Biglaw, Boutique Law Firms, Intellectual Property, Patents, Small Law Firms

Beyond Biglaw: The Limits Of Lawyers

Lawyers, it's not all about you.

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Biglaw associates are used to the “black hole” effect when it comes to their assignments. Sure the work is important and valuable, but because of the disconnect between a typical Biglaw attorney and an actual client, it can feel like any given assignment is destined for a “black hole,” rather than serving as a building block for solving a client’s problem. The further removed the lawyer is from the client, the more pronounced the effect. It can be a morale drainer, especially if it looks like the lawyer will never get the chance to work directly with a client on a matter of significance.

Working at a boutique or smaller firm, where there is more direct client contact by necessity, presents a different challenge to a lawyer’s motivation than the “black hole” effect. Because at a smaller firm, or even for partners in Biglaw firm lucky enough to make the adjustment from service partner to a true “counselor,” the lawyer in close contact with a client must confront the inherent limits in the attorney-client relationship. Yes, it can be much more rewarding to have a practice where you feel like you are partnering with your client to get things done. But it becomes all the more frustrating when you give advice, even good advice, that goes unheeded by that same client….

Forget about screw-ups — they are frustrating by nature and a separate issue. With screwups, it is simple. They need to be fixed and not repeated. What I am discussing can be even more difficult to deal with. When effort is put in to come up with a workable strategy that can really help the client. And that strategy is not implemented.

Sometimes the best way to learn a lesson is to be on the other side of an issue. In my case, I learned a lesson about the limits of lawyers when I was briefly in the position of potential client, rather than lawyer. I have always loved games, and had even created and played a few with friends while in grade school. Almost ten years ago now, I had an idea for a mega-split-the-pot game that would combine a corporate charity with a television show and a huge jackpot. The game would involve an accumulating pot over the course of a year, and players would be able to buy entries using text messages, at checkout in retail/ecommerce locations, and other ways. Half the proceeds would go to a designated charity, while the other half would be distributed over the course of the year in small chunks, with a grand jackpot at the end. The whole thing would be tied into a weekly television show, which would both highlight the good work of the designated charity and give away the weekly prizes.

There were obviously a lot of legal issues that needed to be resolved if this game would ever become a reality. Everything from gaming/lottery law, to entertainment law, to non-profit tax law. At the time, I was an associate at a global law firm that actually had all the legal talent necessary to pull it all together. Colleagues generously took the time to help address some of my overriding concerns, and get me to the point that it seemed feasible that this could happen, with the right partners on the charity and television ends. But as valuable as their advice and legal acumen was, there was a limit to what they could do — even if I had an unlimited budget for their advice, or they agreed to do everything pro bono. Because it was my idea, and my potential business, and if I truly wanted to make something of it, the burden was on me to find the right partners. And to convince them to push things along. That is where things got stalled on that particular idea, since I was really busy with my day job at the time. I am even busier now, but I still think it is a good idea. So I might look to pick it up again. Someday.

My nascent steps in transitioning from lawyer to client with the split-the-pot project remind me of a similar situation that comes up for patent practitioners quite often. A client comes in with an idea that they want to patent, and the patent lawyer starts drafting the application. Along the way, the patent lawyer starts thinking about ways to improve the invention. Perhaps some of those ideas legally make the patent lawyer into an actual co-inventor. There is plenty of legal ethics-related discussion of these scenarios for those who are interested. The main point is that patent prosecution typically presents a fluid situation where the lawyer can conceivably shift from counselor to partner. The lines are not always clear. But for many of my colleagues over the years who focused on patent prosecution, brainstorming with inventors was one of the most rewarding parts of their jobs.

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Anyone practicing law needs to consider themselves fortunate when they have the opportunity to really counsel a client, and become a partner in helping them achieve personal or business goals. And no matter how good a lawyer one is, it is also important to recognize that sometimes there are limits to an attorney’s impact — even on a receptive and trusting client. Young lawyers in particular need to be realistic about what it is possible to accomplish on behalf of a client. Without ever forgetting that even though lawyers have limits, it is always our duty to try and overcome them on behalf of our client’s best interests.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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