A solo practitioner is no less competent than the cog-lawyer at Biglaw, no matter how much indoctrination is required to make them believe so in order to get them to mesh properly with all the other cogs in their cubicles who perform tasks that a partially alert cocker spaniel would refuse. No insult to cocker spaniels intended. Indeed, many solo practitioners exhibit far greater competence in their niche than any Biglawyer could imagine. Yes, I’ve said it and I damn well mean it.
But then something comes along to undermine the very core of this assertion. This time, it came from Carolyn Elefant at My Shingle. As much as I respect and admire Carolyn’s efforts, I believe that this time she’s missed the boat.
Not everyone should be a lawyer, and it’s not enough that you got into law school and somebody footed the bill, to justify your entitlement to ultimately practice. Granted, law schools should vet the pool before passing them through, but financial interests and political correctness preclude law schools from doing their jobs. Not every law school graduate is good enough.
Starting from the perspective that someone who has failed the bar exam multiple times is already suspect, Carolyn’s point that once they do pass, whether by the blind squirrel theory (a variation on the stopped clock paradigm) or by applying a greater level of effort than before, they are indeed Lawyers. This is bone-chilling. The other day, I used the last in the medical school class joke to make the point that all lawyers are not the same, and it applies in spades here. Will our finally-passed-the-bar lawyer possess the level of ability necessary to entrusted with the life of another human being? Will he exert that level of effort employed to finally pass the bar, or try to squeeze by with the level of effort that brought him failure? Will the client know which lawyer he is getting?
As an employee of a firm, we can at least take potential comfort in the knowledge that there might be someone supervising the lawyer to make sure he doesn’t destroy someone’s life with incompetence. I know, there’s no guarantee that this will be the case, but we can hope that someone is watching, for malpractice purposes if nothing else. But what of the incompetent solo? Who will keep an eye on this lawyer, every bit the same lawyer as any other lawyer from all outward appearances, to make sure that the trust reposed in him is deserved?
From the perspective of marketing, the point Carolyn makes when noting that no client need ever know of his multiple failures to pass the bar exam, we devolve to the lowest rings of the profession. In the old days, a lawyer’s practice was driven by his work, with satisfied clients telling others that the lawyer was worthy of their trust. Not so today.
Today, we have the vast wasteland of the internet to allow the least competent lawyer amongst us to portray himself as the most competent, most effective, most caring lawyer available. It’s just words, and any fool can claim them. And if the words escape this particular fool, there are a vast array of people (perpetually available for speaking engagements) who will provide the bestest marketing words for a small fee. The incompetent lawyer need not even be competent in marketing, as there is no shortage of assistance.
While Carolyn is absolutely accurate in her advice, consider what this means for those who will require the services of a lawyer and into whose hands they place their life, their welfare, their trust. Not every law school graduate should be a lawyer. Not every lawyer should be a solo practitioner. It is an honor to be a lawyer and a solo, and not everyone deserves to be so honored.
But then something comes along to undermine the very core of this assertion. This time, it came from Carolyn Elefant at My Shingle. As much as I respect and admire Carolyn’s efforts, I believe that this time she’s missed the boat.
A few weeks back, a reader, discouraged after having failed the bar exam yet again, asked whether he should give up on his dream of starting his own practice. Of the advice that I offered, what resonated most with the reader was my reminder that no matter how many times he passed the bar, once he passed, he’d be a full fledged lawyer, no different from me or any other solo or even the Justices on the Supreme Court. Moreover, clients would never have to know how long he needed to become a lawyer, only that he was a duly licensed member of the bar.I must disagree with this, on every level. It’s not that I believe the bar exam to be such a terrific indicator of competence, but that it’s sufficiently related to law, and sufficiently easy to pass, that more than one failure to pass the bar exam places someone’s worthiness to be entrusted with the life of others in serious question.
Not everyone should be a lawyer, and it’s not enough that you got into law school and somebody footed the bill, to justify your entitlement to ultimately practice. Granted, law schools should vet the pool before passing them through, but financial interests and political correctness preclude law schools from doing their jobs. Not every law school graduate is good enough.
