March 31, 2021 Feature

Tips When Considering Solo Practice

©2021. Published in Landslide, Vol. 13, No. 4, March/April 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Philip H. Burrus IV worked with Motorola Inc. from 1997–2005, beginning as an electrical engineer and transitioning to the law department, where he served as a patent agent, patent attorney, and senior patent attorney of the energy systems division. In 2005, Philip founded the Burrus Intellectual Property Law Group. His practice is primarily patent prosecution, but he also assists clients with a wide range of transactional IP matters, including trademark and copyright prosecution, portfolio management, licensing, and opinion work.

So you’re tired of large firm life, eager to have more control of your practice (and life), and considering the possibility of life as a solo practitioner, are you? From someone who has spent the last 15 years as a solo practitioner, for me, it is absolutely the only way to go. I enjoy choosing my clients, my areas of practice, my work schedule, and my firm management procedures. If it were up to me, I would be perfectly content never being an employee ever again.

Without the personality and mindset of a true entrepreneur, success (and satisfaction in life) as a solo practitioner will be difficult to achieve.

Without the personality and mindset of a true entrepreneur, success (and satisfaction in life) as a solo practitioner will be difficult to achieve.

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However, despite the deep satisfaction I personally derive from solo practice, I will be the first to admit that it is not for everyone. I know of one attorney who left a large firm to start a solo shop, vowing never to return to a large practice. Thereafter, feeling isolated from colleagues, the firm rapidly hired several additional attorneys. It later merged with a large, multistate firm, thereby taking the attorney full circle. Finding another inner voice of dissatisfaction, the attorney launched another small firm, again vowing never to return to the mega-firm. Alas . . .

The goal of this article is to help you avoid such oscillations. If you do decide to make the jump to solo practice, I hope to provide you some tips so you can launch the ship more efficiently, in addition to avoiding some common pitfalls. If you read this and decide solo practice is not for you, I’ve still done my job. If you determine that solo practice is the right choice, I encourage you to come on in sooner rather than later—the water’s fine.

Make Sure You Are an Entrepreneur at Heart

With the vast number of books out there devoted to matching your personality to your occupation, it may sound a bit cliché, but it’s critically important: thriving as a solo practitioner takes a certain mindset. This point cannot be understated. Without the personality and mindset of a true entrepreneur, success (and satisfaction in life) as a solo practitioner will be difficult to achieve.

I know many attorneys who just want to practice law. They want to arrive at the office, grab a cup of coffee, open a file or say hello to a client, and then get directly to work. There is nothing wrong with this whatsoever. After all, that’s why you endured those long years in law school.

While there are many days in my practice where this is exactly what occurs, as a solo practitioner, one must wear many hats and must be comfortable handling a lot of different roles. When the printer crashes, it’s your job to fix it. When the network goes out, it’s your job again. When you need to upgrade servers, machines, software, or services, you are the buyer, information technology director, system installer, and staff trainer. When ransomware attacks your system, it’s up to you to figure out where to get virtual currency, what a Bitcoin wallet is, and how to get your files back. Wait, what’s that? You don’t want that last one to happen? Then as a solo practitioner, it’s your job to become your firm’s cybersecurity expert.

For me, life as a solo practitioner is great. I grew up playing competitive golf. I recall watching a tournament where a reporter asked Greg Norman what he liked most about golf. He said that the great thing about golf was that “it’s just me.” He was solely responsible for his success or failure. He was alone on a course to determine whether a tournament was won or lost. One needs a bit of this mindset to have success in solo practice. When problems arise, they’re yours, so you have to be ready to personally take responsibility and solve them. I find this challenging. However, if you do not, perhaps a larger firm will be a better fit.

Another reason I enjoy solo practice is that all the tasks associated with running a business provide a nice, momentary diversion from legal work. I’m a transactional attorney, with a large concentration of my practice being patent and trademark prosecution. I’m not sure about you, but there are only so many consecutive hours in a day that I can devote to, for example, patent prosecution before my efficacy starts to decline. Reporting correspondence, running invoices, balancing books, researching new software tools, and other tasks help to balance my workload throughout the day.

