularly stringent in this regard:

If a lawyer or law firm advertises a range of fees or an hourly rate for services, the lawyer or law firm shall not charge more than the fee advertised for such services. If a lawyer or law firm advertises a fixed fee for specified legal services, or performs services described in a fee schedule, the lawyer or law firm shall not charge more than the fixed fee for such stated legal service as set forth in the advertisement or fee schedule, unless the client agrees in writing that the services performed or to be performed were not legal services referred to or implied in the advertisement or in the fee schedule and, further, that a different fee arrangement shall apply to the transaction.

Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under this Rule in a publication that is published more frequently than once per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication.

Thus, an attorney might post lower rates on AttorneyFee.com to draw clients through the door – and then raise the price after signing up the client.  AttorneyFee.com’s disclaimer suggests that this practice is OK because the prices listed on the site aren’t necessarily binding.  But lawyers need to understand that while AttorneyFee.com’s disclaimer might help it avoid a bait-and-switch complaint at the FTC (maybe), it won’t protect them against  ethics charges arising out of deceptive pricing practices. As I posted with respect to the TotalAttorneys’ matter, a lawyer’s reliance on a vendor’s certification of ethics isn’t a defense to a grievance proceeding.

Also as a result of ethics rules, AttorneyFee.com effectively traps attorneys into providing a free consult without their knowledge. When I registered for the site, I didn’t see anything that committed me to offer a free consult, yet as the above screenshot shows, a green Free Consult button is prominently displayed on my profile. As with listed prices, many jurisdictions don’t allow lawyers to offer free consults without any intention of honoring them. Sure, lawyers can pre-screen prospects to determine which potential clients are best suited for a free consult.   But once a client has an appointment for a free consult, lawyers can’t  keep changing the appointment date or canceling.

On  AttorneyFee.com, a client who clicks on the Free Consult button believes he or she is making an appointment for a free consult. After the transaction is complete, another box pops up telling the client that he’ll receive confirmation of the free consult. From the client’s perspective, he has just been offered and accepted a free consult – and the lawyer must honor the request (subject to availability, etc…) Of course, some lawyers may not mind offering free consults – but at a minimum, they should be warned by that registering for the site, a Free Consult button will appear on their profile and potentially commit them to following through.

Richard Granat applauds AttorneyFee.com and predicts that opposition will come from those who view the site as commoditizing legal services. Broadly summarized, that’s Scott Greenfield’s point. But I see it a little differently.  As I said, I don’t begrudge consumers who shop for lawyers based on price because for some (but not all) services, I do the same thing.  But if a company is going to take up the gauntlet of empowering consumers to shop for lawyers based on price, it owes them far more than a hastily thrown together site long on inaccuracy and short on substance. Meanwhile, if you’re a lawyer, you may want to think twice (or at least consult with your jurisdiction’s ethics counsel) before signing up for AttorneyFee.com and risking your bar license  for a site where the founders themselves weren’t willing to risk the time or the resources to get it right.

Related posts:

1. How A Little Lawsuit Now Threatens A Lawyer’s Career – and How to Avoid this Mess
2. Some Open Questions for Flat Fee Aficionados and Ethics Gurus
3. New Site for Solos – JD Supra

Jordan Furlong has posted a critical read for solos as well as those contemplating this adventure. Jordan’s post, which grew out of his recent guest lecture at Solo Practice University, focuses on what it takes to succeed as a solo in the 21st century. Since I’ve also spoken on this same topic (see 2:33-5:01 for rules of 21st century solo practice) and because I think that Jordan’s post deserves more attention and dissection than a couple of 140 character hosanna’s, I’m offering my quick, stream of conscious commentary here. But more importantly, I’m asking other solos to do the same, either in the comments below or in a blog post.

On GP Solo Bar Sections Jordan points out that most U.S. bar associations have some kind of a GP (general practice) solo and small firm section that lumps together groups -solos and general practitioners – which shouldn’t be included in the same category. On one level, Jordan is right: solos do need to specialize if they’re to survive. Therefore, a GP section doesn’t meet the needs of today’s solos. But did it ever? With my energy regulatory niche, I’ve never felt that a GP or consumer-oriented bar section fully meets my interests.

On the other hand – what binds all solos together is that we own and operate law firms; we aren’t simply worker bees. For that reason, I’ve always felt far more engaged and energized after attending a lunch with other solos, trading business tips and “client-from-hell” stories.

