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Pros and Cons of Going It Alone

published February 05, 2013

By Author - LawCrossing
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( 7 votes, average: 3.5 out of 5)
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Most lawyers in the United States are in private practice; meaning they are self-employed, rather than in government service or house counsel. But there are several ways of engaging in private practice. A lawyer may practice alone, or he may practice with others in a partnership, or he may be employed by a firm of lawyers. Although lawyers in each of the last two groups derive their income from the firm, they do it in vastly different capacities. The partner is one of the owners.

He has an equal voice with his other partners in the conduct of the firm. But a lawyer employed by the firm (usually called an "associate") has no such authority. He works for a salary on cases assigned to him by one of the partners.

Although the country lawyer usually practices by himself, and the city lawyer in a firm, this is not always so. In fact it is a very common arrangement in country practice to form a firm consisting of a lawyer who does most of the trial work and a lawyer who does most of the office work, and sometimes each of them will have as an assistant a younger lawyer. At the same time it is very common in city practice to have the lawyer who practices by himself, with an assistant or two.

So, what we are going to look at right now are the pros and cons of going it alone. Is it true, as Kipling said, that ''he travels fastest who travels alone"? Well, that depends. It depends on what you mean by "fastest."

In the final analysis, whether a lawyer should practice alone or in a firm depends upon certain personal characteristics. Each type of practice has its advantages, each its disadvantages. We are assuming, of course, that the lawyer is equally free to do either. This may be a totally unwarranted assumption. He may be going in with his father, either in a firm or in a partnership. He may want rural practice, in which case he will probably have to practice alone.

On the other hand, he may be greatly interested in the law of what we call "big business," in which case he will certainly have to go with one of the big firms representing big business. That particular goal, in itself, imposes still others: such firms, as we have seen, normally employ only the highest- ranking (scholastically speaking) graduates of the national schools. They pay them well, work them hard, and, if the young lawyer hasn't demonstrated within about ten years what they look upon as partnership qualifications and characteristics, out he goes, to make room for another neophyte.

We will assume, then, that you are free either to practice alone or to practice in a firm. Which should it be? There's no absolute answer. What would be best for you may not be so for another. There may be some who are equally well fitted for either. Looking first at practice alone, it is clear that one with such ambitions must have certain resources. First of all, he must have the desire and the fortitude to be his own boss. Now, being one's own boss is fine. There's no one to tell you when to open your office, when to come back at night, and not to take certain cases.

You may take time off for vacations whenever you wish. But, you "may" also take time off for hospitalization when and where you wish, except that there's no income coming in while you're laid up. How are you going to pay the rent? You may, indeed, take any cases you wish, including the trial that may last several weeks. During the time you are in court, day after day, who interviews your clients and who drafts the deeds and contracts that form the bulk of your day- by-day duties? Who, moreover, prepares the next case as you are trying this one? Who researches the law on the question of whether or not someone may validly agree that he will not compete with your client for the next ten years? No one, but you.

On the other hand, see what you get: a free man's life. To appreciate it fully you must have seen a good deal of life in the world outside the independent professions. You must have known the frustration of the well-deserved promotion gone to another, the humiliation of the public castigation, the utter panic of the employee who is "let go" after middle age. You must have been forced to compromise your ideals, to accept subservience as a way of life, and worse, cheerful subservience. If you have to lick boots, figuratively speaking (and many do), it is not enough that you cringe.

You have to look up and smile and assure old J.B. that you really like the taste of shoe polish. A stomach so strong requires years of conditioning. Many would prefer not to under take the arduous training.

You choose, perhaps, the law. It is a life of great independence. But there are degrees of independence, just as there are degrees of heat as we go from the flame of the candle to the flame of the blowtorch. At the very extreme of freedom in the lawyer's profession stands the practitioner alone.

