THE MYTH OF SOLO & SMALL-FIRM BIAS
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (December
2007)
There exists a
long-held belief that lawyer-discipline systems are biased against solo
practitioners and lawyers in small-firm practices. This belief is sufficiently strong that
states have conducted extensive studies of this claim as part of their periodic
reviews of the disciplinary system.Ftn 1 The issue
regained steam in the past year when it was a topic at a joint presentation of
the Association of Professional Responsibility Lawyers (APRL), the National
Organization of Bar Counsel (NOBC), and the ABA Center for Professional
Responsibility.Ftn 2
The presentation took it as an
uncontroverted fact that solo and small-firm lawyers are complained against and
disciplined in greater proportion
than their numbers in the bar as a whole.
The
Director’s Office does not
specifically keep statistics based upon the size or nature of an attorney’s practice.
Nevertheless, it is indeed likely true that a disproportionate number of
the complaints received by the Director’s
Office are against lawyers in solo or small-firm settings. That solo and small-firm lawyers are more
often complained about intuitively
seems valid, but are they disciplined more
often? Unfortunately, this may be
accurate as well. And even when limiting
the discussion to attorneys who are seriously
disciplined, as in disbarred, the evidence indicates that the same may be
true. Do these facts establish that any
actual bias exists, at least if not animus then perhaps an unintentional bias? Or is this actually an enduring myth that
finally should be laid to rest?
Who Ya’ Gonna’ Call?
A
lawyer-discipline office is reactive.
Our office investigates complaints that are filed with us¾we are not out there seeking complaints from unwilling
clients, judges or opposing lawyers.
There
are several factors working to the collective disadvantage of solo and
small-firm attorneys when it comes to being the target of a complaint. One is that clients of lawyers in larger
firms have options: as a young associate in private practice, a call to my
senior partner complaining about my work or threatening to take the client’s
business elsewhere would have been a much greater potential threat to my continued
employment than any ethics complaint.
Solo and small-firm lawyers usually lack a supervisor similarly able to
pacify an unhappy client before a complaint is filed.
A
second factor is that solo and small-firm lawyers are more likely to have
people as clients. This statement
usually generates a few snickers when made at CLE presentations or in talking
with law students. But think about
it. Divorce, custody, criminal defense,
immigration, personal injury or workers compensation matters are the regular
stuff of many solo and small-firm practices.
They are also highly emotionally charged situations for the clients
involved. Any frustration on their part,
no matter how minor, especially if compounded by even one or two phone calls
not returned promptly, can turn into a complaint. From a disciplinary perspective, solo
practitioners who have people for clients are undoubtedly in a high-risk
occupation!
A
third factor in ascertaining why solo and small-firm lawyers seem to generate a
disproportionate number of complaints is that they may lack the support of a
mentor or other lawyers to consult before engaging in conduct that may lead to
a complaint. They also may lack a
supervisor to whom they are regularly answerable, such that procrastination
issues are not dealt with internally.
And finally, as to discipline, when a complaint is received, solo and
small-firm lawyers may be less likely to hire experienced counsel to assist
them at an early stage in the disciplinary process, when small issues can
expand, particularly due to noncooperation.
One
of the harsh facts of life is that allegations that solo and small-firm lawyers
engage more frequently in certain types of misconduct may have some
validity. Failure to return phone calls
is beyond doubt the most prevalent allegation against attorneys the Director’s
Office receives. Busy solo
practitioners, especially those without any support staff help, simply may find
it hard to return all calls promptly, even when their intentions are good. From an unhappy client’s perspective,
well-intentioned isn’t good enough. Good
office procedures thus are a must for solo and small-firm lawyers. There are many courses and bar association
sections devoted to helping solo and small-firm lawyers in this regard; such
lawyers should take advantage of these resources. Less-experienced lawyers in solo or
small-firm settings especially should work to establish solid procedures early
in their careers.Ftn 3
There
are also likely explanations for solo and small-firm lawyers’ disproportionate
involvement in the most serious disciplinary matters, such as those that result
in public discipline, including disbarments.
While high-profile criminal misappropriation cases involving dishonest large-firm
lawyers have occurred (James O’Hagan or David Moskal,
for example), far more frequently it is a solo or small-firm practitioner who
dips into client funds. The lack of
institutional oversight, such as may exist within a larger firm, may explain
this discrepancy in part. Unintentional
misappropriation also can occur in small practices more easily due to poor
recordkeeping procedures.
Frequent
Flyers
The
“frequent flyers” of the disciplinary world¾attorneys who regularly receive complaints for a whole
host of offenses, some involving dishonesty and others involving competence and
client service¾overwhelmingly
are solo practitioners. This should come
as no surprise since few attorneys are willing to risk employing the “frequent
flyers” or even want to associate with them.
It usually doesn’t take long for such attorneys to depart any law firm
and end up on their own, if only by default rather than choice.
None
of the above discussion is in any way intended to disparage solo and small-firm
lawyers in the least. These categories
include countless outstanding lawyers about whom complaints are never received
and likely won’t be. The Lawyers Board
has been blessed to have several such lawyers serving as its members; many more
volunteer to be district ethics committee investigators.
Even
critics of lawyer-discipline offices are hard-pressed to show that any actual
bias or prejudice against solo or small-firm lawyers exists. The statistical basis for the myth of such a
bias can be explained. Still, for some
people perception will always be their reality and vigilance certainly remains
necessary to prevent this myth from ever becoming reality. For now, however, it is indeed time to put to
rest the myth of any actual bias in the lawyer-discipline system against solo
practitioners and small firms.
2 These organizations were also featured
in last month’s column concerning their listservs.
3 See,
e.g.,
Jorgensen, “Inexperienced and Solo,” 62 Bench
& Bar of Minnesota 5 (May/June 2005), pp. 12-15.