By contrast, when I meet with my biglaw energy colleagues – many of whom live comfortably off their law firm income and never bother thinking about where their next meal comes from – I just don’t feel that same kinship. Sure, they’re all nice enough, but at the end of the day, I’m the captain of my ship and many of them, even the well-paid partners, are just seamen manning the oars. Plus, there’s already too much stratification in our profession; a GP section lets me learn from lawyers from all walks of life, and with all kinds of practice areas.

Solos & the Revolution Jordan cautions that solos aren’t exempt from the revolution in the legal profession that is transforming other sectors, from biglaw to legal publishing to law schools. Who thinks solos are exempt? We’ve always lead the charge. As I said from my very first post at MyShingle back in December 2002 , solos have always been at the forefront of introducing change into our profession – for better or worse. Solos pioneered the contingency fee (that biglaw later adopted), marketing and advertising (when I started my firm in 1993, few big law firms advertised), web presence and blogging and even spam! Yet legal academics and advisors don’t study or follow or track what solos do. Many law schools now have programs devoted to the study of big firms and big structures and global practice. But solos courses – to the extent available – focus on the nuts and bolts of running a law firm. As a result, what solos do simply minimized. We’re viewed as workaday, common laborers (which is the inevitable result of focusing on skills to the exclusion of analysis and writing) rather than (for want of better word) thought leaders and visionaries.

But there’s also a more insidious reason why solos are ignored. Because we are out here on the front lines, serving as the soul of our profession, representing real people. We stand as the last fortress that stands guard against turning our profession into an automated, offshored, computer-generated operation, devoid of passion and compassion, or humanity and dignity – all of which are integral in one way or another to justice. Because solos care about the human element of law practice and live with it day in and day out, we’re often unfairly maligned by those who have an agenda – who would rather see lawyers taken out of the equation entirely. (And if you don’t believe that, wait for my next block buster post on this topic).

Jordan’s remaining four points – that solos must specialize, run sophisticated practices, collaborate and innovate – are all well-taken. From my own perspective, here’s how solos are doing:

• Specialization: I think that most solos except those in rural or under-served communities are already specializing, though they could do more to create niches within those specializations.
• Sophistication: Many lawyers are using some type of tech for their practice. It may be Outlook or another product that isn’t widely regarded as cutting edge, but if it works, it’s not worth changing. Lawyers have been slow to adopt document automation and I think that’s partly because to date, many programs have been costly and complicated and not sufficiently refined. Thus, it’s always been easier to modify a template than use automated document generators, though I think that will change as the programs come down in price and become more user friendly.
• Collaboration: Here, I agree. Solos need to collaborate more. Mom-and-pop VLOs or even tax or business practices aren’t going to be able to compete with Legal Zoom franchises or a state-wide operation that offshores document preparation to India. The same is true at the high end as well. Companies like Axiom charge $200/hr, Virtual Law Partners bill at around $350 (or so I’ve been told). And these ain’t junior lawyers either – they’re attorneys with a decade of experience or more, groomed at the largest firms and in-house departments in the country. Most solos I know, even relatively junior consumer lawyers, charge far more than Axiom’s rate already. But Axiom and VLP can spread infrastructure costs and share marketing, which solos can’t do unless they band together.

As for contract law help, it’s great for gap-filling and showing capacity to handle a matter, but I’m not so sure of how effective it is for long-term growth because it’s not always available (in the power biz, we’d call contract lawyers peaking plants, whereas associates are capacity or baseload) A utility will use peakers to fill in at high demand, but it certainly won’t have its entire system reliant on them because they’re too costly. Same is true for contract lawyers – for projects here and there, they’re a bargain – but you don’t have the bandwidth. An associate represents a fixed cost – a $100,000 annual salary – so if a firm doesn’t have billable work, the associate can work on marketing. But firms are less likely to hire contract attorneys unless the work is billable – so there’s always a stop-and-start quality. As more associate positions are replaced by freelancers, perhaps we’ll see an emergence of different solutions like packaged plans with discounted rates.

• Innovation: As I said, we solos are already innovating. Every day, we have to serve our clients and make sure we have enough business to keep the lights on. Every day, we face the possibility that the phone will never ring again. Every day, we live with the fear that every single one of our clients could leave us, and we’d have to pick up the pieces and start from scratch . And yet somehow, in a profession that is falling apart, not only do we solos manage to figure out a way to keep it together, but to thrive. If that’s not innovative, I don’t know what is.

Now, readers – it’s your turn. What are your thoughts about Jordan’s blog post? Let’s keep the conversation moving.