However, one who stands on this pinnacle does not have, when he first makes the ascent, the security of his brother who turned from the lofty heights. The practitioner alone is just that-alone. His are the decisions, his are the responsibilities, his are the sorrows, and his alone are the rich rewards. Every time someone orates about the current craving for security and what it means to a free America, one should appreciate the fact that most of the legal profession goes it alone, a proud, cantankerous lot, wedded to the ideals of honor and truth but having a jealous mistress, the law.

Then there is the firm. A firm is an association of lawyers. Firms range all the way from the common two-partner association, a trial man and an office man, to the great metropolitan groups having a hundred or more lawyers, not all of whom, of course, are partners, and clerical staffs of two or three hundred employees. A lawyer's life in a firm, in any firm, is a far different experience from a lawyer's life as an individual practitioner. The outstanding difference is something the ladies' magazines are currently stressing-togetherness. In a firm there is always someone to whom you can go for counsel, for help, even merely for talking things over. Responsibilities are divided, and shared, and thus to solution of the client's problem may be brought a variety of specialists, a tax man, an antitrust man, a trial expert, and so on. It is a common belief among lawyers that the fees charged by such firms are higher than those charged by individual practitioners for like work. Whether this is actually true or not would be very difficult to say, but there is no doubt that the income of the average partner in a firm is substantially greater than that of the average lawyer practicing alone. Moreover, when illness occurs your check comes along just the same, and nothing collapses in vacation time because there's always someone else to lend a hand. Indeed, in some firms there is a retirement plan for the senior partners, and occasionally there is an understanding that a partner's widow will receive the same share of the firm's profits, for the next year, as though he had lived.

But it is as true with respect to a law firm as it is with respect to a rocket that for every action there is a reaction, for every thrust, a drag. All of this takes money, lots of it. The overhead is terrific. Salaries must be met on the dot, books purchased, and rent paid. In this situation the big clients, those whose retainers are essential to this scale of living, are, naturally, treated with the utmost respect. This is all right, up to a point. Respect, however, may shade off into deference, and deference into servility, and the day may come when the client is telling the lawyer, not vice versa. It takes a pretty gutty guy to say "No" to a hundred- thousand-dollar fee. Don't think it isn't done. It is. The question is whether often enough.

There's another side to togetherness, also. It is achieved at the individual lawyer's cost of building his own independence of thought and action. Responsibility in a firm is divided, it is true, also, but whether division of responsibility is advantageous in a professional relationship is a problem of its own, and there is no easy answer. Moreover, so far as the lawyer himself is concerned, the division of responsibility often results in a greater or lesser degree of specialization, which itself has a narrowing influence. Unless the firm is careful to move its young people about (some are) he may wind up knowing more about foreclosing mortgages than any lawyer in the Mid west (it was during the depression). This is commonly said to be fine for the firm and fine for the client, but some may be completely out of touch with the rest of the law and utterly unable to practice on their own, as they are ultimately required to do, when the depression runs its course.

These considerations take us to the heart of something very fundamental in the legal profession, and hence in the life you contemplate. It's rather hard to put into words. We have already considered certain aspects of a lawyer's life apart from the strictly professional phases of his practice.

He is learned in the history of man, his social problems, his fundamental guarantees, and the threats to those guarantees. If his training has been as we have suggested, he has the knowledge necessary to view the problems of the day in the light of the past. Very few of the problems we face in our society are brand new.

The lawyer's training has focused his attention upon mankind's recurrent problems as men have sought to live together in some kind of harmonious relationships. He has, in short, acquired the perspective of history. Legal problems, he has learned, must find their solutions in the prevailing moral and political philosophies of the times if the solutions are to be valid. Current legal problems in this country cannot be solved by applying the theories of Communism, nor can current problems in juvenile delinquency be solved by applying to it the practices of the Star Chamber. These things the lawyer knows because they have been at the heart of his studies. It has been his business to know them.

