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May 09, 2012 Articles

How I Decided to Open My Practice

By Sandra Johnston

When making the decision about whether to open a practice, some lawyers come to the decision honestly, with a sincere desire and motivation to work for themselves. They perceive a higher calling, a desire to do great things all on their own, and want to be a trailblazer. I had no such illusions. I was never even interested in being a practicing lawyer when I started law school. At the time I began my law journey, I saw it as more of a box to check off on my already successful career as a Washington, D.C., policy analyst. However, during law school, while working for the public defender's office, I was bitten by the trial bug. Trial work was everything I had wanted in a job. It gave me the satisfaction of really helping people who desperately needed me, with the intense rush of trial work. I was hooked.

Notwithstanding my having figured out that I loved trial work, the next step eluded me. It was the summer of 1997, a time in my life when money was scarce and jobs were even more so. I had stopped working after finishing law school so that I could study full time for the bar exam. At the end of a grueling few months of study, and bags and bags of M&Ms, I found myself holding my breath. No one ever expects to fail the bar exam. No one ever expects to pass it either. I was just sitting there waiting and feeling like a fraud, like I was moments from being revealed as a pretender. How did I ever finish law school? Was this my life?

I was waiting to see whether I would ever be able to be a practicing trial lawyer now that I had fallen in love with it. Horrendous self-doubt seized me, and I could not believe that which I had grown to love so much would ever be mine. At the same time, I desperately needed an income. I didn't have anything lined up after school like so many of my friends. I was walking through a fog of my own insecurities. The prized positions available for new lawyers were already taken. I sniffed around everywhere for something that resembled a real legal job or real trial work. What I found—the only work I found—was a position at the King County, Washington, prosecuting attorney's office as a "floater"—that is, a contract panel attorney. We were called special deputy prosecuting attorneys, and we earned $10.50 an hour. Those hours were completely dependent on my boss's willingness to provide them. There was no job security, even at wages reminiscent of my time spent as a carhop waitress earning 50 cents an hour (the pay was worse, but my cost of living was nothing back then); I had essentially discovered the fast-food-restaurant pay of the legal field.

The King County prosecuting attorney's office had hired several contract attorneys from the 1997 graduating class. As I recall, the office hired only a couple of full-time hires and a handful more on a contract basis. Even though I made only $10.50 an hour, I had to account for every second of my time. When I worked vigorously and spent long hours at my job preparing the case for trial, I got in trouble for running up my hours. It felt like they were more interested in having a warm body at their hearings, rather than a lawyer actively trying to win cases for them. On the other hand, the victims I represented loved me, and I got along well with the police officers. The work was amazing, even if the stuff that went along with it wasn't. The strangest thing about working for a government agency was that it appeared to me that the harder I worked my cases, the worse I was treated. I never did understand why.

Regardless, I had landed at the very bottom of the lowest rung of the last level of the food chain, while basically working for free. The one saving grace about the position was the location to which I was assigned. Living in Tacoma, Washington, which is located in the county adjacent to the southern tip of King County, there was a possibility that I would be forced to travel over an hour just to get to work. The interstate that connects the two counties (I5) is notorious for being wall-to-wall traffic. It's one of the worst commutes in the country. I was placed at the southern-most court in King County, the Regional Justice Center in Kent, so my drive was manageable—about 25 minutes. I was glad to be placed as close to home as possible.

At $10.50 an hour, every penny counted. I barely made rent, much less paid bills. My credit-card debt continued to skyrocket. It seemed pretty bleak, but at least I was getting to practice as a trial lawyer and to even try cases. In the state of Washington, a second-year law-school student is eligible to apply for Rule 9 Legal Intern status. Working under a licensed attorney is the only way to practice in this state without a license, so I was surviving—sort of.

The bar results were finally posted in the fall of 1997, and then I received lovely news. I was invited to be sworn in by one of my law-school professors, Justice Charles Johnson of the Washington State Supreme Court, at a ceremony held before an en banc sitting. It was such an honor to be chosen for this ceremony. It was scheduled for November—a little over a month away. I anxiously waited to become a lawyer.

It was after the announcements came out about who passed the bar that a weird thing happened at my job. I wasn't scheduled. They stopped calling me. After a couple of weeks, my boss called. This was odd, as usually her secretary would call to give me a schedule. First, she congratulated me on passing the bar. You see, several of her picks for regular hire had failed the bar, and most of us second-tier contract floaters had passed it. What sweet irony! She was excited that I had passed and said that she needed to send me to Shoreline (the northern-most court in King County) to do video arraignments.

I was stunned. First, because my commute was about to go from 20 minutes to probably a couple of hours in rush hour traffic, my gas bill was going to quadruple, my day was going to get a lot more difficult, and the work I'd be performing—well, let's just say that a trained monkey could do the same job with little noticeable difference. You know that dream where you read the same paragraph over and over.

As I was considering all of this, I came back into the conversation, hearing my boss congratulating me on passing. It snapped home when I heard her say that a judge she knew would be swearing me in the next day. That's when I told her my great news about getting invited to the Washington State Supreme Court ceremony. She gasped, "But that's not for another month!" To which I replied (no really), "and you're very happy for me because it's such a big deal, right?" She paused. "Sure, call me when you're licensed" and she hung up.

During the conversation, I had pointed out that I was the only employee who lived in Pierce County, yet I was being asked to drive to the northern-most part of King County. I also let her know that I was very happy at the Regional Justice Center. Her response? She needed someone to go to Shoreline who had passed the bar, and that was me. I was crestfallen. I am not a "happy" driver.