Related posts:

1. The Pressures of 21st Century Presentation
2. Complete v. Cobble v. Cutting Edge: Law Practice Management in the 21st Century
3. Mobile Marketing: The Go-To Format for The On The Go 21st Century

Even though biglaw is on the decline, there’s still big money to be made in the law. Only not necessarily by lawyers.

Last month, news of the Reuters/Westlaw acquisition of Pangea dominated the headlines, with bloggers like Jordan Furlong imagining the possibilities that this new behemoth could bring to the table. And today, two other stories caught my eye – the first, from Dallas Morning News, about Virtech Paralegal, a Dallas-based, national service that offers virtual paralegals and which has attracted half a million in funding. Similarly, today, Total Attorneys, which provides infrastructure and marketing services to solos and small firms issued a Press Release announcing receipt of a capital investment from BIA Digital Partners.

What’s my take on these developments? Naturally, I’m excited because all of these services mean more options for solo and small firm practitioners. To the extent that solo lawyers have felt constrained in their ability to grow or take on more work, these companies provide important services to facilitate growth. And more’s the merrier, since competition will keep these services affordable, which means that we solo and small firm lawyers can keep our rates low as well.

But, just as part of me celebrates these new developments, another part is wary (chalk it up to my Gemini-split personality). As it becomes easier to procure low-cost services powered by technology and cheap labor, what’s to prevent law firms from setting up “shell” type practices – offices all over the country – staffed entirely by virtual paralegals with a couple of lawyers cursorily reviewing the final product? This kind of set up could ultimately put less savvy solo and small firm lawyers out of business. And in the end, I’m not so sure whether this kind of assembly-line practice expands meaningful access to law, or subverts it, as we’ve seen with other volume arrangements that rely on low cost labor like this or this.

In these crazy and turbulent times, I know one thing holds true: most of our clients don’t come to us for the forms (those who only want forms will eventually simply use Legal Zoom or online forms and cut lawyers out of the equation entirely). Instead, clients come for help solving their problems and they come because they need someone to fight for them and they come for comfort and reassurance even when there’s nothing that we can do (and that, my friend Mirriam, is why I do think we matter even if I can’t express it as eloquently as you say we don’t!). Somehow we’ve got to find a way to stay a step ahead of all these changes – not to stop them, of course – to remember what they are: a tool for expanding meaningful access to law and “bespoke services on a budget” – and not a ticket to a four hour work week or a way to earn a fast and easy buck while ruining people’s lives in the process.

Update:

One state is bucking the trend of facilitating outsourcing of support services like document review, at least when those services are provided in India. As Lisa Solomon writes at Legal Research and Writing Pro, a Connecticut representative has proposed a law that would hold that “drafting, researching and reviewing documents” for clients in the state constitutes the “practice of law,” and as such, may only be performed by Connecticut-licensed lawyers. Lisa points out that this protectionist statute won’t bring back lost jobs. Moreover, the Connecticut law put Connecticut lawyers at a competitive disadvantage by preventing them from accessing lower cost support services, such as experienced contract lawyers located in other states, law students who are not licensed but could benefit from experience and paralegals. While like Lisa, I’m concerned about the quality of some providers (though to be fair, I’m also concerned about the quality of some of the work I’ve seen that’s produced by licensed lawyers) as well as the potential for abuse (discussed in my post), I think that the harms of banning access to outsourced services does far more harm than good in the longer run.

Related posts:

1. Lawyer Sues Clients for Money; Not Sure of What to Make of All of This
2. Solos Practice Longer…But For Love or For Money?
3. Solomarketing List, Blawging for Lawyers and the Question of Blogging for Love v. Money

Ten Solo and Small Firm Trends 2011

[Editor's Note This is a long, long post - so you can read it here as a post in its entirety, or download it as a PDF (above)]

Once again, it’s that season when, a blogger’s fancy turns to top trends (H/T Alfred Tennyson). Jack Newton of Clio has already posted a round-up of the prognostications which thus far, cover largely tech (where my co-author Niki Black has some original thoughts on social media trends) or biglaw practice (here, John Wallbillich of Wired GC offers insights on biglaw that are also relevant to solo and small firm lawyers). Another round-up post at JD Supra includes comments from lawyers and consultants on what surprised them in 2010 – most of which relate to social media, the state of the economy and legal outsourcing. But nothing specific for solos or small firms. So without repeating what’s already been said (yes, I agree that mobile apps and social media are here to stay!), here’s my best shot at opportunities and challenges for solo and small firms for 2011 (in no particular order).

