GPSolo Magazine - July/August 2005
From Public Service to Private Practice
Government lawyers, whether they prosecute criminal cases, advise regulatory bodies, or evaluate and negotiate government contracts with outside suppliers, leave government service at all stages in their careers to enter the private practice of law. Even if they practice exclusively in the area of expertise they developed during their time in government service, each of them faces new and often unexpected surprises upon entering private practice. This article outlines the difficulties we have witnessed when government lawyers attempt to adjust to their new world. This article assumes that the government lawyer is joining an established firm, although we address some of the problems of the government lawyer’s starting a solo practice in the sidebar on page 34.
One difficulty identified by almost all former government lawyers is the transition to the economics of private practice. In almost every case, the government lawyer will now (and suddenly) be billing on an hourly basis. The requirement to keep detailed and accurate time records is one of the first—and often the most psychologically difficult—issue facing the former government lawyer.
Although accuracy is the most important part of effective timekeeping, characterizing the time is very important as well and becomes more complex as the diversity of the firm’s clients increases. An institutional client may require that time be described according to a set of codes that can be lengthy but still maddeningly incomplete. An individual who has never hired a lawyer before may require more explanation about how and why the time is spent. Timekeeping under these circumstances is an art, not a science, and both the firm and the former government lawyer need to be patient and persistent as the lawyer moves along the learning curve of effective billing.
Further, former government lawyers are often startled to learn that billable hours do not necessarily equate with hours worked. The firm may write off hours worked as unbillable or excessive. Unhappily, this often brings more pressure to bear on the former government lawyer; virtually all private law firms have a required billable minimum, and hours reduced means more hours to make up. Government lawyers often put in just as many hours as their counterparts in private practice, but the realities of billing pressures are a common source of dissatisfaction.
Besides difficulties in recording time, many former government lawyers express surprise at the restrictions that economics often imposes on decision making in private practice. Although governmental resources are not unlimited, most government lawyers are at least able to get their cases investigated before making decisions to proceed with a particular matter. By contrast, even when facing serious governmental charges, a private client may lack the economic resources to investigate or employ an expert that the lawyer deems advisable.
Although economic issues are perhaps the most obvious difference between public and private practice, more subtle differences present even harder challenges for the former government lawyer. These challenges involve the psychological and emotional differences between practice as a government lawyer and private practice and include:
- The client’s emotional state. In government practice, the government goes on, whether the lawyer is successful or not. In private practice, the very survival of the client’s business or the client’s liberty may be at stake. This is not to say that government lawyers do not feel pressure and emotional intensity; they certainly do. But the sheer level of that intensity is felt much more directly in private practice.
- The client, not the lawyer, controls the case. Contrary to what many people think about government bureaucracies, most government lawyers make decisions about the matters they are handling with the input of few additional persons. The process is not complicated by large numbers of persons needing to have input, and there are rarely significant emotional stakes in a decision. By contrast, a lawyer in private practice may represent a partnership of diverse parties, all of whom want a say in the management of the case. Or the client may be a single individual who rightly believes that she is fighting for her life. Instead of controlling the case and basing his or her decision on the facts and the law, the lawyer in private practice often must allow the client to make the decision. This involves more than client relations; the lawyer must foster the client’s trust so that the lawyer can try to do what should be done for the client—not an easy task if the client does not agree with the lawyer’s assessment.
- Determining the tone of the case. As a corollary to client control, the client may wish—or even instruct—the lawyer to take a hostile or aggressive stance with the opposing side. Such a stance may not be in the best interest of the client, and the former government lawyer facing this problem for the first time must address and resolve the issue immediately with the client. (In such cases, the law firm should be involved in determining how best to resolve the problem with the client.) This problem is virtually unknown in public service, as government lawyers typically control all aspects of the case.
- Playing a subordinate role. In private practice, the client may insist that, as the biggest client of the senior partner, he or she is entitled to have the senior partner as lead counsel. Even young government lawyers are accustomed to greater independence and often have unexpected authority and experience given their comparatively few years of practice. Often they are unused to carrying the bags for another lawyer selected simply because he or she has more gray hair.