Starting from the perspective that someone who has failed the bar exam multiple times is already suspect, Carolyn’s point that once they do pass, whether by the blind squirrel theory (a variation on the stopped clock paradigm) or by applying a greater level of effort than before, they are indeed Lawyers. This is bone-chilling. The other day, I used the last in the medical school class joke to make the point that all lawyers are not the same, and it applies in spades here. Will our finally-passed-the-bar lawyer possess the level of ability necessary to entrusted with the life of another human being? Will he exert that level of effort employed to finally pass the bar, or try to squeeze by with the level of effort that brought him failure? Will the client know which lawyer he is getting?
As an employee of a firm, we can at least take potential comfort in the knowledge that there might be someone supervising the lawyer to make sure he doesn’t destroy someone’s life with incompetence. I know, there’s no guarantee that this will be the case, but we can hope that someone is watching, for malpractice purposes if nothing else. But what of the incompetent solo? Who will keep an eye on this lawyer, every bit the same lawyer as any other lawyer from all outward appearances, to make sure that the trust reposed in him is deserved?
From the perspective of marketing, the point Carolyn makes when noting that no client need ever know of his multiple failures to pass the bar exam, we devolve to the lowest rings of the profession. In the old days, a lawyer’s practice was driven by his work, with satisfied clients telling others that the lawyer was worthy of their trust. Not so today.
Today, we have the vast wasteland of the internet to allow the least competent lawyer amongst us to portray himself as the most competent, most effective, most caring lawyer available. It’s just words, and any fool can claim them. And if the words escape this particular fool, there are a vast array of people (perpetually available for speaking engagements) who will provide the bestest marketing words for a small fee. The incompetent lawyer need not even be competent in marketing, as there is no shortage of assistance.
While Carolyn is absolutely accurate in her advice, consider what this means for those who will require the services of a lawyer and into whose hands they place their life, their welfare, their trust. Not every law school graduate should be a lawyer. Not every lawyer should be a solo practitioner. It is an honor to be a lawyer and a solo, and not everyone deserves to be so honored.
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Brings to mind the U.S. Senate hearings investigating how and why Flight 3407 crashed and all those people died. Painful reading, isn’t it? Something about the pilot flunking a pilot exam several times before passing one. Finally.
I was thinking the same thing, but was reluctant to compare or invoke dead bodies in Buffalo. It’s just a different magnitude of horror.
The analogy does bother me but it is obvious enough that I am not reluctant to talk about it.
Like some or most people should not be pilots, some or most should not be lawyers. The exam is one red flag. We are not equipped to kill our clients, physically, like pilots, but we can with incompetence ruin their lives for much or all of their time in this world. We have inmates who should not be inmates for one easy example.
I remember the NY Bar exam as more of an endurance test than an actual measure of my knowledge of the law or my reasoning skills. Several of my Law Review classmates failed their first go at it. I didn’t attribute their failures to stupidity or incompetence, but rather their having gotten into a mindset that they had the same luxury of time to genuinely ponder the issues before them that they’d had to write L.R. commentary.
If I recall correctly, the N.Y centric portion of Bar Exam was two sessions of 3.5 hours each, dense with essays requiring very quick issue spotting and even quicker analysis. I was well trained to take the Bar Exam and didn’t have the baggage of Law Review to trip me up. Most of the L.R. takers passed their second attempt. One didn’t but she was in the throes of a nasty divorce; she passed the exam on her third try.
Like you, I am suspect of those who fail more than 2-3 times. As you note, its just not that hard a test.
I agree, Luke. Anybody can blow the test the first time, and one failed bar exam does not suggest to me that the taker is lacking. It’s the multiple failures that trouble me. And still, I’ll give them some benefit of the doubt, that it may not reflect a lack of competence, but the burden shifts at that point to the applicant.
