Straight Into Solo, When There's No Other Choice
Over the past few weeks, I've received numerous emails from law students telling me that they want to be criminal defense lawyers and go straight into solo practice. The question posed is, how can they do it?
There is a huge schism in the blawgosphere about the merit of going straight from law school into solo practice, with some promoting it as the panacea of work-life balance and control over one's life and career, and others, like me, admonishing that brand new lawyers aren't yet capable of competently representing clients. The two schools of thought are largely characterized by the focus we bring to the issue: Those who promote it tend to be the ones who make a living off it. Those who don't, like me, tend to be concerned with professionalism and quality of representation. Does that sound unfair? It's not.
It had been my intention to teach others how to go about starting a solo criminal practice at Solo Practice University, but since my unceremonious dumping following my run-in with the majority of the faculty who came on board to sell their services to the students, that's not going to happen. The gist of SPU appears likely to focus on how one can market the newbie lawyer, unprepared to handle the most trivial prosecution, into the next best thing since Clarence Darrow.
Can this be accomplished. Yes, I proclaim. Well, maybe, at least. As long as one squints, and doesn't mind becoming the scum of the earth, lying, scoundrel in the process. Well, that may be a bit harsh, but the fact is that marketing can make a sow's ear look like a silk purse, but it won't help new lawyers to be competent lawyers. Having clients without competency is a recipe for disaster for all involved.
But following the implosion of the economy, and with it the disappearance of the job market for entering lawyers, the equation has changed. Whereas once I argued that the notion of flying solo straight out of law school was decidedly wrong, the new reality is that many law students will have no choice. Solo practice is the alternative to sitting at home playing Wii. The latter is not an option.
I see the most dangerous pending proposition to be the focus of new lawyer solos as the quest for clients without a concomitant quest for competency. The former is far easier to attain than the latter, since I do not believe that any criminal defense lawyer can even begin to fulfill his duty to his clients without a certain breadth of experience, which takes between three and 10 years to attain. I fully expect new criminal defense lawyers to inform me that I am absolutely wrong about this, insisting that they are great lawyers and totally competent (if not excellent) in the performance of the representation.
And lest someone else make this point, experience alone does not turn an incompetent solo into a brilliant practitioner. As the saying goes, an old fool is worse than a young fool. Indeed, there are plenty of lawyers who suck after ten, twenty and more years of experience. But that's because they just aren't any good at being lawyers, for whatever reason, and no amount of experience is going to change that. We're talking here about lawyers who can be good, and should be good, but just aren't yet ready for prime time.
To suggest that new lawyers get a gig with the District Attorney or Legal Aid Society before hanging out the shingle would be facile and pointless under the circumstances. Jobs aren't there, and suggesting non-existent options is a waste of time. I won't insult you that way, especially after insulting you in so many other ways.
But I do have two options to suggest. Neither is perfect, but under the circumstances both offer a greater likelihood of developing competency while not ruining the lives of whatever clients the marketers can drum up for you.
Option A: Hook up with an experience, competent criminal defense lawyer
By this, I mean that new solos should establish a hard relationship with a strong criminal defense lawyer, providing support services in exchange for the "apprenticeship"-type experience that she can offer. Handle the late-night arraignments. Fetch the files from the clerk's office. File the papers. And listen, learn and discuss. The more experienced lawyer can hand off those small cases that she might otherwise reject, to give the new lawyer something to work on, and provide oversight and insight so that the new lawyer develops experience in handling matters that will create a level of depth that only time, or a stream of mistakes, can provide.
If the new criminal defense lawyer has the capacity, she will grow in the relationship, perhaps even to the point of a partnership if she proves worthy of the interest. Shy of that, the respect will earn the new lawyer bigger case referrals, perhaps even co-defendants on multi-defendant cases, and the admiration of others who will see the effort and zeal she's putting into her cases.
On the other hand, if the newbie doesn't have the juice, it will become apparent. This is frank talk here, so don't take this the wrong way. Not everyone is cut out for solo practice, nor criminal defense, nor even the law. Better to find out early, before you've destroyed too many lives and make yourself miserable.
Option B: Find yourself a mentor
The word "mentor" has become ont the favorites of the solo promoters. It's warm. It's friendly. It's a happening kinda word. It's also a decidedly second string concept, having two significant failings. Anyone hyping mentoring should be carefully scrutinized for the illegal use of adjective (well, it should be a crime, anyway) to maintain that warm and fuzzy sensation despite these failings. Remember, if you're a desperate new lawyer embarking on a scary solo practice despite the fact that every synapse in your head is snapping, crackling and popping, you will grasp at any straw you can to bolster your decision. It's only natural.
The first failing of mentoring is that you need continuous and reliable supervision. Mentors are there to help you out when they can, meaning that they have their own lives and work, and you only get as much of their busy day as they are willing to give you. Trust me, you do not come before their children. Maybe not even close acquaintances. You may be the center of the universe to yourselves, but you may not be to the mentor, and they are not prepared to sacrifice their lives and times to convenience you.
The new practitioner has a million questions. Answering a million questions takes up a lot of time. This is time that could otherwise be spent by the mentor earning money and representing clients. Something has to give. Guess who that something will be.
Second, the mentor may be supportive, but supportive isn't necessarily honest. Someone has to tell you when you screw up. Someone has to tell you that you blew it . Someone has to tell you if you don't have what it takes. But whoever that someone is, you're not going to like it (even if you think now that you will appreciate it) and you will turn on them. The mentor has no reason to invite your angst. The mentor is doing you a favor, and while she may be happy to help, she isn't happy to argue the point.
Similarly, when there are too many questions, demands, issues, DRAMA, the mentor may quietly slip away, appeasing you by agreement while dying to get off the phone or avoid that cup of coffee. You may need answers. The mentor doesn't need headaches. Your needs and the mentor's needs are not coterminous, but you won't see it until the mentor refuses to take your calls anymore.
So if mentoring is so fraught with issues, why do I recommend it? Because there aren't any other options, and as much as it may be flawed, it's better than nothing. If the new lawyer bears these failings in mind, and conducts themselves within appropriate limits, it will facilitate the benefits of mentoring without invoking the problems. Of course, it's not easy for a new lawyer to perform such a metacognitive assessment, or to recognize other people's limits until it's too late.
For those new lawyers who hoped to learn how to fly solo at SPU, I feel confident that there's no one over there who will tell you the downside of your plans. You can expect plenty of cheerleading, but no one to pick you up when you crash and burn. Sorry, but solo practice is real life, and no string of adjectives will cover your butt when real people demand that you fulfill the promises that marketers made on your behalf. Indeed, some will get downright nasty when they realize that you're all bluff and no substance.
Somebody had to tell you, and perhaps save you a bunch of money that you likely can't afford to spend to find out that you can succeed by spending even more money on the marketing services of your beloved faculty members. And nobody even mentions that you need to become a decent lawyer.
3/24/2009 6:50 AM
Simple Justice wrote:
We often struggle to make a point which could be made simply, but for the fact that it would offend the very people you seek to persuade in the process.