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The Myth of Solo & Small-Firm Bias 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.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.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? A lawyer-discipline office is reactive. Our office
investigates complaints that are filed with us—we 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.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 world—attorneys who regularly
receive complaints for a whole host of offenses, some involving dishonesty
and others involving competence and client service—overwhelmingly
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. Notes 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. |