Like minds can disagree, however. Many attorneys I know would find such tasks tedious, mundane, and annoying. For those in the latter camp, success in solo practice may require hiring a large support staff to offload such tasks, thereby compromising the economic benefits of working independently. In sum, a mindset and personality compatible with working independently are necessary when it comes to success under your own shingle.

Make Sure Your Business/Practice Model Is Commercially Viable

Another tip for success is to ensure that your business or practice model is commercially viable. I’m a transactional attorney. I think litigation is a wonderful space in which to practice law. However, I don’t litigate cases. Why? Because I want my firm to be commercially successful.

I represent some reasonably large clients. Using patent practice as an example, many such clients are more than content to use a solo practitioner for transactional work. As long as the work product, service, and client interface are exceptional, many clients do not care where I am, whether I’m in a suit or pajamas, or at what time of day I’m working. With a computer and an internet connection, I can work diligently for my clients almost anywhere.

If such a client were to be sued for patent infringement, however, it is highly unlikely that such a large firm would come to a solo practitioner to handle the case. Since damages in patent cases can be so high, in-house counsel will want a large, well-known firm for representation. If an adverse verdict occurs, at least the in-house attorney had “the biggest and best” firm representing the business. Plus, patent litigation requires significant manpower and resources, which large firms are much better suited than mine to provide.

While I have many friends who have small or solo firms concentrating on patent litigation, they tend to serve smaller clients. Again, there is nothing wrong with this. The point, however, is that your business model must be commercially viable with respect to the practice areas upon which you want to focus, and with respect to the types of clients you wish to represent. I love copyright law. I would also love to be an appellate attorney (perhaps one day). Nonetheless, clients hire—and pay—me to write patent applications because that business model serves a need. Before hanging a shingle, make sure your business model fills an unserved, and commercially viable, niche.

Take Advantage of Available Resources

Think you want to start a practice but don’t know where to begin? There are so many resources available to help you. It’s just a matter of finding them to make your firm launch simpler.

The classic resource is the ABA bestselling book, How to Start and Build a Law Practice, by Jay G. Foonberg. Now in its sixth edition, I found this book invaluable when starting my practice. Foonberg does an exceptional job discussing everything from the confidence required to start a practice to business plans, selecting office space, configuring stationary and client announcements, finding clients, setting fees, office management, and even ethical considerations for solo practice. Even if you’re just considering solo practice, this book is well worth reading.

Next, anyone considering solo practice should seek out resources from their local bar. I’m a member of the State Bar of Georgia, and it offers a bounty of resources for solo practitioners and small firms. These resources include a library of materials specifically focused on small firms, a law practice management staff dedicated to assisting attorneys starting—or running—small firms, and even individualized or group training sessions that assist attorneys running small firms. The State Bar of Georgia additionally offers an annual “Solo and Small Firm Institute” that runs multiple days and includes continuing legal education presentations covering everything from cybersecurity to mental health and wellness to ethics and marketing. Your local bar likely offers similar resources, and I would encourage you to take advantage of such offerings.

Finally, seek out a successful solo practitioner and ask them for guidance. When I started my firm in 2005, a good friend had been a solo practitioner for many years. He kindly offered to show me the technology he used in his office, how he handled matters, and how he corresponded with clients. He even printed out a checklist for me suggesting local banks in the area with successful working relationships with small firms, professional liability insurance providers willing to work with those starting out in solo practice, and docketing and other software providers he found to be of assistance in running his firm. I found this advice invaluable. Many attorneys are glad to help if you ask. So ask!

Network!

One complaint I hear from some attorneys who start solo practices is that they feel isolated from colleagues. “I can’t just walk to the water cooler and talk to people,” is a complaint I frequently hear.