About a week had passed since the conversation about going to Shoreline when I got a call for help from my mentor and a well-respected local attorney, Jim Mason. Jim was the quintessential good old boy. He had a three-digit bar number (compared to mine at five). I had worked for Jim part time during my 2L summer at Preston, Gates, and Ellis in Tacoma, and we had become very close.

He was always trying to marry me off that first summer. I thought that was pretty cute. As an aside, if you are a woman lawyer, don't be too quick to take offense at old-school sexism. Jim was sincere in thinking that I should have a really great guy, and he did so because he had daughters my age and he cared about me. If I had let that offend me all those years ago, I probably would have left that job and might not be where I am today. My point is that you shouldn't be too quick to take offense with others. Being successful means letting a lot of things roll off your back. Approaching the world with grace will always work well for you. But I digress.

Jim called me because he needed my help on a case. He had agreed to defend a gun-shop owner accused of assaulting a customer. The customer had apparently sprayed the gun-shop owner in the face with mace, and the owner then proceeded to beat the customer soundly. Self-defense gets harder to argue when the victim is lying on the ground while the defendant is seen kicking him in the stomach. There were bystander witnesses.

Jim said he was rusty on criminal law and needed my help to understand the different stages of a criminal case. We had lunch and I walked him through it. Mostly Jim wanted to know how to get the deputy prosecuting attorney (DPA) to deal, but Jim was to discover what all young lawyers learn the hard way: Deals are often made based on personal relationships. The best way to get a great deal is to have a great case or to have a great relationship with the DPA in charge of the case. Jim had neither.

A few more days passed. Still no word from my $10.50 an hour job. At this rate, even doing "video arraignments" started to sound good. I was left sitting at home, watching the phone, when Jim called me again. He was at his wits end with criminal law. He was frustrated that the DPA would not return calls or take any time to negotiate the case with him at court hearings. I offered some suggestions, but Jim cut me off. "I'm too old to learn a new area of the law, Sandra. You need to take this case for me." I explained that it was impossible for me to defend a case in the same county where I worked as a DPA, even if I was only a contract attorney. His reply? "Quit. You need to quit that job. They don't appreciate you. You are too talented to work for someone else. It's time you opened your own firm." Well he might as well have suggested I fly to the moon. "How am I going to do that? How will I get paid?" Jim responded by promising that he would pay me directly. "How much will you pay me, Jim?" To which he chuckled "I'll pay you whatever you want."

Well, I thought that one over. I desperately needed to make money, any money, but I had not worked in a couple of weeks and had no reserves left. I had reached the end. I was a grown-up and living by myself after law school. I didn't have the luxury to go home and live with my folks. On the other hand, the job I did have wasn't giving me hours and the newly promised job and commute were hanging above me like the sword of Damocles. So I thought about it and decided I should ask for at least double my current hourly income. "How about $25 an hour?" "What?" he responded. Aw shoot, I thought. There I go, being greedy. And for a moment I was very disappointed with myself. I figured I had just talked myself out of a new opportunity.

Jim laughed out loud and said, "You'll charge me $125 an hour and not a penny less!" I pinched myself and said to myself, "A hundred and twenty-five dollars an hour?" To say that I was stunned does not begin to describe that moment. "How do I get paid?" "Just keep track of your hours, Sandra. I'll pay you. Just bill the firm." "You mean I get to bill you for every single hour I work on this case no matter how long it takes me?" Even though we were on the phone, I could see the laughter covering his face. "Yep!" he said, "Just bill me. I'll handle getting payment from the client."

That was the minute I became the owner of my own firm. I did a great job for Jim's client. I made a motion to dismiss based on the state's failure to maintain material evidence, which my colleagues all told me that, although it was law, no one had ever actually prevailed under the motion. In the gun-shop owner's case, in addition to spraying him with mace, the "victim" had pulled a knife, but the rookie cop failed to take it into evidence. I subpoenaed the other seasoned cops (all male) who bought their firearms from that gun shop, and they testified against the rookie female cop. I won the motion. The court agreed with me, and my client's case was dismissed. Jim thought I walked on water. True to his word, Jim paid me for every hour I worked on the case, which was way too much for a misdemeanor criminal matter. I understand the client believed my services were worth every penny.

Having no office or supplies, I asked a lawyer I knew who ran his own firm whether I could borrow his conference room to meet with clients. He let me use his conference room, his address for my letterhead, and his main number, which gave me a free place to meet with clients. I had cards made with his address, but worked from home and put in a separate line, which I only answered during business hours, otherwise letting it go to voice mail. I chose not to pay for a receptionist service, but I have colleagues even now who just love that kind of service.

I raided Jim's forms, because he was still at a big firm, but I used forms from other lawyers as well. The most important thing you can do when setting up your own practice, in my humble opinion, is find a solid but cheap accountant and a malpractice attorney who will take your call no matter the time of day or night.

During my first six months of private practice, I brought in more income than the prior year. Every year thereafter my income doubled until the economy crashed. Nonetheless, I always seem to have more business than I can justifiably handle. Some key elements of private practice are a solid fee agreement and a plan to extricate yourself from clients who do not pay you or do not pay on time.

The moral of this story is that the path to private practice can be a very crooked road. I did not have any resources when I started my practice, and now we are making more than $200,000 per year. You don't need a business plan, a small-business loan, or any resources at all, for that matter. All you need is a phone line and a place to meet clients. I know lawyers who have virtual offices and always meet clients at the law library or in a conference room at the local courthouse. There are some who only use their cell phones and make themselves available 24 hours a day. The point is to be true to yourself, to set boundaries with your clients, and to just go for it. What are you waiting for? Get going.

Keywords: litigation, solo practitioners, small firms, young lawyers

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