- The pace of private practice is far more frenetic. Compared to practice in most government agencies, private practice often seems faster paced. Deadlines and demands seem to fly from all sides at once. Many former government lawyers report that adapting to the change of pace was one of the hardest transitions to make.
- In private practice, you’re often reacting instead of acting. Government lawyers who practiced criminal or regulatory law in public service and continue to do so in private practice can find themselves reacting to governmental demands. The government might make an offer that expires in five days—even though the government spent two years developing the case.
Obviously, none of what we have discussed in this article is an insuperable hurdle for the government lawyer who wants to transition from public service to private practice. However, both the lawyer and his or her new law firm must understand that this transition will not be seamless. The former government lawyer faces a new set of skills and a new set of emotional challenges that can only be mastered with practice. Being aware of the differences between public service and private practice, and recognizing that it takes time to make the transition, will assist both the law firm and the former government lawyer in making that transition successful.
The adjustments the former government lawyer has to make in joining an established law firm are amplified if the lawyer decides to enter private practice as a sole practitioner. In addition to the changes in legal culture between the government office and private practice, the sole practitioner must decide what kind of firm resources are needed—from office space and furniture, to books and online services, to personnel (secretaries, law clerks, receptionists, and whether to use temps or permanent employees), to the myriad governmental regulations affecting every small business (business licenses, tax withholding for employees, working conditions, etc.). All of these issues take time to resolve and cost money. And unlike the government lawyer who joins an established law firm, the new solo attorney will often have no one else to look after these important details.
For this reason, any government lawyer considering a solo practice needs to be focused and organized. A budget for the first six to 12 months is imperative; it’s unlikely that clients will rush in, and even if they do, payment may not be immediately forthcoming. The new sole practitioner can minimize costs by sharing space with other lawyers; that way, the rent usually includes access to the firm receptionist, library, and photocopier. (While shared space can be an effective cost saver, lawyers in shared office spaces must ensure that their clients understand that other lawyers in the office are not their partners and must take appropriate steps to ensure the confidentiality of client communications.) Scheduling temps may be a partial alternative to having a real payroll.
At the very least, the government lawyer considering a solo practice should join the ABA and state bar sections on solo practice and office management before leaving public service. The bar associations offer a great deal of information, guidance, and wisdom about opening a solo law firm, and with their help the government lawyer can avoid reinventing the wheel and repeating the same mistakes that so many sole practitioners make when they first start up.
Erecting An Ethical Screen
Occasionally, a former government lawyer joining a private firm will discover that the firm is handling a matter involving the same governmental office that the lawyer just left. This usually does not pose a problem for former government lawyers who either were not directly involved with the matter or were not in senior management positions. Any such substantial involvement, however, creates a conflict of interest, which the law firm and former government lawyer must address directly.
Under such circumstances, ABA Model Rule 1.11(a) permits a screening process whereby the law firm may continue with such representation. The former government lawyer, absent written consent of the governmental office he or she just left, cannot represent the client. However, the law firm is not vicariously disqualified from such representation if it takes two steps:
‑the former government lawyer is screened from any participation in the matter and is “apportioned no part of the fee therefrom;” and
‑written notice is promptly given to the appropriate government agency.
ABA Model Rule 1.11(a) does not apply in all jurisdictions. Check your local rules of professional conduct for any variations.
Mark E. Beck is a former assistant chief in the U.S. Attorney’s Office in Los Angeles, California. He is a shareholder in Beck, DeCorso, Daly, Kreindler & Harris, PC, in Los Angeles, where he represents businesses and individuals in white-collar criminal matters, regulatory matters, and complex civil litigation. He can be reached at firstname.lastname@example.org. Joseph M. Hartley teaches law at Concord Law School and lives in Santa Monica, California. He can be reached at email@example.com.