Fluxing Straight Out of Law School

I am seeing it increasingly commonly – newly called lawyers who set up their own shingle without working for a law firm as an associate. In part, it’s due to the changes in the market which have left a scarcity of opportunities for young lawyers, or opportunities that are otherwise undesirable. But it’s also becoming a preferred option for a generation which values creativity, personal relationships, empowerment, self-determination and entrepreneurship.

Luz E. Herrera, who launched her own solo practice in 2002, described this phenomenon in the Denver University Law Review,

The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Large law firms are laying-off lawyers, bringing in smaller first year associate classes, hiring more contract and experienced lateral attorneys. Government entities and public interest organizations have suffered furloughs, and hiring freezes, and are relying more on volunteers than on new employees to get the work done. To complicate matters, the baby boomer generation of lawyers is retiring later and contributing to a lack of new job opportunities. As a result, a large number of recent law graduates are unemployed, under-employed, or are working in settings that do not require a bar license.

…However, today’s solo practitioners are more sophisticated and diverse than the lawyers [of the past]. The solo bar includes a large percentage of women and experienced lawyers who choose solo practice because it offers greater flexibility and a better lifestyle than working in larger firms.

Business Insider has an article this week on Branigan Robertson, an example of a more sophisticated sole practitioner who founded his own practice in 2012 in Irvine, California soon after graduation. Robertson had firm experience working as a law clerk and summer associate in law firms, but he was otherwise newly minted from Chapman University School of Law.

Robertson identified a practice area early on and ensured clients in this area were more flexible around their choice of lawyers, typically what we are starting to refer to as public-facing law. He also adopted exclusively an alternative fee arrangement model, taking on contingency fee files only. Of course Robertson also recommends planning in advance, building a website immediately, joining legal organizations and list-serves, and developing a robust referral network.

The rest of Robertson’s advice is largely attitudinal. Even though many think that it’s insane, Robertson advises persistence,

Many attorneys are pessimists by nature and love to tell people what they can’t do. They never tried it so they don’t know. If you believe them, there is zero chance you’ll succeed.

Most importantly, clients do not care about any of the things that lawyers seem to care about like grades, class ranking, law review, or even how old you are. Clients care about competence and value.

The employment situation has never been nearly as bad in Canada as in the U.S., where some figures cite nearly half of law school graduates as unable to secure a position as a lawyer. The uncertainty of the future of the profession that Herrera notes is still the same though, and she points out that in the U.S. that the historic response from lawyers to such trends has been establishing solo and small firms. Yet, we do not see the type of collaboration between the lawyer organizations, law schools and individual practitioners in Canada that we see in the U.S.

Herrera looks to The Law School Consortium Project (LSCP), founded in 1997 by City University of New York School of Law, University of Maryland Law School, Northeastern University School of Law, and St. Mary’s University School of Law to create support networks for small and solo lawyers and expanded to focus on “low-bono” and access to justice services. Before launching the LSCP, Maryland developed an independent non-profit with its alumni called Civil Justice, Inc. to offer mentorship and promote access to justice, which turned into the Solo Practice Incubator for Justice in January 2011.

The City University of New York (CUNY) School of Law connects over 300 solo and small practice alumni for mentorship and group discounts. The school launched an incubator in 2007, training 12 lawyers over 18 months in billing, record keeping and taxes, as well as substantive law needed in their practice. A modest fee of $500/month is charged to help cover the costs. The University of Missouri Kansas City (UMKC) has adopted the CUNY model, with support from the Missouri Bar Association and the Kansas City Metropolitan Bar Association, training 150 lawyers between 2004-2010 in their Solo and Small Firm Institute, and launching an incubator in 2010.

Florida International University College of Law (FIU) provides a postgraduate LawBridge program, which mixes the approach between a medical school residency and a business school entrepreneurial incubator. FIU introduces lawyers to other professionals to assist them with technology, marketing and finances. Technology, Herrera posits by adopting from Susskind, can facilitate the entry of new players into the legal market by providing more affordable alternatives.

Other schools like California Western School of Law (California Western) and Thomas Jefferson School of Law (TJSL) have also followed suit and launched their own incubators. The Hannover Report on Incubators further details efforts by American law schools to advance these goals.

How are new lawyers like Robertson supposed to develop practical competence in Canada without the years of experience? I say it repeatedly, but sole and small practice often provides a better and more thorough exposure to various aspects of practice than working in a large firm focusing on research memos. The new Law Practice Program pilot may provide some assistance for those in Ontario who know at the outset that this is their course, but there are many others who only decide to launch their practice after a dismal year or two (or ten) as an associate.

Irwin Law released a Young Advocates series last summer, with titles in interviewing, discoveries, writing, mediation, and the courtroom. I’ve already read half of the series, and I find they reflect the majority of questions and concerns that young lawyers frequently pose to me. They include exercises and scenarios which realistically depict situations which emerge in litigation. The series are written by John Hollander, who teaches an advanced advocacy course at the University of Ottawa.

The UofO course must be great for students in that school who have already made this decision, but what else is there for young associates? The Advocates’ Society has a Civil Litigation Skills Certificate which I’ve found useful, the Canadian Bar Association is offering Skilled Lawyer Series with  advocacy and transaction streams, as well as a series on practice management. I repeatedly hear from young practitioners that practically-focused professional development is more valuable to them than updates in substantive law.

There is another factor which provides hope for the next generation of sole practitioners, and it’s largely cultural. Although most law firms these days cringe over how all of their millennial associates think they’re “special,” Herrera believes this confidence and optimism is exactly what’s needed to meet the access to justice problem. Their needs for work flexibility and teamwork, technological competency, strong communication skills and sense of global responsibility, will help create the new models of legal service delivery and transformative innovation.

The definition of millennials is highly debated, but is usually pegged at those born between the 1980s to early 2000s. I’ll confess that I fall outside that gap, but a self-administered Pew Research Centre quiz suggests that culturally I am far more millennial than I am Generation X (the only factor missing is my parents are still together). I’ll also confess that I am not a digital native, but I am an immigrant to the digital world who has integrated myself quite well. What this means is that the new generation of innovating lawyers does not necessarily have to be young or raised with technology, they just have to be young at heart and open to challenge and change.

Herrera refers to this as Generation Flux, adopting the term from Robert Safian in Fast Company in describing the successful traits needed in the new economy,

This is less a demographic designation than a psychographic one: What defines GenFlux is a mind-set that embraces instability, that tolerates–and even enjoys–recalibrating careers, business models, and assumptions. Not everyone will join Generation Flux, but to be successful, businesses and individuals will have to work at it. This is no simple task. The vast bulk of our institutions–educational, corporate, political–are not built for flux. Few traditional career tactics train us for an era where the most important skill is the ability to acquire new skills.

The shift in mindset is similar in the shift from the waterfall model of software development being replaced by agile development, which requires self-organizing cross-functional teams. This can be facilitated, as described by the American initiatives above, or it can happen organically. Either way, the lawyer starting a law firm straight out of law school will simply have to be ready to flux.