Solo Contendere

A story has been making its rounds of the legal blawgosphere lately: the story of Alan Gura and his attorney’s fees.

A little background: Alan Gura is part of a small Washington D.C. law firm. He and a number of other small firm and public interest lawyers took the landmark District of Columbia v. Heller to the Supreme Court and overturned D.C.’s handgun ban. He fought for his client’s position for six years, and won a stunning victory. Then the district court judge slashed his attorney fee award, citing in part the fact that he worked at a small firm and that “[t]he market generally accepts higher rates from attorneys at firms with more than 100 lawyers than from those at smaller firms.” The court cited to numerous cases where judges have awarded small firm attorneys less than attorneys employed at larger firms.

The legal natives are restless. Carolyn Elefant at My Shingle called the decision a “Solo-bomination.” The Lawyerist’s Sam Glover added “So there you go, solos and small-firm lawyers: you are worth less.” Why, they argue, should a small firm practitioner make less than anyone else for the same (or better) work?

I’m going to go out on a limb and agree with the judge.

My reasons are pretty simple. The judge was not saying small-firm practitioners are worth less, he was simply saying we cost less. And why not? I don’t know why we aren’t standing up and pointing to that decision and saying “Damn right we do! We can get at least as good a result as those large firms, and can do it for a fraction of the cost!”

Don’t we use that when we are marketing? Not that we (all) try to be known as the cut-rate attorneys, but isn’t one of the selling points of a smaller law firm the fact that we keep overhead low and pass the savings on to you, the client? You, the client, aren’t paying for our glitzy advertising, imported cedar-and-gold inlaid walls, or the stunning view from our conference room. The money you give to us goes to pay for the lawyer who is poring over law books or Westlaw (can one “pore over Westlaw”?) trying to win your case.

More than that, though, it’s just not correct to compare rates simply based on work accomplished. Whether it’s fair or not, it’s certainly a fact that large-firm practitioners must charge more, if for no other reason than to pay for the army of staff, six floors of a downtown skyscraper, and the ruby-encrusted coasters. Awarding less in attorney’s fees to small-firm practitioners is not punishing them for keeping overhead low, any more than prevailing rates in rural Mississippi punish lawyers who practice there because they do not make the prevailing rate in New York City.

Cost-of-practice, like cost-of-living, matters. We should be proud that our rates are low; we should point to it whenever we can, not to say that we come cheap, but to show how much better value you get for your dollar at a smaller firm. And when people ask whether we can get as good a result as the larger firms, we can point to Alan Gura and Heller.