Pro Bono, Public Interest, Small Law Firms, Solo Practitioners

Why Must Solos Bear the Burden of Access to Justice?

Last week, the New York City Bar released a report, Developing Legal Careers and Delivering Justice in the 21st Century. To the bar’s credit, it acknowledged the role that starting a firm can play in addressing joblessness in the profession.  To this end, the bar proposes to create a New Lawyer Institute that will provide training and advice to potential small firm and solo practitioners.  And while I realize the concept of starting a firm as a way to launch or continue a legal career in the absence of other options is hardly revolutionary (I’ve been blogging about it almost eleven years), in a universe where many law school placement offices direct students to unpaid internships or non-legal positions, the renewed focus on the startup option is refreshing.

But as I read more about the program, I began to wonder if the goal is to teach lawyers to start firms as an end in and of itself or as a means to expand access to justice. According to the Report, the program includes the standard “Starting A Law Firm 101″ fare — obtaining insurance, business forms, technical needs and “benefits and cautions of cloud computing” (but nothing about the benefits and cautions of housing files on site in a physical office).  Meanwhile, substantive classes focus on “Divorce Law 101, Handling Cases in Family Court, Estate Planning Basics, New York Civil Practice, Introduction to Land Use and Zoning in NY, Basics Residential Real Estate Closing, and Everything You Wanted to Know About Landlord/Tenant. NLI participants will be required to take a set number of credits in both practical skills and substantive law areas” (page 113).

Herein lies my beef with the New York City Bar program….

These standard courses are fine far as they go, but the problem is that training lawyers to practice in already saturated practice areas does nothing to grow the pie, and instead leaves lawyers fighting over the the best piece – in this case, the set of clients who actually have the budget to pay. In the short run, New York’s program may help reduce legal fees. After all, if the New York bar subsidizes training, new solos may be able to cut their rates and make legal services available to more clients.

The problem is that even with a head-start on knowledge combined with techno-powered efficiencies, there’s only so low that lawyers can go. Legal fees are only one component of the overall cost of a case. Deposition costs, transcript and expert fees, not to mention time spent sitting in court waiting for cases to be called — all drive the price of legal services. Plus, as Scott Greenfield observes, there’s the cost of that law degree that needs to be paid off. At some point, fees get so low that lawyers can’t sustain themselves without cutting corners at the expense of the clients we hoped to help.

Access to justice is a problem for the profession, but it’s one that all lawyers share.  For that reason, I think that we need to divorce our conversation about access to justice from the problem of unemployment and starting a law practice. Not only is it unfair to view solo practice as the solution to access to justice, but we also cheat the entire profession by confining solo practice to low-bono work rather than encouraging them to explore new avenues for growth that in the long run might expand more meaningful access to justice.

So what would my curriculum look like? I’d focus new lawyers on the most cutting-edge practice areas imaginable. Not just estate planning 101, but estate planning dealing with disposition of digital assets. Not just family law, but subpoenaing and preservation and admission of social media and electronic communications in a family law case. I’d train new lawyers on e-discovery and information privacy and implementation of the Affordable Care Act. This kind of training will enable new lawyers to attract more-complicated and higher-paying cases or to offer their services on an of counsel basis to more experienced lawyers.  With varied sources of revenue, these lawyers could cross-subsidize lower-fee cases.

The New York City Bar deserves credit for recognizing that starting a practice can help lawyers launch their careers. Now the next step is to make sure that they can keep going.

Carolyn Elefant has been blogging about solo and small firm practice at since 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at or follow her on Twitter at @carolynelefant.

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