1. The cloud is just a start…

Even without Richard Susskind pinpointing it, by now, most lawyers realize that data storage is heading for the clouds. Client portals are all the rage and both state bar associations and the ABA are weighing in on ethics issues related to the cloud. Solos are also fortunate in that several vendors offer affordable cloud solutions for small practices, and have also formed the Legal Cloud Computing Association to define standards and best practices.

So what challenges lie ahead for solos and the cloud? Security, discussed below, is an issue as is the possibility, discussed here of conflicting regulations by state bars that will complicate cloud adoption and increase costs for solos. But the biggest hurdle is the matter of legacy files; all of those paper files, or even paperless files housed on other systems that will need to be moved to the cloud. With the first of baby boomers turning 65 in 2011, older lawyers will be thinking about succession, either partnering with younger lawyers to take over the firm or selling it outright to younger lawyers. If boomers are going to capture the full value of their business, they’re going to have to figure out how to transition files to the cloud, an issue which hasn’t yet received much attention, but will (or at least should) in 2011.

2. Time for lawyers to “man up” about security

As I wrote here, there’s no such thing as perfect security. So rather than devote time and resources to attaining Fort Knox-like standards, lawyers should assess their risks and apply the appropriate level of security to a particular risk. Thus, using unencrypted email or cell phones to set a meeting date with a client or discuss strategy wouldn’t necessarily require exceptional precautions because the potential risk of harm, even in the event of a breach, are minimal. By contrast, where a lawyer routinely deals with client social security numbers or other information where a breach could result in identity theft, lawyers need to “man up” and get serious about security. And what that means is abiding not by ABA rules, but by the federal and state laws governing data protection and security that apply to any other providers who deal with sensitive information. The ABA and state bars should not be making rules about security issues, and I predict that if they try to exempt lawyers from federal and state law on data-protection in favor of self-regulation, that Congress will (as it should) preempt them, as it should. Instead, the ABA and state bars should focus on educating lawyers on best practices for complying with applicable law (e.g., encryption, cyber-insurance or other standard practices).

3. Vendorfactors

In 2010, and more so in 2011, we’ll see more, much more of the vendor-factor phenomenon, i.e., vendors acting as benefactors for solo and small firm lawyers by offering an array of free and low cost web-based trainings and even CLEs. This past year, I participated in webinars (available at no charge to anyone) for Avvo, Lexis and Rocket Matter, though there are plenty of other companies offering programs as well (chime in down in the comments section if you’ve got something interesting for the upcoming year). Education-based marketing is a win-win for vendors and solos: vendors build relationships with customers and save money through less costly and more effective marketing tools than bar publications or sponsorships while solos enjoy courses that are useful, often free and don’t require travel out of the office.

There are losers too: the bar associations. Though once, vendor-largesse subsidized many a bar association, now all but the biggest players can pony up and eventually, even they will question the value. Lack of vendor support packs a double-whammy for bar associations as well, which once touted substantial discounts as a benefit of membership. Now, vendors can offer discounts directly to their webinar attendees, or at group-purchasing sites like Groupon and Living Social or even GroupEsq (aka Groupon for Lawyers, which thus far, apparently offers only deals bargain-basement CLE).

4. And, the bars struggle…

Decline in vendor funding isn’t the bars’ only problem. They’re also struggling with declining membership in a down economy, revealed a 2009 ABA Survey. Indeed, the ABA is feeling so desperate that it
reduced membership fees for solos (I joined thereafter) and hired a new marketing officer.

But in an Internet age, the bars’ powers are (or should be) constrained. In addition to the considerable potential for conflicting regulations as has been the case with the ethics of looking at metadata,
bars have no business trying to self-regulate how lawyers handle personal information like social security numbers, credit card numbers and drivers license, issues circumscribed by federal and state law. Likewise, where the ABA or state bars, even under Bates, may play some role in regulating ads created by lawyers, they simply have no power to regulate user-generated content posted at third party platforms. Regulating marketing-based speech by lawyers is one matter – personally, I don’t like it but advertising isn’t accorded the same level of protection as political or expressive speech. By contrast, bar restrictions on clients or lawyers’ business colleagues’ ability to express opinions about a particular lawyer on a third party platform like Avvo, Yelp or a self-created website violates the First Amendment and far exceeds the bars’ police power over lawyers.

