Every criminal defense lawyer has been asked the “how could you” question about a zillion times.  We’ve all got our pat responses.  But the question that most annoys me is when I’m asked what I do and tell someone I’m a lawyer.  The next question is usually, “with what firm?”

There is something about the underlying assumption that a real lawyer works for a law firm that makes the question pejorative.  It’s probably just an unwarranted sensitivity on my part, but I really dislike the question. 

I had a law firm for many years.  It eventually came to a natural end (as my partner was 20 years my senior and time and vodka did a number on him).  I enjoyed the camaraderie of other lawyers by sharing offices, and I’ve been “of counsel” to a couple of law firms for years now as well.  But I am a solo practitioner.  The law firm is me.  Sure, I have other lawyers who work for me on an ad hoc basis, and the staff of these firms when needed, but it’s not the same as being a member of a law firm. 

So why do people assume that if you’re a lawyer, you have to work for a firm?  Or be a partner in a firm?  Or have a bunch of associates on the payroll?  The solidity of the old-line concept of a law firm, I believe, is part of the mythology of being a lawyer.  It makes lawyers real, whereas the solo is just some guy or gal who hangs out a shingle and does whatever junk comes in off the street.

I reject that notion.  In criminal defense, law firms are something of a rarity.  While there are numerous groups of 2 to 3 lawyers who put their names on the letterhead together and share the ups and downs of practice, there are far more criminal defense lawyers who have only one name on the door.  There’s a good reason for this.  Clients don’t come to us because of the firm, but for the services of a particular lawyer who has the reputation of providing zealous representation and being a great lawyer.  It’s personal.  When someone comes to me, they want me to be their lawyer.  They don’t want my associate showing up in court, no matter how much better looking he may be. 

This changes somewhat in my white collar defense sphere, where potential clients feel naked unless they see a bustling law firm, with people scurrying about hold sheafs of paper and fetching coffee.  This is the corporate mentality of people who work for and with others.  The concept of a solo having the ability to fight often conflicts with the world that they have always known and makes them feel secure. 

The common wisdom is that a solo can’t handle the voluminous paperwork that usually comes with white collar cases.  Why think this?  Because they’ve never experienced a world of personal responsibility, where there weren’t lower echelon people to do the scutt work that was beneath their dignity.  If one lawyer is good, then 10 lawyers must be better.  And by hiring the firm, they get 10 or 20 or 100 lawyers, right?

Wrong.  More than likely, you get diffusion of responsibility since there is no one who takes ownership of every aspect of your case.  You have no idea of the quality of the underlying work, since you have no idea who is doing the work that is later presented to you by a the lawyer you thought you were hiring.  A chain is only as strong as the weakest link, so when some kid who is 12 minutes out of law school is doing document review (or worse yet, some kid from Bangalore), and misses a critical piece of evidence because he lacks the experience to appreciate why it’s critical or how it can be used a trial to rip your heart out, what are you going to do about it?

This post, stemming from a  New York Times lawyer dissatisfaction article, should give a clearer picture.

At the august Sullivan & Cromwell, partners in 2006 began a program, groundbreaking in white-shoe firms, encouraging the uttering of “thank you” and “good work” to harried underlings, as reported in The Wall Street Journal. Probably not a bad move at a firm that had been hemorrhaging associates at a rate of about 30 percent a year.

These are the people who give you a sense of solidity and confidence?  Do you really believe that law firms have some magic system in place that makes them safer and better than a solo practitioner, who personally reviews every piece of evidence involved because he knows that he’s going to be the guy who looks like a moron in front of the jury if he has carelessly overlooked the smoking gun? 

It’s not that there’s anything wrong, per se, with a criminal defense lawyer being a part of a law firm, aside from the potential client misapprehending that the reputation and solidity of the firm somehow translates into making some former AUSA who has never sat at the defense table in his life is somehow imbued with the competency to be an overnight criminal defense lawyer.  But don’t ask me what firm I’m with.  The fact that others have a hang-up about being part of some larger entity has nothing to do with my practicing law in the way that I believe best serves my clients.  If I were your lawyer, you would understand.

Update:  Within hours of posting, I received a call from a fellow who wanted my advice on who to hire as his lawyer.  He had already considered numerous lawyers, all of whom were “big names” from Biglaw.  His case, in his view, was big, and big cases demand big lawyers.  After he told me the two finalists in his lawyer lottery, I asked him whether he had considered certain other lawyers (not me, since he didn’t ask and I’m too shy to suggest it).  He made it clear to me that he wasn’t interested in any lawyer, no matter how good, who didn’t have a big law firm behind them because his case was very important and he wanted big firm “resources”.  What resources?  He couldn’t say, but he knew with absolute certainty that big was good, or else it wouldn’t be big.  Can’t argue with that logic, now can I?

This is a lesson that’s never learned until afterwards.  Make room, MCC.  There’s another one coming your way.