Volume 18, Number 6
On Your Own
Solo and Small Firm Practices
By Knut S. Johnson
For an established lawyer, leaving a safe government or large firm job to start a solo or small firm practice dedicated to criminal defense can be frightening. The thought of losing benefits, regular salary, and perceived prestige can often derail all but the bravest lawyer-entrepreneurs. Solos and small firms, however, remain the backbone of the criminal defense bar, comprising a large percentage of criminal defenders-in some locales, the only defenders.
These practices run from "we'll defend anything" to specialty firms that handle only misdemeanors, felonies, state cases, federal cases, traffic, narcotics, white collar, juvenile, trials, appeals, sentencing issues, habeas and other collateral issues, or parole and probation issues. Many solo and small firms depend on appointed work; others handle only retained work. Some handle a mixture. Choosing the type of criminal defense practice often depends on where the lawyer's practice is located, the availability of panel work, and the lawyer's experience.
The first step to starting a solo or small firm practice is identifying the type of criminal defense practice that best fits the individual lawyer and the city or town where the practice is located, assuming the practitioner already has a location in mind. Understanding the nature of the practice in a particular location is important. In some geographic areas, opportunities for appointed work have a residency requirement, while others, particularly for appellate cases, may not.
Once the lawyer understands the type of practice that he or she hopes to begin, the next step is to choose an office location. For some lawyers, going solo will allow them to work out of their homes. It's the best alternative for anyone who wants to solve the solo and small firm lawyer's primary law office management issue: keeping overhead low. There are major drawbacks, though, including interruptions from roommates, spouses, or children; disclosing the location of your home; having a "less professional" appearance; and greater distance to the courthouse and jails. A home office usually works best for those who focus on appellate work.
For most solos and small firms, renting an office is the better option. Next, a practitioner must balance location with cost, because the closer you get to the courthouse, the more expensive the space. For a busy practitioner, though, being able to walk from courthouse to office throughout the day is well worth the added expense. To reduce overhead-job one for solos and small firms-look to share a law suite. You may also be able to rent space from large civil firms. In addition, busy law firms may discount rent to lawyers who will share space and agree to provide a minimum number of hours a month in legal work. But be aware that this option may also create a conflict of interest, particularly if a firm that is representing a defendant or corporation refers witnesses to the solo lawyer.
Once you've found the office space, you'll need to address equipment issues. At a minimum, a solo or small firm lawyer needs a computer, a phone line, and access to the Internet. The number of phone lines, the size of the computer, and the type of computer-assisted legal research depends on the practice and the location. The same holds true for other options such as scanners, fax machines (or computer fax programs), desks, chairs, and e-mail. A solo practitioner or small firm lawyer may also need insurance-malpractice, disability, health, and office-and payroll for full- or part-time employees.
There are other nuts-and-bolts concerns. For instance, can lawyers who represent codefendants ethically share a fax machine? (In California, where I practice, the answer is likely to be no.) Consider the ethics if you represent a cooperating defendant and the person in the office next to yours represents a noncooperating defendant. What problems arise if you accept cases from a lawyer with whom you have a joint defense agreement and who shares your office space? There are other ethical concerns that are special to solos and small firm lawyers. For example, can you include an arbitration clause in a fee agreement? What if a court-appointed client wants to hire you? What if a referring attorney asks for a fee for the referral?
Many small firms and solo practitioners lack the resources to answer such questions. They also lack the resources for training or meaningful participation in bar association meetings that require travel, including ABA meetings in distant cities. As a result, those practitioners and small firms are more isolated than their large firm and institutional colleagues.
The Criminal Justice Section's Solo and Small Firm Committee hopes to address many of these issues this year in a manner that is accessible to the typical solo and small firm criminal defense lawyer. The committee plans to create and maintain a website to serve as a forum for its members, who will be able to post legal and practical questions and invite input from other members. The website will also maintain a list of useful links. The site will also provide a way for members of the committee to participate in committee issues and "virtually" attend Criminal Justice Section meetings.
Knut S. Johnson is a solo practitioner in San Diego, California, and chair of the Criminal Justice Section's Ad Hoc Committee on Solo and Small Firm Practice.
This article is an abridged and edited version of one that originally appeared on page 36 of Criminal Justice, Winter 2001 (15:4).