So should solo and small firm lawyers simply forget about the ABA and state bars? Many of my colleagues have reached that point, but I’m still a hold-out. In particular, ABA and state bars provide significant programming and listserves to solo and small firms. They’re also default providers of important services like lawyers’ assistance programs and courses on starting a law firm that provide reasonably priced, jurisdiction-specific guidance. Many bar associations also have Practice Management Advisors who stay abreast of trends and will provide personalized advice on starting a law practice at no cost (though query whether vendors can or will eventually replace the how-to type services, if not the listserves or lawyer assistance programs). Turning these functions over to the private sector might result in more varied programming, but without the state bars as a backstop, private providers might price practice management or lawyers’ assistance services out of the range of the new or struggling solos.

Still, there’s much room for improvement. Think of what the state bars could do if they pooled their resources. Together, the bars could sponsor effective public education campaigns for the Internet and even TV to help solo and small firm lawyers compete with all of the Legal Zoom advertising. They could establish an online presence for bar referral services that might have a prayer of being listed on the first page of Google. In this way, the bars could compete with the “pay per click” companies instead of bringing specious ethics claims against the solo and small firm lawyers who use those services because they can’t afford Internet advertising any other way. They could develop a suite of high quality forms and checklists – retainer agreements, declination letters, contracts for outsourcing web design, best practices for security – available at no cost for lawyers to use in their practices.  They could collectively hire independent tech experts to review different types of technology and make recommendations on security, and “certify” approved applications which lawyers could use without any added due diligence.  In short, if the ABA and state bars really want to serve their members’ interests and needs in the 21st century, they need to pull together.

5. Local and Location-based marketing

OK, location-based marketing isn’t all that new or original. I blogged about it last year at Legal Marketing Blawg; Jordan Furlong had a terrific post on
Hyper-local Lawyer at the end of 2009, and just last month, Ernie the Attorney emphasized the importance of understanding how location-based social media may impact your firm. But this is the year that both local and location-based marketing will really gain traction.

Why now? First, lawyers aren’t immune from macro-trends, and this year, food trends are going local, says the National Restaurant Association. Top 20 food trends for 2011 include locally sourced meats and seafood, locally gown produce, “hyper local” (restaurants with their own gardens) and locally produced wine and beer. The local theme dominates the Tech World as well, with group-buying sites like Groupon and its copycats focused on local deals and larger companies like Google looking to pounce to leverage Groupon’s existing relationships with local vendors.
For lawyers late to come online, location-based advertising still remains a wide-open game, with opportunities to focus on local markets and come up on top in the search engines. Social media reinforces location-based marketing; firms can use sites like MeetUp or FB or Linked-In’s events pages to facilitate and publicize local seminars or charitable events.

Don’t assume that location-based marketing only works for consumer-oriented, smaller town practices. Solo and small firm lawyers with unique expertise in areas like litigation or local-court practice or a state-specific regulatory practice can create a niche in that area, acting as a local counsel – almost a sherpa – to out-of-state law firms or corporations with cases in the state.

6. Impact of Big Events on Solos and Small Firms

This past year saw the emergence of several major developments with implications for solos and small firms, including Westlaw’s acquisition of Pangea3, acceleration of the biglaw to boutique start-up, the ABA’s launch of the Commission on Ethics 2020 to explore the impact of technology on existing ethics rules and countdown til the 2011 effective date of the UK’s Legal Services Act. I realize that this topic merits a post in itself, so I’ve elaborated on the Westlaw/Pangea3 acquisition and will reserve commentary on the other topics for future posts.

More than any development I’ve seen since I started this blog in 2002 (including the rise of Legal Zoom), the Thompson/Westlaw/Pangea3 acquisition makes me nervous with regard to its implications for solo and small firm lawyers. The combined company possesses enormous research resources and economies of scale and employs both US and foreigh lawyers. True, it likely has a decent amount of overhead, but that’s counterbalanced considerably by the low cost of offshored labor. All of these factors mean that this new behemoth can provide fairly good quality services as very competitive rates. Pangea, which will remain a separate division for the time, plans to open a US outpost – which means that lawyers stationed in the US offices could supervise and sign off on foreign lawyer’s work. According to Pangea’s site, the merged company will provide a suite of services to corporations.

Prior to the acquisition, Pangea3 had been assuming responsibility for tasks previously handled by first year biglaw associates. But now, I could also envision Thompson/Westlaw/Pangea3 stepping into the shoes that small virtual firms are trying to fulfill: that sweet-spot of low-cost online unbundled services, with the extra value add of lawyer-assistance. Trouble is, because of its size and infrastructure (presumably Westlaw/Pangea already has a top of the line cloud-based portal system), Westlaw/Pangea could provide the same service even less (because of lower labor costs and economies of scale).

