INEXPERIENCED & SOLO
By
Kenneth L. Jorgensen, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (May/June
2005)
A
member of the State Bar shall not willfully or habitually perform legal
services for a client or clients if he knows or reasonably should know that he
does not possess the learning and skill ordinarily possessed by lawyers in good
standing who perform, but do not specialize in, similar services … unless he
associates or … professionally consults with another lawyer who … possess[es]
the requisite learning and skill.
Rule 6-101(A)(1), Calif.
Rules of Prof. Conduct (1975).
In 1972 Rider Lewis
was admitted to the California bar and immediately began solo practice. Seventeen months later, a prison inmate
retained Lewis to probate the inmate’s deceased wife’s estate, even though
Lewis had no probate experience or training.
Initially, Lewis enlisted the assistance of an experienced probate
lawyer to get Lewis appointed as administrator of the estate. Unfortunately, Lewis did not seek further
assistance and, having failed to perform fundamental probate administration
tasks such as preparing an inventory and filing federal and state income,
estate and heritance tax returns, he found himself in the midst of lawyer
discipline proceedings.
The California Supreme
Court concluded that Lewis’s ethical violations were the direct or indirect
result of his “complete lack of familiarity with probate law.” Although the Court concluded Lewis violated
the California ethics rule requiring competence, it stayed his 30-day
suspension and placed him on probation for a year. A concurring opinion by the chief justice
notes the paradox created by the California competency rule for the new lawyer
who chooses solo practice:
The burden of this [ethics
rule requiring competency] unfortunately appears to fall disproportionately on
younger members of the legal profession who begin their careers as solo
practitioners. It is they who are most
likely to lack ‘the learning and skill ordinarily possessed by lawyers … who
perform … similar services … ,’ yet be unable to easily ‘associate’ or
‘professionally consult’ another lawyer possessing the requisite learning and
skill. It has been suggested that [the
competency ethics rule] may implicitly mandate an apprenticeship system for
beginning lawyers (citations omitted).
* * *
Law schools have
traditionally emphasized training in legal reasoning as opposed to legal
practice: ‘how to think’ rather than
‘how to do.’ While this may be a
necessary predicate to the practice of law, it places increasingly severe
burdens on law school graduates who are unable to secure employment with large
law firms or government agencies where they have access to advice from
experienced colleagues.Ftn 1
Current ethics rules
tend to be less demanding in their treatment of new lawyer competency. For example, the comment to Minnesota’s
competency rule expressly states that special training or prior experience is
not required and that a lawyer can undertake a legal matter in a “wholly novel”
field of law through “necessary study” or by associating with experienced
counsel.Ftn 2 However, to the extent the California rule
was unduly onerous, current ethics rules likely understate new lawyer
competency requirements. Courts continue
to demand a level of basic legal knowledge regardless of the lawyer’s
experience and impose discipline or other consequences when that knowledge is
lacking.Ftn 3 Examples include a lawyer’s lack of
understanding of the difference between a secured and unsecured creditor in a
bankruptcy representation, erroneously believing that the medical malpractice
statute of limitations would not run until after the lawyer had obtained an
opinion from the client’s treating physician, failing to research how to
perfect a security interest in a liquor license, failing to enforce a judgment
or require the posting of a supersedeas bond during the pendency of a divorce appeal,
and repeatedly making improper objections during a federal trial.Ftn 4
More often than not,
competency problems (as well as ethical issues) for new lawyers stem from their
inability to identify or see the legal issue, rather than improper or
incompetent legal analysis. Lawyers
typically acquire this skill through experience, which includes observing other
lawyers. New solo lawyers have limited
opportunities to observe other lawyers.
Consequently, the key to honing one’s competency and ethics recognition
skills is to maximize the opportunities to learn from other lawyers, in order
to gain greater awareness of the situations in which competency and ethics
problems commonly arise.
§ KNOW YOUR LIMITS. Some cases simply demand greater competence or
experience than a new lawyer practicing alone can reasonably provide. Even where extensive research and
self-education efforts will enable the new lawyer to attain the necessary
competency, the question remains whether 100 percent of the time is properly
billable to a client.Ftn 5 Other cases may require financial or other
resources beyond what a new lawyer can provide.
For example, a newly admitted Minnesota lawyer was suspended after she
accepted a medical malpractice case and advised her client to sign a $7,000
loan agreement to pay medical expert fees because the lawyer was financially
unable to advance the expert costs. The
loan agreement obligated the client to repay over $20,000 from the malpractice
settlement or recovery.Ftn 6 New lawyers facing these limitations should
consider associating with experienced counsel.
Another option is a fee-sharing referral arrangement with an experienced
lawyer. Ethics rules now permit division
of fees, including contingent fees, without regard to the services performed by
each lawyer if both lawyers assume joint responsibility for the case. See Rule
1.5(e)(1).
§ DON’T TAKE EVERY CASE.
Resist
the financial temptation to take just any case.
Be selective, both in terms of what you substantively can handle as a
new lawyer and also the type of client.
The post 9/11 changes to immigration law and procedures have generated
significant demand for immigration counsel.
As a result, disciplinary agencies across the nation have experienced a
spike in ethics complaints about the incompetence of lawyers handling
immigration cases. In Minnesota, a
disproportionate number of these complaints involve new or relatively new solo
practitioners.
Immigration law procedures
are regimented and swift. The
consequences of procedural miscues can result in Draconian client
consequences. Lawyers unfamiliar with
immigration procedures should not dabble in this area of law. New lawyers desirous of entering immigration
practice would do well to associate with experienced counsel and gain
membership in the American Immigration Lawyers Association (aila). See www.aila.org.