I don’t have this problem. Why? Because I make an effort to actively network. I make a concerted effort to meet and engage other attorneys, both those practicing in the intellectual property space and those practicing in other areas.

Illustrating by example, I frequently receive calls for legal representation outside my specialty. Some prospective clients miss the “intellectual” in “intellectual property” and call requesting help with real property issues. Others request help with tangential issues, such as forming corporations or litigating patents or trademarks, or with issues regarding consumer products and marketing.

For such matters, I keep a referral list. I built that referral list by reaching out to attorneys I knew—and many I did not—and asking them to lunch or drinks after work. I would tell them that I was a solo practitioner in the intellectual property space and thought it would be great to have a contact in their practice area. Not only did I meet a lot of attorneys this way, I found some that I really liked who were qualified to add to my referral list. Moreover, so many attorneys I contacted were wholly receptive to having lunch and discussing our respective practices. All it took was a bit of initiative and an invitation.

I also recommend getting involved with local organizations of attorneys, and especially your local state bar. When I started my practice, a certain portion of its success could be attributed to the fact that I was the State Bar of Georgia Intellectual Property Section Patent Committee chair. I then went on to serve various officer roles, including section chair. I currently serve on the executive committee of our local Inn of Court. Serving in such roles has allowed me to meet many people who have ultimately led to new clients, either directly or from referrals.

I also recommend developing a mastermind group. I am fortunate to have a circle of five or six attorneys with whom I exchange questions and from whom I obtain advice. We exchange questions, suggestions, and even humor from time to time. When I encounter a question for which I am unsure of the answer, I reach out to my mastermind group. As an example, I recently had a request to file a trademark application in a remote Asian country. While I assist clients in filing trademark applications in many foreign jurisdictions, I had never received a request to file anything in this particular country. I reached out to my mastermind group and, lo and behold, received a great referral to a firm that could serve as local counsel.

Being a solo practitioner does not mean being alone. Networking, which is more than sticking your hand out at a cocktail party and introducing yourself, can mean the difference between success and failure.

Remember It’s a Customer Service Business

The practice of law is a noble profession. Its nobility is one of the reasons I elected to transition from engineering to the law. However, it is important to remember that the practice of law is a customer service business as well. A great way to sink a law practice run by a smart lawyer is to forget the latter point.

During my career, I have had the privilege of interacting with many private law firms in varying capacities. I recall one large firm helping a client with a copyright issue. I was just a law student, but read a memo this particular firm had written on whether a work qualified as copyrightable subject matter. It drew some “creative” conclusions, so much so that the firm even received requests to see additional case citations for the legal conclusions of the memo.

Despite the unique interpretation of the law set forth in a memo, the law firm was attentive to the client’s needs. The law firm was incredibly responsive as well, treating the client as if it were the firm’s only client. The law firm went out of its way to save client time rather than create additional work for the client. The firm prided itself on its customer service. This focus on the customer was so good that it could mitigate any damage from the delivery of a rather “creative” legal memo.

Contrast this with an exceptional patent attorney I encountered. This attorney’s work product was exceptional. Errors and the aforementioned “creativity” were nonexistent in the attorney’s work. However, during the prosecution of one particular patent application, an examiner raised—with questionable merit—several objections of form to a particular application. The client asked the attorney to correct the issues cited by the examiner. These corrections would have had no impact on the scope of the claims of the application.

Rather than doing this, the attorney actually began arguing with the client, explaining that the objections were in error and should be argued rather than corrected. What would have been a simple time-saver for the client suddenly became an extra burden. Very little work—if any—was assigned to this patent attorney thereafter.

The point of this comparison story is that while there is never any excuse for deficient legal work, a strong focus on the client interface relationship will allow your practice to survive the occasional mistake. An average attorney with exceptional customer service will always outlive the exceptional attorney with substandard customer service. As my dad used to say, “A satisfied customer tells two people of their satisfaction. A dissatisfied one tells 10.” While the practice of law requires a quick mind; extensive, specialized training and licensing; and exceptional work product, it is still a customer service business. Your firm will do well to remember this fact.

