Not Client-Safe

Note: While many readers aren’t particularly interested in the problems facing new lawyers, I am, as I believe their problems to be integral to problems facing the profession as a whole.  For those unaware, a great many law students and new lawyers read Paul Campos’  Inside the Law School Scam and Above the Law . They don’t read SJ, and many who do find it less than hospitable or sympathetic.

Much as I may be critical of those perceived to be the “enemies” of young lawyers, I’m similarly critical of the young lawyers as well. They can’t handle criticism, and have no use for introspection. Yet, they matter, and so I persist even though many of you ask me to stop writing about the profession and write only about the practice of criminal defense or the evils of its hated enemies. Tough nuggies. I write about what I want. Get over it.

Campos  posts a letter received by a new lawyer who, apparently, has decided that the best place to cut his teeth is criminal defense. What a shock. This should strike fear in the hearts of many here:

Your comment about the 25-year-old nervous defense lawyer really struck home for me.

I wanted to suggest that you write a post about the result of the flood of new lawyers, especially in urban areas like New York City, with huge debt and growing desperation. I will admit that eight months ago, when I showed up to my first court date with my first client, I almost crapped myself. No amount of Mock Trial, Moot Court, public speaking, or internship shadowing can prepare a new lawyer for showing up to a simple court date without knowing a damn thing about what to do. I read an entire practice guide, just to show up and turn in a basic omnibus motion. When the judge asked me questions, I just nodded my head.

The judge and prosecutor knew that I was green. They both had a similar expression on their face: something between annoyance and pity.

What unmet need was filled here?  Nowhere is it mentioned that this young lawyer stood beside a person who thought he had a lawyer defending him. Heh. Silly person.  To his credit, the writer at least recognized that he was clueless. To his discredit, he “just nodded [his] head.” One can only wonder what rights he waived.

In response to the post about Judge Kane’s fix, a commenter asked, and pursued with vigor, the only question that seems to matter to young lawyers: What can you do for me? The thrust was to find an “answer” to the problem of young lawyers who are nowhere near client-safe but need to do something with their diploma.  The problem is that there are two flaws in the question.

The first flaw is that there is “an answer.” There are a thousand answers, none of which will necessary work for any individual and none of which will work for all. The notion of an answer, whether magic bullet that will make all their nightmares disappear, or even a long-term, hard-fought solution that will guarantee the future they so desperately desire, is misguided.

Even when times weren’t nearly as tough as they are now, there was no answer. Every law school graduate made choices, found the path he or she thought was right, and gave it a go. Some succeeded. Some didn’t. The idea that there was a time when every law school graduate achieved comfort and respectability is nonsense. The dead bodies of unsuccessful and miserable law school graduates have always littered the road. There are just more of them today.

The second flaw is that there should be an “answer” that addresses the needs of young lawyers, disconnected from the rest of the legal profession. The legal profession does not exist to provide law school graduates with something to do during the dan and enough money to pay off their loans and get a happy hour beer. It exists to serve clients. No matter how desperate young lawyers may be about their circumstances, their plight always remains secondary to the needs of clients. 

comment to Campos’ article also strikes a curious note:

I do not understand the vitriolic response to a solo practice. People in this forum make it seem like being a solo is deplorable. I started a solo practice about a year and a half ago after I was sick and tired of doing document review. I went to a T-30 law school. My first year of practice was grueling and I made a lot of mistakes. Lucky I did not try any major felonies until I got a lot more experience. However, I learned.

Well, it’s not like he tried any major felonies until he had a clue, right? But in fairness, he offers this astute clarification:

Judges could tell I was brand new and helped me along. My first few clients understood I was new and they were taking a chance on me.

There is a place for clients to take risks with their lives by entrusting them to rookies, provided they understand the risks they are taking. Mind you, the kindness of judges isn’t exactly a substitute for the competency of counsel, and while clients may understand that a lawyer is new, they may not appreciate the implications of that fact.  After all, new lawyers pass the bar exam, and are thus declared competent by the state, right? Right?!?

But then, the commenter goes and blows it with this assertion:

Young Solos need the experience so they will get it at the expense of their client, but how is that any different from a first year associate getting their experience at the expense of a large corporate client’s war chess.

The inability to understand the distinction, that the experience of a young solo is nothing at all like the experience of a first year associate in a big firm, is disconcerting enough.  The assertion that a baby lawyer’s need for experience properly comes at the expense of a client, however, is the stuff of nightmares.

How to become client-safe is a damn good question, for which there is no simple answer.  I am a strong believer in mentoring, where young lawyers develop close relationships with more experienced lawyers to help guide and mold them so that they are not a walking, talking, head-nodding fiasco. But even that won’t work for everybody. There is no sure-fire answer.

