Following up on my last post about the discipline system aiming at solos and small partnerships, I wanted to add to my discussion of attorneys working in BigLaw.
I am a solo now, but I was raised in my career in BigLaw. I spent many years in the ivory tower with my view of the Chrysler Building out my Manhattan office window, and I can truly say I’ve been there. I say that not to brag, but to say that I have a deep appreciation for the difference between practicing solo with individuals for clients versus practicing in BigLaw where the bills are paid by the Goliath National Banks of the world. It is a completely different world, and I think the differences can account to a large degree for why the State Bar disciplinary system seems to target the solos over the BigLaw lawyers. There is a good chance that it’s less of an internal bias at the Bar and more a result of these factors.
1. Time. Time is precious, time is king, and in BigLaw, it’s billable time that makes an associate’s world go ’round. When a BigLaw associate is asked to draft a brief, or prepare for a deposition, or take on any other task (major or not), she is not likely to be told “but don’t spend too much time on it.” For nearly any task, they have virtually unlimited time to get it done. Every little detail, every fine point, can be researched and fleshed out and cite checked a hundred times over. Senior associates have junior associates and paralegals at their disposal. A brief from BigLaw may take hundreds of billable hours of time to create, and you’re not likely to find an overturned case cited in it or even a comma out of place.
Compare that to the average solo representing an individual. If he has to respond to BigLaw’s brief, he is in big trouble. He has a limited number of hours to complete the work, which of course must meet certain ethical standards for completeness, advocacy, and honesty before the Court, and a client who will be screaming if the bill gets too high. I recently saw a request for fees in a motion prepared by a solo, and the hours spent on the motion were….9. I cannot fathom a BigLaw motion being put together in 9 hours. More like 90!
So how does time relate to Bar complaints? When a good lawyer has nearly unlimited time, he can do an amazing job on his work. That’s why BigLaw work does not often fail to meet ethical standards and result in Bar complaints. When that same good lawyer is squeezed for time, he can miss something. He can make a mistake that leads the case to fall apart, the client to complain and the Bar to prosecute.
2. Clients. Who can afford BigLaw representation? Large corporations, institutions, insurance companies paying the bill of individuals and the uber rich. They pay for that time everyone is spending writing an excellent brief. They are also sophisticated clients, often relatively frequent fliers in litigation and certainly frequent transactional players. They are the sort of clients likely to complain to the partner in charge of their representation when they are unhappy, to perhaps threaten to take their work to another firm, but they are not too likely to file a Bar complaint.
What of the clients of solos? Quite often, they are individuals or small businesses who desperately need things to go their way in the litigation or transaction. Often single-ride litigants and infrequent transaction participants, they don’t have a whole lot of clout with their attorney. When things go wrong, they need the Bar to step in, so they make their complaints.
3. Money. Money cuts more than one way in this discussion. For BigLaw, there is just a lot more money floating around. There is more money to settle matters with unhappy clients, if there are any (see points 1 and 2). There is also less money pressure for the firm to take on clients for whom they cannot do a really good job. (See point 4.) For associates, they are handsomely salaried and not looking to each billable hour for funds to pay the rent.
For a solo, many really need each client and his retainer. As the retainer is earned, it is spent on operating expenses. There is not often a pile of cash sitting there to settle any potential disagreements with clients, or refund fees that the client argues were not earned. Financial strain also leads some solos to accept cases that are not really within their area of expertise, but they really need the money so they’ll take on any work. When they can’t do the job as well as they need to, Bar complaints follow.
4. Breadth of expertise. BigLaw has amazing breadth of expertise. If the partner handling a matter is not an expert in a subject, one of her partners probably is. If not, she’ll get an associate to research it on a non-billable charge code until they are both experts.
A solo is one person with all the limitations that come from being just one. He has limited time to learn new areas of practice, and only so many cases coming his way in his primary area of expertise. It is the solo who is much more likely to reach beyond his knowledge and take on a case (often for financial reasons) that he really should refer to someone else.
***
I didn’t really appreciate it at the time, but in BigLaw I was practicing law with a great many luxuries. I surely complained about the hours, but little did I appreciate all the resources available to me and the lack of pressures upon me. A solo or small partnership lawyer is just not practicing this way. I tend to think that the perceived targeting of small practice attorneys by the Bar may simply be a result of a very different world where the pressures and limitations on the smaller practice significantly raise the risk of violation.