Own Your Mistakes—and Correct Them

While nobody likes to make a mistake, all attorneys are ultimately human. Humans, invariably, make mistakes. I am no different. I’ve made more than a few pretty big mistakes along the way.

Clients understand this fact. The key to making a mistake is how you deal with that mistake. The key to handling any mistake—no matter how large—is quickly notifying the client and then diligently working to correct the mistake. Without exception, whenever I’ve made a mistake and quickly notified the client with a plan for correcting the same, the client has been both kind and understanding. This is especially true when correcting the mistake involves financial outlays. My firm has more than once paid fees and costs to correct issues we’ve created, and clients have not only appreciated our efforts but also remembered them as “above and beyond” examples of exceptional customer service.

Wine is a great hobby of mine, and I’m a certified sommelier with the Court of Master Sommeliers. Becoming a certified sommelier requires passing a tasting exam, a theory exam, and a service exam. In the service portion of the examination, one serves one or more master sommeliers sparkling wine or decants a wine with age, in addition to answering questions about cocktails, food and wine pairings, aperitifs, and digestifs. I have seen people pass the examination after dropping glasses on the floor or, worse, spilling wine all over a master sommelier. It was not that they did not fail after the spilling or dropping, but rather that they recovered and passed because they handled the mistake professionally. In this sense, the occupations of being an attorney and being a sommelier are not so different. When you make a mistake, your present—and future—success depends upon quickly owning it, notifying the client, formulating a plan for dealing with the issue, and diligently working to resolve the same. A complimentary bottle of wine and an apology go a long way in resolving what seem to be inexcusable errors.

Invest in Software and Technology

For a solo practice to operate efficiently, it must be automated. There are so many high-quality automation tools available today that it would be folly not to take advantage of them.

As anyone practicing in the intellectual property space understands, a docketing system is essential. I use, and have had great success with, FoundationIP. My practice is heavily patent focused, and FoundationIP does a brilliant job with handling prior art. It additionally provides clients with a portal login, stores files securely in the cloud, and eliminates the need to have a giant server running in my office. Others I know have had success with other systems. Relying upon paper or spreadsheets alone is a recipe for failure.

A proper file management system is critical to success. It is crucial to have both cloud storage and disparately located, local storage. The key to remember is “LOCKSS: lots of copies keeps stuff safe.” Our firm uses a combination of two different cloud storage systems and three separate servers, each with dedicated backup systems, to maintain its files. If one system goes down, another is ready to replicate the files.

Client interface automation can be quite helpful as well, especially during times such as those we’ve recently experienced during the pandemic. Electronic signature systems, such as Nitro Pro, and electronic payment programs, such as Headnote, can save time for you as well as your clients. A good accounting system, such as QuickBooks, is important as well. Online mail systems such as Office365 eliminate the need to maintain dedicated email servers onsite.

Work-product assistance tools can save hours. Illustrating by example, for proofreading patent applications, a tool called ClaimMaster will check claims for errors, check for antecedent basis problems, and check for errors with reference designators—both in the specification and in the drawings. Some subscriptions will even prepopulate amendment templates in response to office actions and perform other features as well.

Sometimes even the simplest hacks can save time. Did you know you can customize the autocorrect feature of your word processor? If I am writing a patent application that recites an ultra-hyphenated noncongruent, flexed open configuration, I can simply configure my autocorrect feature to replace “anfoc” with that term. Can’t type 75 words per minute? You can if your autocorrect feature is properly configured.

For case law research, the State Bar of Georgia makes FastCase available as a benefit to members. Many other bar associations do as well. Having used the system, I’ve found it to be an incredibly useful tool that has saved me many hundreds of dollars in subscription fees for those other commercial services you used in law school. Seek out such products, as even those that require subscriptions quickly pay for themselves in saved time and effort.

