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April 14, 2004

Carolyn Won’t Like This

Filed under: pre-06-2006 — David Giacalone @ 1:34 pm

Not only have New York lawyers been doing less pro bono and complaining about efforts to get them to do more, but they’ve been stealing more money from clients, too.

 

jailbird neg  As if that’s not dispiriting enough for NY bar members like myself (ret.) and Carolyn Elefant, Carolyn will not be at all happy about the explanation of Timothy J. O’Sullivan, the executive director of the State’s Lawyers’ Fund for Client Protection, for the disproportionate amount of money stolen from client real estate, trust and estate funds by lawyers practicing within NY’s Second Department (Nassau and Suffolk Counties).  According to John Caher’s New York Lawyer/NYLJ article (04-13-04) 


Mr. O’Sullivan attributed the imbalance to the real estate escrow problem, the size of the Second Department and the fact that it has many solo practitioners, who are more likely to steal. Agency records show that most thefts are carried out by middle-aged male attorneys working alone. Alcohol or drug abuse is often at the root of the misconduct, according to the fund.


In her MyShingle.com role as defender-in-chief of solo and small-firm lawyers, Carolyn has often complained about the bad rap solos get — and about discrimination in the discipline system against small-firm lawyers.  (See, for example her Not-So-Secret-Secret posting, also published here).  So, she will surely respond to Mr. O’Sullivan.


   let’s make this one to Cash. . check write 


I’m afraid, however, that she’ll also dislike my take on this problem:  While many of the best and most honest lawyers I have known have been in solo and tiny firms (and I spent almost a decade as a solo), most of the least competent and least trustworthy lawyers I’ve run across have been in solo and duo firms.  And, yes, I believe there is an explanation for this phenomenon.  Solos and duos are




  1. more likely to have sloppy book-keeping than larger firms


  2. far less likely to have anyone monitoring them within their firm — increasing the temptation to alleviate personal financial problems by “borrowing” from clients; and


  3. often working on their own because they’ve been asked to leave larger firms or saw they had no future at such firms

Of course, I believe that most small-firmers are just as competent and honest as other lawyers.  But, in a State with 197,000 bar members (ain’t that scary!), it only takes a small discrepancy in overall professionalism, and in the opportunity to engage in misappropriation,  to result in bigger numbers in the tally sheet of offenders.  [Soon, I hope to write more on whether there is actual discrimination in the lawyer discipline system against small fry.]   Each lawyer needs to be judged on his or her own personal integrity and record, but that doesn’t mean that trends don’t exist and can’t be discussed in public.



  • Update (-4-16-04): Carolyn Elefant has posted thoughtfully in reply to Mr. O’Sullivan’s remarks at MyShingle.

12 Comments

  1. David: Thanks for the heads up here. I will post to my site later this evening but in the meantime, here are some quick comments. There are two matters that irk me about reports about solos being most likely to steal. First, these reports ignore misconduct of Enron lawyers who kept quiet while their clients engaged in unsavory deals to inflate stock value, thus triggering legislation like Sarbanes Oxley and related SEC regulations. Yet in spite of the fact that these problems of attorney dishonesty and oversight were pervasive enough to launch legislation, no one says that biglaw attorneys are dishonest or more inclined to steal. Second – and the larger problem in my view, is that all of the bar’s criticisms of solo attorneys are really counter-productive. When you portray the solo as a dishevelled, disorganized middle-aged male in a crumpled suit, barely paying the bills and siphoning money from little old ladies, it doesn’t do much to attract qualified lawyers to the solo and small firm lifestyle. Law students at the US News Top Schools (for what that’s worth) don’t even have solo or small firm practice on their radar screen either immediately – or as a future option – because the bar gives such a poor impression of what solo practice is like. Most dissatisfied law firm associates either leave the law entirely or go to government or public interest positions; few contemplate solo practice because they’ve been indoctrinated at law school, their law firms and the bar to look down on solo and small firm lawyers. And when the solo/small firm bar can’t attract some of the better attorneys, there’s no hope of improvement. As I said, I will be posting at my site later.

    Comment by Carolyn Elefant — April 14, 2004 @ 4:01 pm

  2. David: Thanks for the heads up here. I will post to my site later this evening but in the meantime, here are some quick comments. There are two matters that irk me about reports about solos being most likely to steal. First, these reports ignore misconduct of Enron lawyers who kept quiet while their clients engaged in unsavory deals to inflate stock value, thus triggering legislation like Sarbanes Oxley and related SEC regulations. Yet in spite of the fact that these problems of attorney dishonesty and oversight were pervasive enough to launch legislation, no one says that biglaw attorneys are dishonest or more inclined to steal. Second – and the larger problem in my view, is that all of the bar’s criticisms of solo attorneys are really counter-productive. When you portray the solo as a dishevelled, disorganized middle-aged male in a crumpled suit, barely paying the bills and siphoning money from little old ladies, it doesn’t do much to attract qualified lawyers to the solo and small firm lifestyle. Law students at the US News Top Schools (for what that’s worth) don’t even have solo or small firm practice on their radar screen either immediately – or as a future option – because the bar gives such a poor impression of what solo practice is like. Most dissatisfied law firm associates either leave the law entirely or go to government or public interest positions; few contemplate solo practice because they’ve been indoctrinated at law school, their law firms and the bar to look down on solo and small firm lawyers. And when the solo/small firm bar can’t attract some of the better attorneys, there’s no hope of improvement. As I said, I will be posting at my site later.

    Comment by Carolyn Elefant — April 14, 2004 @ 4:01 pm

  3. You’re always so much more reasonable over at this weblog!  I’ll look forward to your fuller take on the issues. 
    Just one thought for now:  The American public does not appear to think that sole practitioners are more likely to engage in theft than the legal elite at BIGLaw firms.  If they thought about it at all, though, they might think the small frys are more likely to steal from their own clients — as opposed to white shoe lawyers being more likely to help rich guys steal from plain folk or other rich guys.

    And one more thought:  If law students haven’t considered small-firm practice, it is their own, small-minded, weak-willed, snobbish, status-seeking fault.  There is far too much in print about the many facets of law practice, and the many varieties of small-firm life, for me to feel sorry for the purposely myopic or congenitally moronic.

    Comment by David Giacalone — April 14, 2004 @ 5:12 pm

  4. You’re always so much more reasonable over at this weblog!  I’ll look forward to your fuller take on the issues. 
    Just one thought for now:  The American public does not appear to think that sole practitioners are more likely to engage in theft than the legal elite at BIGLaw firms.  If they thought about it at all, though, they might think the small frys are more likely to steal from their own clients — as opposed to white shoe lawyers being more likely to help rich guys steal from plain folk or other rich guys.

    And one more thought:  If law students haven’t considered small-firm practice, it is their own, small-minded, weak-willed, snobbish, status-seeking fault.  There is far too much in print about the many facets of law practice, and the many varieties of small-firm life, for me to feel sorry for the purposely myopic or congenitally moronic.

    Comment by David Giacalone — April 14, 2004 @ 5:12 pm

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