Area of Specialization a constant dilemma of lawyers

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Lawyers trying to decide whether to specialize face a challenging dilemma. For starters, deciding to specialize implies narrowing your point of interest to a potentially fatal degree. The annals of burnt out attorneys are rife with stories of those who became experts, then became pigeon-holed, then bored, tired, and finally saw no other way out than to leave the practice.

And yet many agree with Mike Wilens, President of West Group, one of the largest legal publishers in the world. When asked what he thought about the lawyer of the future, he said, ''if you don't have a unique value proposition, you'll be in a dog fight. General practitioners get their lunch eaten by specialists. General practitioners are in trouble.''

And yet others disagree.

''My practice has always been a general trial practice,'' comments Brian O'Neill, one of America's leading trial attorneys. ''I'm not a specialist in anything. I try any kind of case from copyright cases to criminal cases to patent cases to environmental cases to business cases. I do both plaintiff's and defendant's work-about half and half. And I have resisted the move to specialize.''

Most analysts think O'Neill is in a growing minority of lawyers with general legal practices. But he is not alone.

What's Involved

On the surface, deciding to specialize your law practice involves a very simple question. For instance, ''do I want to spend all my time working on DWI cases, or should I accept anything that comes through the door?'' But dig a little deeper and the question becomes more complex. For many, the question involves potential financial gain and standard of living. For others, it is a matter of personal preference. And for still others, the decision to specialize is influenced by the community in which they practice, or the legal organization of which they're a part.

In large part, all of the preceding dictates how a lawyer will respond to the question: to specialize, or not to specialize? In some instances, the answer will be quick and conscious; in others, the myriad vagaries of time and the marketplace will lead the attorney-possibly over a number of years-to a thriving particularized practice. And still others may resist the temptation or push toward specialization altogether.

The Case for Specialization

When asked what advice he would give to young lawyers, Montana Supreme Court Justice James C. Nelson said, ''if I had it to do over again, I'd …. specialize. It's hard to do in a small rural state, but the law is becoming so complex that in most areas, you'd be well served to pick an area you enjoy and learn everything you can about it and specialize in it.''

Many lawyers agree with Nelson's perspective. Over the last 50 years, the world's increased complexity has spawned increased legal specialization. Lawyers deciding to specialize have literally hundreds of areas from which to choose. And within specialization, the trend is toward finer and finer segmentations of the practice.

Over the last 25 years plenty of lawyers have specialized in medical malpractice, securities law, bankruptcy, or criminal defense. But today an increasing number of lawyers are starting to drill down into those subject areas, offering their clients know-how and particular expertise in OBGYN malpractice, Sarbanes-Oxley compliance, consumer debt restructuring, or white collar criminal defense-to name only a few.

In part these increased specializations are a result of the need to differentiate yourself in the legal marketplace. To reiterate Mike Wilens, ''general practitioners get their lunch eaten by specialists.'' However, company needs and, in response, the legal marketplace are also leading many attorneys into an increasingly specialized practice.

''I thought I was going to have an interesting career in products liability and mass tort,'' comments Jan Conlin, a partner with Robins, Kaplan, Miller & Ciresi. But in 1990 her firm received a large patent infringement case and she was recruited to work on it.

Ms. Conlin explains that in recent years many companies have gone from looking at their patent portfolios ''purely from a defensive standpoint to saying that if I have technology in that portfolio that I could license or otherwise seek recovery on, that's something I need to do because that's an important return for our shareholders.''

Many companies make significant research and development investments in technology, but find they can't commercialize everything resulting from their efforts. These companies look at their non-commercialized portfolios and ask, says Ms. Conlin, 'can I derive revenues from licensing that technology?'

Companies like these hire attorneys like Ms. Conlin to assist them with that process, which is one of the reasons she has specialized in the practice of IP litigation.

Other organizational needs can also influence an attorney's practice path. When Ms. Conlin was starting to practice law, her firm ''didn't have an in-depth IP practice bench,'' and so she was recruited to assist. But if you're a corporate attorney, your degree of specialization is largely dictated by the needs of the business, and the size of your staff.

''As a general counsel, a business is a business,'' comments Kris Bruer, Vice President and General Counsel for Telex Communications, Inc.. Even though the nature of Telex's business is highly specialized and technologically specific, the day-to-day legal needs of the company involve ''HR issues, financial SEC reporting issues, real estate issues, and any number of other general corporate issues.''

Ms. Bruer is General Counsel in an organization with a small legal staff. Some corporate law departments employ over 200 in-house attorneys. Large companies like these typically have specialists dealing with very particularized areas of the law. So in some instances, the size of the law office-regardless of whether it's a private firm or a corporate law office-can influence the degree to which attorneys specialize.