Remember to maintain a healthy work-life balance.

Avoid the Pitfalls

While many of the tips set forth above are affirmative actions to take or advice to follow, it is critical to avoid common pitfalls when starting or running a practice as well. You would be amazed at some of the advice I’ve received, including a suggestion that client trust accounts “aren’t really required” or that there is no obligation to submit prior art to the U.S. Patent and Trademark Office (USPTO) when prosecuting patents. Free advice is worth what you pay for it; and when you get it, it’s best to take the “Reaganesque” approach: trust and verify.

A great place to start is with your state’s professional conduct rules governing attorneys. In Georgia, for example, Rule 7.2 of the Georgia Rules of Professional Conduct requires that any advertisement for legal services directed to potential clients include a prominent disclosure of both the identity of the attorney and their physical location. Did you know that location was required in an advertisement in addition to an attorney’s name? Rule 1.5 prevents any division of fees between lawyers of different firms without confirmation that the client has been advised of the share each lawyer will receive and a lack of objection to the participation of all lawyers involved. Did you know that the exact share of each attorney must be disclosed to your client?

Reviewing these rules is critically important. While those listed above may appear obvious to some, others are not. Illustrating by example, I was attending a continuing legal education event at the State Bar of Georgia, where the issue of advertising arose. The question was whether a patent attorney could provide patents of existing clients—which are publicly available documents at the USPTO—as examples of the attorney’s prior work without the client’s consent. After all, they are publicly available to anyone. I think everyone in attendance was surprised when the Office of the General Counsel indicated that the practice actually violated the Rules of Professional Conduct. Telling a prospective client to search for the attorney’s name in the USPTO’s database for patents listing the attorney as attorney of record was fine, but disclosing a patent number or presenting a patent was a violation of the rules. This example makes clear that an understanding of the rules of professional conduct is imperative.

Another pitfall to avoid is attempting to take practice shortcuts to save money. For instance, I know some attorneys who carry no professional liability insurance or purchase the cheapest insurance they can find. Similarly, I know some attorneys who refuse to use docketing systems because they are too expensive. Succumbing to such temptation is a recipe for failure. I not only want professional liability insurance, but I also want it from a provider who will defend me in court from any frivolous charges that may be asserted. Not only do I want a docketing system, but I also want a robust docketing system that will remind me of tasks at multiple times in multiple ways. As they say, buy quality and cry once at the time of purchase. Buy inferior and cry every time your shortcut fails you.

A third pitfall to avoid is refusing to ask for help. Invariably, every solo practitioner comes across a practice issue, legal question, or fact pattern with which they need assistance. When this occurs, reach out to another attorney. They are generally happy to provide assistance and counsel.

A final pitfall to avoid is the failure to maintain a healthy work-life balance. Being a solo practitioner is great, in that whether to work or do something else is your decision. If you want to work a 20-hour day or play golf one afternoon, it’s completely your choice. However, it can sometimes be easy to overlook your own health in doing so. I love solo practice, but I work far more hours than I did as an in-house attorney. Additionally, without having other lawyers at the firm, it can be challenging to take a true vacation. However, doing so is incredibly important. Attorneys cannot serve their clients well without proper mental wellbeing and physical health. Fortunately, almost every bar association provides wellness resources to lawyers. Take advantage of such resources, and remember to take care of yourself so that you can take care of the interests of your clients.

Just Do It

If, after reading this article, life as a solo practitioner or member of a small firm is for you, my last tip is to have the confidence to seize the day and do it. I loved my in-house job but received a call one day informing me that it had been relocated across the country. I could relocate with it, or do something else. That call turned out to be an opportunity and led me to start my firm in the summer of 2005. There will never be a better time for the present, so when you conclude that small firm life is for you, do it. Your future self will wonder why you didn’t do it sooner. If you have any questions along the way, just shoot me an email.

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