But that never means that it’s acceptable that a young lawyer’s desire for experience comes at the expense of clients.  Nothing about what we do comes at the expense of clients, or there is no reason for lawyers to exist at all. Does that mean you waste your money on law school tuition? If you don’t care to be client-safe, then it does.

8 comments on “Not Client-Safe

  1. Alex Stalker

    The way the profession is currently set up, there is no good answer to new lawyer inexperience.

    If you are new in criminal defense, you will miss issues and your clients will suffer. This applies to new lawyers, experienced lawyers who are starting up a criminal defense practice, and (probably) even to experienced criminal defense attorneys who start in a new state or a federal practice.

    Inexperience can be mitigated by having other experienced attorneys as mentors or in the firm, but eventually a new attorney will have to try cases on his or her own, and that attorney will miss things. As a result, clients will suffer.

    I started criminal practice about 5 years ago as a public defender, doing misdemeanors. I’m still a public defender, but now doing felonies. I unfortunately (inadvertently) did clients a disservice when I started. I still make mistakes today. I was (am) lucky that I work with other more experienced attorneys I can ask for assistance when I realize I need it. I don’t see how it’s possible to gain significant experience without making mistakes on the way. And there’s no way around it, when mistakes are made it’s the clients that suffer.

    I don’t see any way to allow new attorneys to practice without exempting them from making mistakes and having clients suffer as a result.

  2. SHG

    I think you’re right, but there is an important distinction that needs to be made. While new lawyers (and old lawyers) make mistakes, they are things to be avoided or minimized to the extent possible. And they will still happen, despite the best efforts to achieve perfection.

    But putting someone’s life into the hands of a lawyer who lacks even rudimentary skills is inviting mistakes, the polar opposite of avoiding or minimizing them. To add insult to injury, the idea that they should be shrugged off as an inevitable casualty of young lawyers learning the ropes is completely wrong.

    Much as we know mistakes happen, they should be anathema to our work, not acceptable collateral damage.

  3. Alex Stalker

    With public defense agencies in my state, this is generally dealt with by training a new criminal attorney in misdemeanors. The idea being that when they inevitably mess up cases, they will do as little harm as possible. (Also they are more likely to be up against relatively clueless prosecutors who are also new.)

    It is seriously frightening to think that private attorneys are learning criminal law with “nonmajor felonies.” Especially when they may not have mentors or other experienced attorneys to ask for advice.

    The basic problem in my view is that I suspect nearly all attorneys entering the field of criminal law are incompetent, even if they have an experienced mentor to fall back on and some basic training. The harm is reduced by limiting the damage to misdemeanors, and making sure that training exists, but it is still harmful to those clients who get incompetent representation.

    Is that situation “acceptable?” Not really, but as I said I don’t really see a way around it. I think the best we can do is try to minimize the harm.

  4. Kathryn Karjala-Curtis

    As a 1L I really appreciate the honesty on your blog about the realities of being a lawyer. It’s terrifying but at least I won’t be blindsided. Thank you for the post and the advice!

  5. SHG

    I may not be able to offer you an easy answer, but at least I can provide some clarity at what you are looking at in the future. Best of luck, and despite all the negativity, all is not lost. Many do find their way through the mess.

  6. Erik H

    There are definitely some few things that new lawyers can learn to do reasonably well.

    Landlord/tenant law, for example, tends to have a lot of highly specific statutes rather than being based on centuries of case law. It’s usually simpler for a new attorney to work within the boundaries of a strict statutory framework: there’s less discretion, so a lack of experience won’t hurt you. I won my first LL/T case for that precise reason. In fact, many areas of consumer law (excluding foreclosure defense and bankruptcy, among others) are relatively well suited to new attorneys.

    The real issue, though, is class. New solos who are lower class are in trouble. If you don’t have a serious chunk of change it’s incredibly hard these days.

    Working as a new and ethical solo requires you to turn away cases outside of your qualifications, even when you desperately need work. That means you’ll be losing money. There is essentially no way to make a living and act ethically in your first year or two, unless you have the world’s best referral source.

  7. RP

    Respectfully, I think the fear over inexperienced lawyers handling criminal cases is overblown. People in the hospital are invariably treated by interns with little experience or who are doing things for the first time; and may not be experienced (or may be half-sleep) and probably not supervised very well . . . As a society we accept the notion that there may be inexperienced medical personnel attending us from time to time, as the “price” of training young doctors (and otherwise, we will have no experience doctors); why not the same with lawyers? I always believed that a client is better off with someone inexperienced in the particular field but who cares about the client and will be prepared (and learn what they have to) than someone who is experienced and doesn’t care (indeed, who will just “send” an inexperienced associate or per-diem to court). And big firms do terrible work in many instances, in my humble experience.

  8. SHG

    No: “People in the hospital are [not] invariably treated by interns with little experience or who are doing things for the first time; and may not be experienced (or may be half-sleep) and probably not supervised very well.” Not even close.

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