Heroes to the Public, Sole Practitioners Struggle for Respect Within the Profession

By William Domnarski

      The million-odd lawyers nationally in private practice break almost evenly into two groups: those who practice alone and those who practice with others in a firm. Sole practitioners made up some 48 percent of private practitioners in 2000, according to the American Bar Association, a percentage that has stayed roughly the same over the last several decades.
      In contrast, the number of lawyers in firms with more than 100 lawyers - a group scarcely recognizable 25 years ago - nearly equals, at 14 percent, the number of lawyers working in two-to-five lawyer firms. That the percentage of sole practitioners has hardly changed tells us something about what lawyers want to do with their professional lives. They want to practice by themselves. While they nearly constitute a majority, they are marginalized by an industry dominated by large firms. This is the story of our day.
      I have long been among the ranks of sole practitioners. After starting out with a clerkship in federal court and working two years as an appellate prosecutor, I struck out on my own and have never looked back. From rural Connecticut to mid-sized Minneapolis to downtown Los Angeles, I've handled pretty much everything in the law. I've drawn wills, closed real estate transactions, litigated personal-injury claims and handled divorces and criminal matters, both major and minor, just to name a few of the areas that have occupied my nearly 25 years in the practice.
      Only lately have I specialized in federal court work. Perhaps because I had read too much of John Mortimer's "Rumpole of the Bailey," I saw in sole practice the autonomy that English barristers enjoyed. I wanted what critical theorists call "the unmediated experience." I wanted to deal with clients, not partners for whom I worked, and I wanted to work directly with the law.
      It is a tough job being a sole practitioner. It is hard getting started, and once you get going, income nonetheless ebbs and flows, as does the need for office help. Sole practitioners who litigate have their own particular problems. They have ongoing logistical battles to cover court appearances, often made even more difficult by unsympathetic judges. They are also limited by their resources, making it difficult, if not impossible, to take on protracted litigation and other forms of practice that call for help from associates.
      On the personal side, sole practitioners struggle with ethical lapses and the debilitating substance-abuse demons of the profession at a higher rate than the general lawyer population. Sole practitioners battle loneliness and isolation - almost by definition - and struggle with motivational issues, so much so that there are Web-based support groups for sole practitioners. Finally, there is the problem of what happens to a practice when the practitioner dies. Firms have continuity. Sole practices do not.
      Sole practitioners have tended to be heroes in popular culture. In television and film, we have Perry Mason, as well as the iconic Atticus Finch of "To Kill A Mockingbird" fame. Lawyers cannot be cut from finer cloth. Sole practitioners dominate the genre of legal novels as well, with the best known being Paul Biegler of "Anatomy of a Murder," a man who penetrates into the heart of our system of law and the true nature of lawyering.
      In legal novels at least, the contrast is often between corrupt large firms, the site of skullduggery, and the sole practitioner, whose loyalty is to the client and to justice, not to profits. It is only mildly ironic that in certain political circles the term "personal injury lawyer" has become a slur. No one in these same circles would champion corporate lawyers. If we believe the messages of popular culture, beating hearts are found not in big firms but in sole practitioners.
      Heroes to the public, sole practitioners struggle for respect within the profession itself. The large law firms that have become the dominant force in the profession dismiss sole practitioners as failures who could not meet their discriminating, if not narcissistic, standards. Success in the profession for these practitioners is defined by success in the firm. This, at least, is the message of legal novels and of films such as "The Verdict." Paul Newman's alcoholic, broken-down lawyer perhaps too sharply emphasizes the failings of sole practitioners, since he has fallen so far from grace, but his big firm counterpart, the James Mason character, accurately represents his team and what the legal establishment thinks of sole practitioners. He represents those who have more money, (what they consider to be) better credentials, more staff, better offices, better clients and a greater cause: the preservation of the status quo. Theirs is the swagger of dominance.
      Judges have been known to advance this view as well. They mock sole practitioners with the phrase "very busy practice": a way of saying that they cannot control their work. In one instance, a federal judge was outrageously patronizing in writing that while the rules of practice should apply to all lawyers, he would cut a sole practitioner some slack because he was, after all, a sole practitioner. "While all attorneys practicing in the federal court are subject to its rules," we read, "it is not realistic to hold all to the same standards. For example, a failure to cite contrary authority may be excusable neglect in the case of an inexperienced sole practitioner but amount to serious misconduct if perpetrated by a lawyer from a large, well-equipped law firm engaged in a substantial matter." Nonsense.
      Though numbers have not changed, the technology revolution has transformed the world of sole practice. Sole practitioners are still limited to being in one place at one time, but the revolution in information technology has made the sole practitioner the equal of any firm, regardless of size. With all of the available forms and practice material, sole practitioners can become vastly more productive and sophisticated. Big firms once had an advantage because they could send a platoon of associates to a well-stocked library to research. Now the sole practitioner is himself a platoon and his online research a vast, all-inclusive library. Today, the sole practitioner with a good suit, a sturdy prose style and online research can go anywhere and do anything.
      Why, then, the second-class status of sole practitioners? Why, while I've always thought I was closer to the action of lawyering by virtue of my sole practitioner status, have the big firmers thought that I was performing in a sideshow? Armed with my good suit, sturdy prose style and online research, I can find no explanation.
      There is, I think, a certain irony in all of this. In England, for example, barristers are the most esteemed members of the legal profession, outpacing their solicitor counterparts in both prestige and fees. They are esteemed and considered the purer version of the advocate precisely because of their autonomy. Solicitors can form firms together, barristers cannot. Their relationship is to the law and their obligation is to advocacy, not to partners in a firm.
      Sole practitioners in our system come closest to the barristers in their relationship to the law and in their obligations, yet rather than being esteemed, they are often derided from within the profession. Luckily, though, the public gets what the profession does not.
     
      William Domnarski is a sole practitioner in Los Angeles who works exclusively in federal court. He has written two books on the federal court system and its judges.