While the evidence is mostly anecdotal, solo lawyers and those who work with and teach them say the ethical minefield of running a solo firm can be more treacherous than it is at a small or large firm.
“I don’t know that this is borne out by statistics, but a lot of people think that solos are more likely to run into ethical problems,” said Judith M. Rush, Director of Mentor Externship at the University of St. Thomas School of Law and chair of the Minnesota Board of Lawyers Professional Responsibility. “The risks might just be different, but there’s still a lot to watch for.”
The level of risk for solos comes from a number of factors. A primary one is the lack of buffers in a small or solo firm: When it comes to everything from fee structuring to case management to conflicts of interest, keeping on the ethical straight and narrow tends to be much easier when there are other attorneys around to act as a second set of eyes.
“Solos do have to be extra careful,” said Mankato attorney Will Partridge, former chair of the Sixth Judicial District’s Ethics Committee. “A lot of potential mistakes that might get made in a larger firm get caught by various buffers before they get anyone in trouble. Without that buffer, a solo practitioner doesn’t have that kind of luxury.”
Fortunately, solo lawyers have access to a number of resources that can at least partially simulate the preventative effects of having other lawyers in the office. Rush suggests making regular contact with colleagues in similar practice areas, or subscribing to the Minnesota State Bar Association’s solo/small firm listserv as a way of getting a second opinion on ethical dilemmas.
“When solos get isolated and don’t stay connected with other colleagues, they’re more likely to run into problems,” she said. “There can be a loss of good judgment if you’re the only one making decisions.”
A lot of ethical lapses by solo attorneys come as a result of simply running out of time to do everything that needs doing during the day, a situation that lots of solos can relate to.
“You run out of hours in the day,” said Jason Kohlmeyer of Rosengren Kohlmeyer in Mankato. “Sometimes it comes down to a question of, ‘Do I want to thoroughly check these potential conflicts, or do I want to pay my rent this month?’ You become overwhelmed with having to get all your work done, and pretty soon little shortcuts start to look better and better.”
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Weighing ethical obligations against financial obligations can become especially risky for solos who deal with estates or other areas where they’re asked to handle trusts. Again, the lack of other attorneys in the office to encourage accountability can lead to situations where a cash-strapped lawyer might think it’s OK to borrow from trust accounts.
“I advise solo attorneys to live within their means and keep a cushion for lean times,” said Partridge, of the Farrish Johnson firm. “It won’t always be easy, but you have to maintain a strong firewall between your money and your clients’ money.”
On a more day-to-day level, solos can get into ethical trouble simply by not clearing their full plates in a timely manner. From his spot on the Sixth District Ethics Committee, Kohlmeyer said most of the complaints he hears regard solo attorneys, and a large number of complaints have to do with such simple matters as unreturned phone calls.
“If a client calls and calls and can’t get you to call back, he can’t complain to your boss,” he said. “Their first real recourse is an ethics complaint. Failure to communicate with clients can be a big problem.”
So can missed deadlines, although those technically tend to fall into the category of malpractice, according to Rush.
“If you’re not being diligent and following through on cases, not communicating with clients, that’s going to lead to trouble,” said Rush. “That’s less likely to happen in a large firm because there’s more structure to support and follow-up.”
Aside from keeping a solid cadre of colleagues to use as ethical sounding boards, Kohlmeyer recommends practice management software as a way to better keep on top of housecleaning issues that can build into ethical problems. Such services as Go Clio and Rocket Matter can help you keep on top of billing, appointments and potential conflicts.
“And don’t forget to read over the rules (of professional conduct) on a regular basis,” said Kohlmeyer. “I learn something every time I review them.”