At the same time, this new hybrid may also pose a challenge to high-end temp services like Axiom Legal, which at $200 an hour, already charge less for corporate work than most solos I know. And as the Law Without Borders blog predicts that these same services provided by Axiom will be cheaper still when off-shored.

As discussed over at Donna Seyle’s Law Practice Strategy Blog, experienced freelance contract lawyers can bring a value add that an outsourced firm cannot. Having used these “higher end” contract lawyers, I agree. But that’s not much comfort to newer attorneys who want to handle contract work because with little experience, it’s questionable as to how much value they can offer, both on substance and ability to turn work around quickly. This poses a conundrum for solos like me who want to send work to lawyers in the US, but don’t want to pay more for the same or lesser quality particularly when biglaw partners who earn 10 times what I do aren’t willing to cut their profits to help the next generation of lawyers. The only suggestion I have for new solos who are looking to contract work to supplement their practice is (1) develop expertise in a new practice area or focus on bespoke work, like in person court appearances, which can’t otherwise be replaced; (2) figure out ways to leverage offshore lawyers to your benefit or (3) hope that Westlaw/Pangea3 prices itself in a way that makes the service uneconomic for solos and small firm clients.

7. We get over technology

When’s the last time that you waxed poetic about the virtues of a yellow legal pad? Or boasted about talking on the phone, sending an email, taking out a classified ad or attending a bar lunch? Exactly. The legal pad, the phone, the newspaper are all longstanding tools for capturing knowledge, communicating or building relationships but because they’ve been around so long, we don’t bother to pay attention. I predict that this is the year that we’ll start to view technology, whether it’s ipads or social media or mobile credit cards or the cloud with the same nonchalance. In other words, we won’t regard tech gadgets or online medium as anything inherently special or worthy of mention, but just another one of the many, many things that we use to serve our clients.

8. Practice Growth Areas

There are so many exciting 21st century practice growth areas that it’s hard to figure out where to start. But here’s a few: the law of social media as it applies to employment law. Regulated industries (one of my new specialties where I’ll have an exciting announcement soon). Health care. Legal ethics. Defamation. Having researched the law of social media online for several reasons, I’ve found very few decent resources on the topic which is shocking. It’s a wide open field, one where newer lawyers stand on equal footing to more experienced ones.

Another hot area: privacy. Issues related to privacy of data and consumer use of social media and commercial websites, a topic just covered by the FTC in this report. Privacy relating to consumers’ energy consumption data collected by third parties administering Smart Grid, a topic covered in this DOE report . Fourth Amendment privacy issues related to searches of cell phone data and email.

There’s also 21st century legal ethics issue – serving as “outside ethics counsel” for solo and small firms. Laws related to project management and cloud computing and data security. medical marijuana. And with boomers turning 65 and reluctant to retire, watch for a potential increase in age discrimination cases as well as a need for business succession planning (law firms too), litigation over long term care insurance contracts and family leave taken by children to care for aging parents.

Finally, the global and international component of traditional practice areas, from to entertainment law to defamationto family law to will increase. We may also see foreign companies with new technologies looking to bring them to the US, and therefore in need of corporate lawyers who can set up a corporate presence for them here. And this past year, a little discussed (in the solo world, anyway) decision issued out of the EU, kzo Nobel Chemicals Ltd v. EU (Case-550/07), which held that the legal professional privilege to in-house counsel communications with clients. The EU’s theory is that because in-house counsel are employees of their clients, they may lack the independent judgment necessary to justify extending the privilege. However, companies can still preserve attorney-client privilege by running in-house counsel’s advice through an outside attorney. I’d always thought that offering EU “privilege protection” services seemed like a neat little niche for solo and small firms, which would charge far less for the service than biglaw, and indeed, “selective use of outside lawyers” is one of the recommendations for protection of privilege offered by the ACC to its corporate members. What trends are you seeing?

9. Bespoke on a budget

What’s this year’s “killer app” for lawyers? Last year, I said it was Your Client as Your Partner. This year, I’m going with “bespoke on a budget.”