The community in which you practice can also influence specialization. Montana Supreme Court Justice James Nelson noted that specializing can be difficult in a small rural community. However, having noted that caveat, for twenty years he practiced law in a small rural Montana community that to at least some degree required the he specialize in-among other things-the laws governing oil and gas production.

Again, in addition to the nature of your legal organization, community needs can also affect the focus and degree to which you specialize.

Associations, Educators, Vendors Respond

In response to the trend toward greater specialization in the practice of law, legal associations, legal education providers, and vendors have answered in kind. Over the last 20 years the ABA has taken an increased interest in the specialized practice of law. Not only are there an increasing number of special law practice groups, but those groups are taking a deeper interest in establishing specialized practice credentials and training their members. For example, in 1993 the ABA adopted a set of Certified Elder Law Attorney (CELA) practice standards and began accrediting certification organizations meeting them. In 1995, the ABA authorized the National Elder Law Foundation (NELF) to grant certification in elder law to attorneys meeting NELF's requirements. Since that time, many attorneys have obtained their CELA certification.

Responding to the needs of increased specialization, national and local CLE providers have created an increasing variety of highly specialized courses. These national and local courses feature experts from myriad practice areas that instruct their attendees in the subtle vagaries of any one of a number of legal specialties.

Vendors, too, have responded to the increased specialization of the legal market by offering legal tools specifically tailored to particular needs. West Group produces Westlaw and a variety of other products, many tailored to particular legal specialists. And ''in late 2002,'' comments Lou Andreozzi, President of LexisNexis, ''we redesigned our approach to the small firm practitioner. Now we're offering more tailored online products for these attorneys… tailored for their practice specialties and/or for their jurisdictions.''

Practical Considerations

Lawyers trying to decide to specialize, or in what area of the law to specialize in, face several different issues. Some of those issues include: the needs of clients and the market, financial concerns, and personal interest.

Obviously two of the most important considerations are your clients and their needs. The simple fact is, unless businesses or people are producing products, or have service needs in a particular area, the marketplace won't be able to support your specialization. You may be truly interested in entomology, but unless you know people with legal needs involving the scientific study of insects, the market won't support a legal practice in the area.

One of the biggest reasons to specialize is income. Generally speaking, most people who specialize will earn more and have higher annual salaries than their more general practice colleagues. That is certainly not always the case, but the more know-how and value you can provide a client-providing you're practicing in an area of law that's needed-the more you should be able to charge for that knowledge.

And finally there's the not inconsequential consideration of personal interest. While some attorneys can become interested in just about anything, most of us don't share that gift. Hopefully, all of us have spent our young lives developing interests in a variety of different topics, continuing-as we grow older-to differentiate and focus in on those interests.

Regarding the selection of a legal specialization, it is a good idea to cultivate patience. According to Jack Levin, Senior Partner at Kirkland & Ellis, and the author of Mergers, Acquisitions, and Buyouts, ''By [the 70s] I was out of law school 9 years, but I felt that I hadn't yet found a spot that I was enjoying. Tax was intellectually stimulating, but there wasn't enough active involvement in'' negotiating and some of the other aspects of mergers and acquisitions work. That's when Levin ''began representing large companies. I went out and began to negotiate transactions.'' And it was then Levin finally found his niche, an area of practice he's continued in to this day.

Never underestimate the importance of working in a subject area in which you believe you can remain interested, particularly over years of practice.

The Case Against Specialization

For most attorneys, the largest reason not to specialize is personal. Many attorneys consider legal specialization too limiting. If, for example, you are contemplating practicing probate law, and you look into the future and see, twenty years hence, a legal practice with few digressions from probate, it may leave you with an empty feeling in the pit of your stomach. Others might look down that road and feel comforted. In the final analysis, the decision to specialize your practice is a very personal one.

Two other aspects of deciding not to specialize have already been noted, but are worth repeating: community, and organization. If you find yourself in a small rural community, the ability to specialize may be difficult. Because the practice needs of most small towns are very general, most small town attorneys lean toward generalization.

The kind of organization in which you work also affects your ability to specialize. If, for example, you're general counsel of a small company, you'll likely have few alternatives to being a generalist. The dictates of the job will require your opinion on a variety of legal issues. If, on the other hand, you're an associate in a mega-law firm in a large metropolitan area, chances are the needs of the law firm will dictate specialization.

To specialize or not to specialize your law practice is a simple question. But the answer can involve a variety of complicated issues. Community, finances, organizational issues, degree of expertise, the needs of the marketplace and your clients can all influence your decision.

Most legal analysts agree that lawyers will continue to focus their practices, but not always. In the end, an attorney's personal preferences may be one of the largest considerations in determining how specialized his or her practice becomes.

Robins Kaplan LLP

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