This training of the lawyer, then, his background, his position as spokesman for individual and group rights, and his governmental position as an officer of the court, all combine to place him in a position of potential community leadership, often realized as an actuality. It is no accident, no coincidence, that about half of the signers of the Declaration of Independence were lawyers and that more of our Presidents and more of our legislators have come from the legal profession than from any other. This is the tradition of the law. It is the lawyer's duty to exercise his great skills in part for the benefit of society of which he is a member. Certainly he has to make a living. But it is equally certain that he does not discharge his professional trust if he restricts his activities to the amassing of a personal fortune, if he serves only a private client for private gain, abandoning the public good to those who view it as a sow to be butchered, a goat to be milked.

To the degree that any kind of practice substitutes a narrow highly specialized commercialism for a broad professional viewpoint and duty it is to be both condemned and shunned. Possibly the reason for the low esteem in which our profession is held in some quarters is that some of us have scrambled for nickels in the gutter at the very time we have been shouting the hosannas of our profession at the top of our lungs, thus earning us at one and the same time the contempt of both the righteous and the wicked. That's a pretty neat trick.

Be on your guard about this, to whatever firm you may go. The vice is not peculiar to the cities. In fact the late John W. Davis, of one of the great New York firms, was a man who gave freely of himself in the public interest. Some small-firm practitioners may view the law merely as a drunk viewing a lamppost as a means of support rather than a source of light.

There's another way to get started in a solo practice without incurring a big overhead by way of rent, secretary, telephone, and all the rest. Sometimes you can arrange for "desk space" with another lawyer, or in a firm. That works this way: you are permitted to take over an unused corner of the office, sometimes in the library, sometimes, indeed, an unused office. You are permitted the use of the library, the telephone, and a typewriter. (Usually the secretary's services are not made available. She has enough to do for the partners.) The mailing address of the firm is yours. Normally the partners won't fuss too much if you ask them a hard question or two in a puzzling case. In return you make yourself useful. You will file pleadings for the partners at the courthouse.
(Incidentally, if you are smart you will treat the courthouse crowd, the county clerk, the bailiff, the register of deeds, and all the rest, with a good deal of consideration. Not only because human beings should be treated with respect and consideration, but because, from a selfish point of view, they can either be helpful to you or make things pretty miserable for you.) You will go to the abstract office and pick up the abstracts. You will interview witnesses sometimes, as you mature a little, and you may help the partners look up knotty points of law for their briefs. In short, it's a barter deal. You pay for your space with your work.

So, you see, we have no final answer as to which type of practice is best for you. You must weigh your qualities of mind and soul, so far as you are able, against the requirements of each type of practice, solo or firm. Possibly, as the cards fall when you graduate, you'll not have much choice. Maybe you're the lucky one, at that! But whatever your choice, or whatever the "choice" forced on you, never fail to make a part of your professional life an active participation in your bar association activities and in the life of your community. Why? Because you are a fiduciary, (Do you know what that word means? If not, look it up yourself, then ponder, alone, why that particular word is used.)

Not only because you are a fiduciary, however, though that alone is reason enough. But the business community itself is becoming increasingly aware that it is best served only by those whose professional standards are of the highest. The commercially-minded lawyer who devotes his entire time to making money and none to the advancement of the cause of justice may do a technically adequate job for his client, but the client has a right to demand more than mere technical competence.

Today the well-informed client is doing so. A few years ago an interesting article appeared in the Harvard Business Review entitled "How to Choose a Lawyer." In the paragraph headed "Discreet Inquiries" this question is asked, "What are the hallmarks of a good lawyer?" Several factors are stated in the answer. Two of them relate to his other clients, who they are, and their reputations. A third concerns the status given his firm by the professional rating agencies. Listen, now, to the other four:

To what extent is the candidate active in bar affairs? Does he or his firm have a relationship with a law school or bar group devoted to continuing education of lawyers? Has he ever participated in a forum or symposium conducted by such an organization?

What training has he had, and what is his professional history?

These inquiries are, indeed, revealing. What concern of the client is it whether or not the lawyer is "active in bar affairs"? Hope you know the answer by this time -- you and well-advised clients.

published February 05, 2013

By Author - LawCrossing
( 7 votes, average: 3.5 out of 5)
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