The dictionary definition of bespoke means custom or made to order. For Richard Susskind (as summarized here, bespoke legal services are individually tailored, one-on-one non-reusable services like courtroom advocacy or specialized skills which rank highest up the legal food chain, and therefore command the highest payment. (Next comes recurrent legal tasks, systematized legal tasks, packaged legal tasks. Finally, there’s commodities work – wills, leases, incorporations that are often the province of solo and small firms – which Susskind predicts which will be replaced entirely by IT solutions administered by non-lawyers)

The problem with Susskind’s model however, is that he assumes, incorrectly in my view, that ordinary consumers with run of the mill legal problems don’t need or want bespoke services. While its’ true that most consumers can’t affordbespoke services and thus, have to settle for DIY solutions or doing without, that doesn’t mean that they would turn down bespoke services if given the option.

Again, I reference other social trends as proof: bespoke services are gaining popularity as technology makes them more accessible. Consider, for example, the growth trajectory of Etsy, a website focused on sale of handmade (or bespoke) crafts: sales jumped from $130 million in November 2009 to $400 million at the end of December 2010. Moreover, Tech Crunch is predicting that added growth will come from a popular Etsy service called Alchemy, added in 2008, which allows customers to put out a bid for custom-made goods – which is as bespoke as you can get!

But bespoke is gaining traction in other places, both on the web and off. Recently, I came across this Groupon Deal, half price for custom made jeans. There are several sites where you can design shoes for purchase. And in Bethesda, Maryland where I live, food chains like Sweet Green and Yogiberry where customers can create a burrito, salad or frozen yogurt concoction by creating combinations from ten or even 20 different ingredients (quasi-bespoke) are far more popular than standard fast-food joints that don’t give customers much choice.

Technology allows us to provide bespoke services on a budget. It reduces our overhead and more importantly, makes us more efficient so that we have time to focus on the matters where we’re irreplaceable. Just like this Pittsburgh doctor I described here.

10. We start being lawyers again (not a prediction, but wishful thinking)

I’ll admit, last year’s seemingly endless trend of blog posts and seminar talks on how lawyers should be like Zappos, or Starbucks or the Ritz-Carlton or Lady Gaga on was interesting at first. Agree, client service matters . Point well taken.

But while I run a business, at the beginning of the day and the end, I’m a lawyer. The people or businesses that I represent and counsel are my clients, not my customers. I return phone calls, explain the legal issues, answer their questions and assuage their fears, keep their confidences, don’t work for their competitors and do the absolute best job I can not because it’s good customer service but because it’s my professional obligation. A business has a choice about the quality of service it provides. As a lawyer, I don’t.

In a world where technology and non-lawyer providers are replacing what we do, our path to survival is to be lawyers, in the best sense. That online form generation company won’t protect the the private information that a consumer submitted to generate a will or LLC document – but a lawyer will take it to the grave. That Stop Foreclosure Now “team of professionals” will buy clients some extra time in their home while waiting for a court ruling, but it sure won’t show up fighting and determined even when all seems lost like a lawyer would. What we solo and small firm lawyers do matters, and leave a lasting impression on our clients even when we couldn’t do much at all.

Have a wonderful and prosperous 2011!

Related posts:

1. Xemplar: New Spotlight on Solo and Small Firm Lawyers and Trends
2. Solo & Small Law Hit the Big Time With ABA Soloing Center & Above the Law’s Small Law
3. Can Solo and Small Firm Lawyers Anchor Social Movements? We Already Do.

Dr. Brest Rosenblum runs a solo family practice in  Aspinwall, Pennsylvania, that hearkens back to the days before healthcare, like law, became a business.   When Dr. Rosenblum’s patients arrive at the office, he greets them in the waiting room and takes down their intake information himself. After hours, when Dr. Rosenblum isn’t available, his patients can reach him directly on his personal cell phone and likewise, access their records. Or, they just might run into him at the local coffee shop.

Dr. Rosenblum isn’t a 90 year old anachronism practicing in a modern medical world.  Quite the contrary.  Dr. Rosenblum is 45 years old, and he’s way ahead of most of his peers in using technology to transform his practice.  As the Pittsburgh Post-Gazette describes, Dr. Rosenblum employs 21st century technology to improve his efficiency and make him more accessible to patients.  Dr. Rosenblum’s office is entirely paperless, which saves money on physical storage space and obviates the need for a billing clerk.  Moreover, by submitting insurance paperwork electronically, Dr. Rosenblum gets paid faster.   And with his state-of-the art cloud-based records management system, which features a client portal, Dr. Rosenblum’s patients can access their medical records at any time or anyplace, a significant benefit if they ever suffer a medical emergency while out of town.

Dr. Rosenblum spends about $700 a month to contract with a vendor for the technology systems that he uses to run his office. But the technology gives him a far greater return on his investment: the ability to spend time with, and build a relationship with his patients.

