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Vol. 35, No. 3

Solo and small-firm lawyers: A renewed priority for bar associations

James R. Silkenat and Harvey B. Rubenstein are co-founders of the ABA Solo and Small Firm Leadership Coalition, established in 2010. Silkenat is a representative for the New York State Bar Association in the ABA House of Delegates. He previously served as ABA state delegate from New York and as a member of the ABA Board of Governors. He is also a past chair of the ABA Section Officers Conference and the ABA Section of International Law. He is a recipient of the New York City Bar’s Diversity Champion Award. Rubenstein is a state delegate for the state of Delaware in the ABA House of Delegates and a past president of both the Delaware State Bar Association (1991-92) and the Delaware Bar Foundation (2001-09). In 1995, he was named ABA Sole Practitioner of the Year.

There are numerous images of the American lawyer in our country’s popular imagination. Most of these images are created by television and the movies, yet still have some direct connection to the life of the law as lawyers currently live it. Among others, there is the stalwart prosecutor, the courageous defense counsel, the Wall Street dealmaker, the bet-the-company litigator, and the family counselor.

All of these images have some degree of resonance with the everyday citizen, but the one mental image that predominates for most Americans is that of the solo or small-firm lawyer working for real people on real matters (wills, sales of property, traffic cases, local litigation) that have an impact on almost all of us on a continuing, or at least occasional, basis.

Sometimes these solo and small-firm practitioners are ones we have met at church or through our children’s schools. Sometimes they are a fraternity brother or sorority sister from college. Frequently, they represented our parents and we were accidentally included in the package along the way, as we established careers and families of our own.

This “central casting” image of solo and small-firm lawyers also predominated in the early life of our communities and most bar organizations, whether at the local, state, or national levels. In times past, solo and small-firm lawyers were the solid citizens who helped create the bar organizations, chaired the committees, raised the necessary funds, worked with the courts, and made bar organizations an important substantive part of our justice system.

Somewhere along the way, however, many bar associations began to lose this elemental, “first cause” relationship with solo and small-firm lawyers. This group of practitioners was no longer seen to be the core element of the organization, but was frequently thought to be an undifferentiated collection of individual lawyers, with no overriding set of common interests and no special needs or activities of their own.

The failure of bar organizations to continue their connections with solo and small-firm lawyers was often matched by misperceptions on the part of solo and small-firm lawyers themselves. They thought they were being ignored, even if sometimes they were not, and responded accordingly, by dropping out of, or never joining, bar organizations in record numbers.

The numbers concerning solo and small-firm lawyers tell a very powerful story. The most telling statistic is that, of the total number of practicing lawyers in the United States, more than 48 percent are in solo practice. However, according to GP Solo Magazine, only about 12 percent of the 386,100 ABA members are solo and small-firm lawyers. Even more disturbing, of the more than 560,500 solo and small-firm lawyers currently practicing in the United States, only some 47,000 (or 8 percent) are now members of the ABA. Precise statistics on these issues may differ, but the trends are certainly troubling ones.

At the state bar level, the situation is a little different, since many states have a unified bar system, where bar association membership is mandatory. However, in states where membership in the state bar is voluntary, solo and small-firm lawyer membership and participation is also down considerably and needs to be addressed aggressively and soon.

The question, therefore, for voluntary bar associations, whether at the state, local, or national levels, is obvious: How do they become directly relevant again to this important and growing portion of the legal profession? From the solo and small-firm lawyer’s perspective, the question is equally stark: What programs, services, or initiatives from state and local bars or the ABA would entice them to give up their scarce financial and time resources in order to become a member and actively participate?

The answers to these questions will involve a change in thinking by both the bar organizations and by the solo and small-firm lawyers. For bar associations, the change will necessarily involve the dedication of additional resources to solo and small-firm issues. But, more important, it will involve a recognition, at more than a surface level, that solo and small-firm lawyers have distinct needs and interests, different from those of their large-firm and in-house colleagues, and that the costs of bar association participation will need to be adjusted in order for individual lawyers to recognize the value of membership and participation.

For all bar leaders, the questions do not stop there: What organizational and governance structure, whether for state and local bars or for the ABA, is needed in order to gain and retain solo and small-firm membership? What special efforts can bar organizations take to develop and disseminate technologies, as well as programs and projects, that are specifically helpful to solo and small-firm lawyers? How can special dues arrangements for solo practitioners (such as those begun in the ABA under Presidents Carolyn B. Lamm and Stephen N. Zack) be expanded or refreshed to be even more productive? Are there efforts at the state and local bar level, like the ABA Leadership Coalition for Solo and Small Firm Lawyers at the national level, that can help advance a solo- and small-firm-friendly agenda? How can bar associations at every level work together in their effort to accomplish these goals?

For solo and small-firm lawyers, the change involves more than self-interest. It involves an acknowledgment that, as members of a noble profession, they must continue to play an important role in strengthening the justice system of our country.

It is not too much to hope that imaginative and committed lawyers will be able to build the bridges necessary to ensure that solo and small-firm lawyers are a key element of bar association life at every level in the future. Every legal institution, including our justice system, will benefit from that reconnection. And, as in the past, state and local bar leadership must remain an essential ingredient in that revival.