Where multiple
attorneys have already represented the client, it is prudent to obtain client
authorization to talk to the previous lawyers before accepting
representation. Client unwillingness to
provide such a waiver deserves further scrutiny and consideration.
Be cautious of
creating unrealistic client expectations or overselling your
representation. Clients with unrealistic
expectations are less rational when considering settlement offers, lodge more
objections about fees, and are more likely to file ethics complaints. Competent representation includes being frank
when the merit of the client’s claim or the chances of success are
marginal. A successful small firm lawyer
once commented, “Two of my best clients are persons whom I advised in the very
first representation that it was not worth
it to pursue their claims.”
§ MAINTAIN YOUR LICENSING OBLIGATIONS. Minnesota
attorney license fees must be paid annually.
Mandatory continuing legal education (cle)
reports are filed every three years.
These dates should be included in your office calendar or tickling
system. Continuing to practice after
failure to pay the fee or comply with cle
requirements constitutes the unauthorized practice of law and can lead to
formal disciplinary action.
Personal obligations
can also have law license consequences.
Countless lawyers have been suspended over the years for failure to file
income or employee withholding tax returns.
Within the last decade, the obligation to pay child support or
maintenance has become a basis for license revocation for all professions,
including lawyers.Ftn 7
§ LEARN HOW TO HANDLE CLIENT FUNDS. Solo lawyers can hardly conduct business
without a trust account. Learn the trust
account record-keeping requirements.
Educational materials, including sample trust account records and a
manual on electronic maintenance of trust account records are available on the
Lawyers Board Web site, www.courts.state.mn.us/lprb. Familiarize yourself with what goes into the
trust account and what does not. Do not
leave earned fees in the trust account for extended periods unless the fees are
in dispute. Do not disburse client funds
until the corresponding deposit has been made.
Refrain from disbursing your earned fees from the trust account directly
to personal or law office creditors; transfer earned fees to your office
account before making such disbursements.
§ BE FORTHRIGHT ABOUT MISTAKES.
Despite
best efforts, lawyers still make mistakes and commit ethical violations. Rarely are the consequences as drastic or
dire as most lawyers imagine. At the
same time, the fallout is always far greater when the lawyer compounds the
mistake or violation with dishonesty.
Forthright explanations and cooperation can mitigate the severity of
disciplinary sanctions, whereas lack of candor and cooperation always increase
the penalties.
§ AVOID ISOLATION. Good solo practitioners may
practice law alone, but they do not isolate themselves from other lawyers. Peer pressure and the acknowledgment of other
lawyers or professionals is a critical component of professional development. Even criticism from those we respect can play
a large role in developing a positive professional perspective. Recently, St. Thomas Law School and the
Center for Ethical Business Cultures sponsored a seminar that included
interviews with two recently disbarred lawyers, one who was already
incarcerated and the other awaiting sentencing.
Both were solo practitioners and each offered different motivations or
rationalizations for their criminal behavior.
Both acknowledged, however, that their isolation from other lawyers
contributed to their downfall. Isolation
prevented one from seeking financial assistance that was readily available from
others. The other postulated that
isolation from his professional peers prevented him from being grounded in the
economic realities of law practice and permitted him to maintain the façade of
a successful lawyer when in fact he was a thief.
Minnesota lawyers have
access to a wealth of resources to combat problems associated with practice
isolation, including several available through the Minnesota State Bar
Association (msba). Recently, the msba formed the Solo
Pilot group for solo practice lawyers admitted in 2004. Monthly meetings include presentations by
experienced lawyers on issues unique to new solo practitioners. Other msba
offerings include:
§
New Lawyers Section -- offers professional
development opportunities through networking and socializing with other
lawyers.
§
General Practice, Solo and Small Firm Section -- provides solos with access to programs and
publications specifically designed to improve their practice.
§
Various Practice Sections -- devoted to specific substantive areas of law
practice that promote educational seminars and materials to assist lawyers in
maintaining competency. Many sections
have email list services that are extremely helpful in keeping abreast of
recent developments in the law. See also offerings of the Hennepin
County and Ramsey County bar associations at www.hcba.org and www.rcba.org.
§
Colleague Program
-- a lawyer-to-lawyer information service.
It provides the opportunity for an attorney member unfamiliar with a
legal area to talk to an attorney who is more experienced and knowledgeable.
§
practicelaw.org
-- a Web site for msba members
that delivers practice tools including forms and templates for legal documents,
sample pleadings, discovery checklists, and practice tips from experienced
practitioners.
Beyond assistance with
substantive law and procedure, the Minnesota
Lawyers Assistance Program offers free, confidential help to lawyers
affected by chemical abuse, depression, stress and other life-related problems.
See www.mnlcl.org. The msba’s
Life and the Law Committee works
closely with the Lawyers Assistance Program to stimulate discussion and provide
resources to the legal community regarding career satisfaction, mental and
chemical health, balance, and other quality of life issues.
Ethical resources and
assistance are also available through the Lawyers Professional Responsibility
Board and Office of Lawyers Professional Responsibility. The Lawyers Board Web site, www.courts.state.mn.us/lprb, contains
rules, opinions, articles, and other materials about Minnesota legal
ethics. Telephone advisory opinions
about ethical issues can be obtained by calling the OLPR at (651)
296-3952.
As a solo practitioner
you may practice law by yourself, but the availability of these resources
demonstrates that you need not be isolated and are never alone.
NOTES
1 Lewis
v. State Bar of California, 621 P.2d 258,
261-62 (Cal. 1981) Bird, C. J. concurring.
2 Comment to Rule 1.1, Minnesota Rules of
Professional Conduct.
6 In re Rhodes, 676 N.W.2d 267 (Minn. 2004).