All too often, we lawyers forget that technology carries this promise.   Many lawyers run from technology, either distrusting its accuracy or fearing that it will make their work more complicated.   Other lawyers are so bullish on technology that they turn themselves into robots, automating processes and churning out forms to make more money with less effort.  Yet both of these groups – the luddites and the futurists – overlook the best and highest use of technology for lawyers:  the ability to free ourselves up so that we can be more human in our relationships with our clients.

Related posts:

1. See your name up in lights
2. Would You Fire A Client Who Doesn’t Take Your Advice? Here’s What Doctors Are Doing…
3. Taking Back the Law Doesn’t Mean Going Backwards

Though I’m fascinated with the idea of technology, the nuts and bolts of what to use and how to choose bore the living daylights out me!  Honestly, I have no interest in all of the bells and whistles of a particular tech tool; I just want to know it works in a law practice like mine.  That’s why I’m most drawn to articles where real lawyers describe the suite of technology tools that they use in their law firms – because they describe solutions that I can simply plug and play.

A round-up of blog posts and articles where real lawyers share their technology solutions follows after the jump.  If you’re a solo, paralegal or legal virtual assistant inspired by these “tech bios”, I invite you to  cut and paste the survey questions below, add your response and a photo (preferably of you, but if not, then your firm logo) and email it to me at elefant@myshingle.com by November 19 and  I’ll publish the responses with a link to your website.Lee Rosen, DivorceDiscourse.com (mostly low cost tech tools used in Lee’s family law practice)

Ernie Svenson, ErnietheAttorney.net (comprehensive article on Ernie’s hardware and software choices for his firm)

Steph Kimbro, Virtual Law Practice (online tech tools that facilitate a virtual law practice)

Mark Dobin, Dobinlaw.com (tech tools used by a recent start-up solo)

Kristopher Nelson, Impropria Persona (top free tech tools for law firms and small businesses)

Lisa Solomon, Question of Law (technology for a contract lawyering practice)

MyShingle.com (tech tools used to support the site)

What Solos are Using to Run Their Practices (23 different technology categories, reflecting results of this reader survey – fill it out!)

As promised, now it’s your turn.  Below are the questions to cut and paste into an email (to elefant@myshingle.com) along with a photo of you or your firm logo.

1.  Name, name of firm, location and practice areas.

2.  Name 3 to 5 of the most important or frequently used software (desktop or cloud) products in your practice and describe, briefly, how you use them?

3.  What’s your favorite tech tool under $100?

4.  Name on favorite app for phone or ipad.

5.  What do you use for legal research?

6.  And…off tech…what’s the neatest and/or most useful piece of non-tech swag that you keep on your desk or in your briefcase?

And just to get you started, here are my responses:

1.  Name, name of firm and location and practice areas.

Carolyn Elefant, Law Offices of Carolyn Elefant, Washington D.C., energy regulatory, emerging renewables, federal siting and eminent domain, appeals and select federal litigation.

2.  Name 3 to 5 of the most important or frequently used tech equipment or software (desktop or cloud) products in your practice and describe, briefly, how you use them?

Adobe Pro (my workhorse, used for court filings and appellate appendices, ebook preparation, editing and marking up everything from book galleys to 1000 page utility filings or reports).

Freshbooks, my favorite for invoices.

Dropbox for synching files between my laptop and ipad; also Box.net for client portal and searchable document storage.

Fujistsu Snapscan (effectively functions as a scanner, fax and copy machine)

3.  What’s your favorite tech product or service under $100?

Google Voice (free), also GoogleMaps and GoogleEarth (I’ve won a couple of siting cases based on information in GoogleMaps and GoogleEarth. They are really leveling the playing field in siting cases, no pun intended).

4.  Name on favorite app for phone or ipad.

I love my New York Times and New Yorker magazine on the ipad, and Fastcase on the iphone, as well as squareup.com, nifty app for accepting credit cards.

5.  What do you use for legal research?

Lexis (energy library + Lexcite) as main service ($165/month) combined with Google Legal and Jenkins Law Library (for HeinOnLine journal access)

6.  And…off tech…what’s the neatest and/or most useful piece of non-tech swag that you keep on your desk or in your briefcase?

An ordinary, multi-outlet extension cord (I’ve made lots of friends with it at Panera; never leave home without it) and my Buckyballs.

Related posts:

1. ABA Tech Show 2008 – How Technology Is Redefining the Attorney Client Relationship
2. Small Firms With Biglaw Tech
3. What Lawyers Are Using To Run Their Practices