Dismal Legal Employment Rates for Class of 2010: It Could Be 1937 All Over Again…Except Now, The Solo Option Is Feared, Not Revered.

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For a profession that prides itself on hewing to precedent, how soon we lawyers forget our collective history.

This time, amnesia has taken hold with respect to findings about unemployment trends in the legal profession as well as the promise of solo practice in a recent article, What Happened to the Class of 2010? Empirical Evidence in the Legal Profession  (March 12, 2015), by  Professor Deborah Jones Merritt. Comparing employment rates for the 1200+ Ohio law school graduates Class of 2010 to graduates a decade earlier, Merritt concludes that law firm jobs have dropped markedly, with a full 25 percent of grads in non JD-required jobs.  What’s more, the number of new grads practicing as solos has quadrupled (oh, the horror!) while a lawyers can be found working in pest control and lingerie sales.

Sounds like a depressing world – but guess what? Today’s profession is still doing far better than back in the 1937 when Arthur Merton’s Letters to A Young Lawyer was published. Merton painted a picture of a world where just a scant 3 percent of law grads actually practiced:

Not all the men who graduate with you will practice law. In fact, I venture to prophesy that ten years from now, not more than three percent of your class will be found in active practice. Tom Wilkins told me some interesting things about his class. It appears that lawyers are to be found in almost every kind of activity.

One of his classmates was a street car conductor, another working for three dollars a day as a carpenter, three were bank clerks, two had become book agents, another was collecting telephone rentals for a public service corporation and another was keeping in touch, rather remotely with his profession by becoming a policeman. Less than three percent were actively practicing law.

In this context, even today’s dismal employment rates are far better than what new lawyers could expect 75 years ago.   Unfortunately, what’s changed for the worse is the way that we – or at least Professor Merritt and many of her colleagues in academia and the legal profession — view solo practice.  

For Merton, a young lawyer starting out might struggle as a solo, but in the long run, going out on one’s own was preferable to working for others and would lay a foundation for a comfortable future:

I know no more pitiable sight than someone who has scratched along on somebody’s payroll for a dozen or more years and then tries to branch out in his own practice. I have seen too many shipwrecks made of this sort of thing. Get you into a location and stay stay stay. Work for yourself. Don’t waste your imd and energy playing another man’s game. Then when the almond tree begins to blossom, you will have something to sustain yourself. (p. 83-84).

Moreover, it wasn’t just Merton – a practicing lawyer, who felt that way – but law school deans!  Here’s what one law school dean, quoted in Merton’s book had to say on the subject:

”I cannot see,” he said, “why all these young fellows want to rush into somebody’s law office. There are some lawyers of 30 years’ practice in whose offices I would be afraid to spend a week, for fear I would pick up their little legal vices as well as what virtues they may have. This is very poor business, getting onto somebody else’s ropes. I believe that after three years of the drilling a man gets [in law school] he ought to be able to go and work out his own salvation”

Sadly, Merritt’s article doesn’t harbor so positive a perspective on solo practice. Instead, she writes that:

Despite the romance of a solo office, it is challenging for a junior lawyer to maintain a successful practice. Attracting clients, serving their needs and running a business are all daunting tasks for a new lawyer

Of course, that’s true, but starting a practice out of law school, while not necessarily ideal has been done. Moreover, Merritt also writes that many solos are practicing only half-heartedly – presumably because of limited guidance and active discouragement by law schools. Imagine if a law school had a leader with the perspective offered by Merton’s colleague. Those lawyers going to solo practice would at least start out with more hope and optimism.

Merritt also puts the wrong spin on other facts. For example, she writes that 7.3 percent of solos closed their offices when a new job became available – without considering that the fact that these lawyers took the initiative to start a solo practice helped them find employment. In other words, even if a new grad isn’t wedded to solo practice, there are strategic reasons to start one. Likewise, that solos supplement their position as public defenders or prosecutors isn’t something to be looked down on: small business, by its nature often faces cash flows, so if a firm can latch on to long-term stream of revenue, it makes sense to take it.

Merritt’s article is accurate in one respect: the high cost of law school and concomitant debt obligations of new graduates limits many options. The grads in Merton’s day, while not rich, presumably didn’t start their careers carrying a $1000/month loan payment. That’s an issue that definitely needs to be addressed.

But even what’s really needed is a shift in attitude; more law professors like Merton and his colleague who see the promise of solo practice – not as a consolation prize or sloppy seconds, but a noble calling and an opportunity to cut one’s own path, learn one’s own ropes.  That’s the history lesson that our profession and our law schools have forgotten.

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