Thinking back, I can’t remember how much time the test took. I do remember that as I took the New York bar exam, it was on an
EastHudson River pier while the Intrepid was being docked on the next pier over to become a museum. Watching them manuever this absolutely enormous carrier to the dock was something, and I must have spent half an hour just watching the scene. I also remember going to the nearest bar from the pier afterward, where John Madden was filming a lite beer commercial. We all shook Madden’s hand, which had a Superbowl ring that was nearly as large as the Intrepid. It was a fun day all around.Thank you.
Good thing geography wasn’t part of your exam
lol. Right you are.
Yep, I failed the bar exam the first time around, and my lack of effort in preparing and the resulting time management issues during the exam itself were to blame. I was on law review and had always been a pretty good test taker, so I thought how hard can it be to just pass the damn thing. There was no incentive to get a good grade. All I needed to do was pass. Moreover, at the time I was already practicing law (because of the Wisconsin diploma privilege) and had a major brief to write. It was hard to get motivated to jump through a stupid hoop when I had real work to do. I greatly underestimated the difficulty of the exam. The second time around, of course, I took no chances, and prepared as if I needed to ace the exam. What was key was lots and lots of practice exams. The first time around, there were sections on the exam where I only finished maybe 2/3 of the question, whereas the second time around I pretty much finished all the questions.
On the larger point, I read this post by Carolyn Elefant and was similarly troubled. On the one-hand, I’ve never really been all that good at being an employee per se. I like being my own boss, and cringe at the thought of having to explain in a job interview with a potential employer why a previous employer and I didn’t see eye-to-eye. That doesn’t mean I don’t have a strong sense of responsibility towards those who I’ve assumed responsibility towards. It may just mean I’m not very good at making sure I’m not five or ten minutes late when my tardiness isn’t going to affect anyone negatively.
On the other hand, I’m troubled by the implication in Carolyn’s post that it’s okay to leave potential clients in the dark about one’s experience. I think the solution has to be both a more widespread buyer-beware mentality among potential consumers of legal services and more widespread honesty about such matters among attorneys. I can honestly say in my own case that I have been very upfront with potential clients on that score regarding my experience, my successes and my failures. Some of them have hired me anyway.
You’re welcome.
Sometimes it’s not about the test-taker.
In the summer of 1996, I was preparing for the PA exam. The passing standard through Feb 96 was 130 but, due in part to PA’s rep as the easiest exam in the region, in July 96 it was increased to 135. I scored 132 or 133 (the exact score escapes my memory and is, ultimately, irrelevant) which would have made me a lawyer any time prior to and including Feb 96.
At this point, I’m sure many of you would argue it was actually my fault for not adequately preparing, etc; and, perhaps you’d be right. However, what happened next, in my opinion, proves my point: when I sat again for the very next offering of the PA exam in Feb 97, the passing score was set at… you guessed it… 130. Sadly, I scored a 128.
Needless to say, at that point in time my confidence and motivation were shot. My third time at taking the exam was not just a failure, but a complete and utter failure. My head and heart simply weren’t in the game after such narrow and bitter defeats. And I’m not so sure anyone could blame me. Although, I do now question why I even bothered with the third attempt at the exam.
Anyhow, fast forward to 2002, four years removed from that awful time in my life, and I passed the NC bar on my first go. I don’t think I was any less qualified to pass a bar exam, and be a lawyer, in 2002 than I was back in 1996. I was simply in the wrong place at the wrong time.
Yes, but, what about Cousin Vinny? Oh, yeah: fiction.
Flunking the bar exam once shouldn’t be the final straw, but more than once starts making me wonder about both native intelligence and work ethic, plus time management and organizational skills.
Some of the best and hardest working lawyers I know are solos. On the other hand, virtually all of the laziest and least competent lawyers I know are also solos. The problem is that there is no one to decide they are good enough to hire and then no one to fire them when they deserve it.
In an age where assigned counsel can get $75 or more an hour, no secretary is necessary, and a home office is enough, too many lawyers who can severely damage the interests of clients can tread water and continue in this profession as solo practitioners.
Again, having been a solo for almost half of my career and having admired many of them over the years, there are certainly lots of exceptions. But, I doubt many of the exceptions failed the bar exam more than once before joining the club.