Tuesday • March 22, 2005

A call for answers from the demanding world of solo practice

[Permalink page]

Forward this article by e-mail

The birth of this blog has prompted solo practitioner and long-time blogger Carolyn Elefant to write a long post on her solo practice blog, MyShingle.com.  After reading her post I decided it would be appropriate for me to post a comment, and before I knew it I had written as much as she had!

I am reminded of the famous author -- who was it?  -- who closed a long letter by saying, "I would have written fewer words but did not have enough time to do so." My comment on Carolyn's site was not as concise or well-crafted as it might have been, because I was eager to respond.

Nevertheless, I've decided that it makes sense to republish her post and my response here on my own blog, mostly because I think she did a good job of expressing the frustration that busy practitioners often feel with ethics issues. 

So here's what Carolyn posted on MyShingle.com:

Thanks to David Giacalone for alerting readers to another legal ethics weblog, Ben Cowgill's Legal Ethics Blog.  Cowgill points out that his legal ethics blog  is third on the Internet, joining David's f/k/a ethical esq? and The Legal Ethics Forum. Actually, that's not quite right.  Because here at MyShingle, we've been blogging about legal ethics and malpractice issues for solo and small firm lawyers since our inception in December 2002 (one day, our archives will reappear so we can prove it!), covering topics like whether the bar disparately targets solo and small firm lawyers for discipline, ways to avoid the plight of other attorneys who became the subject of grievances and whether certain disciplinary actions were warranted. 

Of course, I'm no expert on legal ethics -  so I welcome the voices of those who know far more about ethics than I do.  At the same time, the proliferation of separate sites devoted to legal ethics brings to mind one of my peeves about the way that we lawyers approach legal ethics, starting in law school.  Because instead of integrating ethical discussion into each subject matter we teach, we ghettoize it, relegating it to a separate bar exam topic with the MPRE (multiple choice no less!) and teaching it separately as a course and as CLE.  Even the bar's Law Practice Management offices are segregated from the ethics office.

Sure, I aspire to carry out my professional obligations and all those noble goals that our Code of Professional Responsibility set out.  But as a real life practicing attorney, what I want to do most of all is serve my clients as best as I'm able and stay out of trouble. We solo and small firm attorneys are walking hypotheticals, living ethics questions every time we meet a client, every time we embark on a marketing campaign.  For example, can I market my clout to clients - or does that constitute an impermissible guarantee of results?  Can  bankruptcy attorneys recommend that our clients file for bankruptcy now before pending legislation makes it more costly or complicated?  Or are we conflicted from that advice because when bankruptcy is more expensive, the client may not be able to afford our service.  Can estates attorneys use the recent Schiavo story to sell clients on the notion of living wills and advance directives - or is that an undignified practice that takes advantage of others' tragedy?  Can we take a client who we know can't afford to pay and offer less than first rate service that we'd extend to one with more resources?  Or is the client better off without representation at all?  More and more, large firms are hiring general counsel, whose goals, among others, is to rationalize away - ah, no - address conflicts of interest and other ethical questions. All we solos have is bar counsel to call - and as I've discovered, some offices are responsive while others, not at all.   Unfortunate that the same offices that are all too eager to go after lawyers for what are often just innocent or unintended mistakes aren't there to provide guidance to lawyer to begin with.  So it's my hope that all of these new ethics sites can serve as a substitute, so that we solos and small firms can finally start getting what's most valuable to us about legal ethics:  not discussion or debate, and certainly not more discipline, but just some really good answers.   

And here's the comment I posted in response:

Thanks, Carolyn, for mentioning my new site in your post.

I certainly didn't mean to slight you by calling my blog the third legal ethics blog in the 'sphere. I've been reading your blog for a year or so, and I know that you do comment on ethics issues, especially as they are raised by news accounts of lawyers who have made mistakes. I only meant that my new blog appears to be the third blog that is actually devoted to legal ethics.

Incidentally, I plan to write a post very soon regarding the issue of whether disciplinary authorities "target" solo practitioners. In a nutshell, it is absolutely true that solo practitioners are represented disproportionately in disciplinary proceedings and as recipients of disciplinary sanctions. The real reason, however, is a systemic bias in the disciplinary system, including the dependence of the system on bar complaints by disgruntled clients. Solo practitioners are more vulnerable to bar complaints than lawyers in firm practice for a variety of reasons, as I will discuss at length on my own blog. Consequently, they receive more discipline. It is simply a case of "solos in, solos out" (not to be confused with "garbage in, garbage out", but analogous to that phenomenon.

Turning to your comment about the "proliferation" of ethics blogs, I don't think we have yet approached anything that could be called a proliferation. I also think it would be wonderful if we did! After all, legal ethics is not simply a matter of having some official agency lay out an official set of guidelines. Legal ethics is, rather, a dimension of the practice of law which involves a constant interplay between a variety of obligations and considerations. Consequently, it will never be possible to distill everything into one set of rules, much less one web site or one blog. We need all the minds, voices and life experiences that can be brought to bear on these issues, and so I say, "the more the merrier!"

Turning to your comment about the "ghettoizing" of ethics teaching, I always pointed out to my students on the first day of class that it is an unfortunate aspect of human nature that we can take anything important and make it seem obligatory and uninteresting by giving it a place of its own. I also tell them that a professional responsibility class can be the most interesting class in law school, because it's all about them, their careers and their lives, not about the substantive law they will bring to bear on the issues facing their clients. So I guess I would submit that how one thinks about the teaching of PR in the law schools is like saying whether a glass of water is half empty or half full.

You do make a valid point that ethical considerations need to be incorporated into the entire curriculum. That is actually happening more and more.

Thanks for all the other questions you enumerated in your post; they will give me some ideas to blog about in the weeks ahead. But I'll tell you this right off the bat: neither I, nor David Giacalone, nor the brain trust over at the Legal Ethics Forum, nor anyone else can provide pat answers or "silver bullets" to the most interesting and intriguing ethics issues that arise in the practice of law today. I have explained why in a post on my blog called "Introduction: The 'Three Don'ts' Don't Say Nearly Enough'.

Please know that I share your concern for the ethical challenges of solo practice. I will be writing about that quite a bit on my blog. I can tell already that we're going to have a great dialog -- and that's what it's all about, right?

Does anyone else wish to chime in?

[I revised the title and the introductory paragraphs of this post after I concluded that the orginal title and text might be misconstrued.  I'm still settling into the saddle as a blogger, so please bear with me.]

Posted by Ben Cowgill on 03.22.05
Permalink    Comments (1)    TrackBacks (1)
Filed in: Solo practice