At Inside Opinions, the question is posed why small firms and solos are willing to join pre-paid legal services, which requires lawyers to take work at significantly reduced rates.  The comment to this post hits the nail on the head: Small Law has excess capacity.  They don’t have enough clients to fill the available hours and are happy to fill that open time with work.  Some money is better than no money, right?

The nature of work at small and solo firms is very different than BigLaw.  Even if the firms are specialized (boutiques), there is no guarantee that every day a new client is going to walk in the door.  But when they do, the firm has to be ready and capable of providing the best possible service. 

As my experience has spanned the small firm to solo experience, I can attest to the boom and bust cycle.  I have never sought a volume practice, and rejected the opportunity to take every case that walks in the door.  Many lawyers do.  In criminal defense, there are a bunch of firms that will never let a client walk away if they have money in their pocket.  Since my view of criminal defense requires that significant work be performed on every case, and I never enter a case with the assumption that it’s a quick plea and I’m out of there, I limit my representation to clients who seek to mount a real defense and want an attorney capable of doing so. 

But these types of clients don’t always know that the good lawyers exist.  They frequently have no clue where to turn when they need a criminal defense lawyer, and even more often have no idea how to determine whether the lawyer sitting in front of them, telling them “don’t worry, I’m gonna take care of it,” is competent or totally full of crap.  How could they know?  Good lawyers don’t like to puff themselves.  It’s demeaning.  And good lawyers don’t whore around to spread their name.  It’s demeaning.  So what’s a good lawyer to do?

There aren’t that many Martha Stewart cases out there to begin with, and when they happen, there is often a tendency to go for the most expensive (most obvious to the uninitiated) lawyers. Morvillo Abramowitz is the criminal defense firm that most white shoe law firms immediately think of when a client is in trouble.  This is the clean firm, made up of former assistant United States attorney and a smattering of assistant district attorneys.  This is the type of defense lawyer that a White and Case partner could love.  Not one of those yucky defense lawyers who represent real criminals.  Of course, those yucky defense lawyers try a lot of cases and know how to win, but that’s a post for some other day.  I don’t mean to disparage Morvillo Abramowitz at all; I do mean to suggest that the universe of potential defense lawyers in these cases tends to exclude many who are often far better choices for a successful defense.  And so some excellent lawyers have some extra time on their hands when Martha doesn’t call.

It’s a tough market out there for good lawyers.  With a limited number of good clients with good cases, and plenty of competition for the work, it’s impossible to buck the boom and bust cycle.  When it’s busy, it can be very, very busy.  But there is always going to be downtime.   It’s unavoidable.  So for many, the opportunity to fill that time with side work, whether it be assigned counsel (18b or CJA) or pre-paid legal services, helps to pay the rent and, more importantly, keeps you busy.  Idle hands, you know.  Not only is there nothing wrong with that, but it serves the public interest as well.  There’s nothing wrong with helping those in need who are unable to pay the full fare.