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Bencher's Diary: Explaining the facts of life to young lawyers

|Written By Gary Lloyd Gottlieb

Mason patted her shoulder and said, "You''re free now. But what do I do about your fee, Mr. Mason?"

Mason [who had already done substantial work] said, "Send me a cheque for a hundred dollars when you get around to it and find it convenient, but don't worry about it."

- from The Case of the Horrified Heirs,
A Perry Mason Mystery by Erle Stanley Gardner

Most lawyers, especially those starting out, cannot afford to be as cavalier as Perry Mason about charging and collecting fees. Nor can they be nonchalant and not worry about where work will come from.

I recently received an e-mail and a phone call from two young lawyers. One is entering private practice and the other has been a sole practitioner for a year. Both were concerned about making a living.

The first was looking for a position with a law firm, preferably in Toronto, but was considering going out on his own if his job hunt proved futile. He wanted to know if it was feasible for a young lawyer with little experience to become a sole practitioner. A number of lawyers had already told him that beginning on his own was not a good idea in this day and age, and he asked for my thoughts.

I sent him a few of my past Law Times columns to help him make an informed decision ("What I wish they had taught me in law school," Oct. 16, 2000; "Sole practitioners never sleep," Jan. 27, 2003; and "Sole practice: Why do we do it?" June 23, 2003).

I did not want to discourage my young colleague, but I remembered a meeting of the law society task force on sole practitioners and small-firm lawyers. We had received our first research study and one member of the task force remarked that to read it was to weep. Many sole practitioners lead an isolated existence and struggle economically.

A big-firm member of the task force observed that perhaps we just ought to point out to young lawyers that sole practice is an extremely tough row to hoe and it takes a certain temperament to successfully overcome the challenges it presents. And if maximizing one's future income is a primary motivation, sole practice is clearly not the way to go.

I am happy to give young lawyers advice when they are contemplating sole practice, but after 37 years of experience I tell them I do not recommend it. The freedom is illusory, the clients one serves are often difficult and unwilling to pay or unable to afford proper fees, and if one does family, criminal, or immigration work, much of it will be legal aid.

Whether one is in sole practice or a large firm, one's existence is going to be stressful and it will be a struggle to achieve a balanced life. That being the case, unless one has a strong penchant for idealism, if one has the ability and talent one might as well work in a large-firm environment, do more sophisticated work, have better legal resources close at hand, and be properly paid.

The phone call I received from the young lawyer who had just completed his first year of sole practice was more troubling. He told me about the economic struggles he faced and he thought the law society's primary goal was to ensure the surviving and thriving of sole practitioners like himself.

He also believed that financial audits and now practice reviews were merely supportive tools for private practitioners, and assuming no serious deficiencies were found, any resulting recommendations were merely suggestions. It behooved me to explain to him the facts of legal life, whether or not I or he personally agreed with them.

The law society is not the bar association. Its primary raison d'être is the regulation of the profession in the public interest. The fact he could not afford a dedicated legal accounting program was no justification for not purchasing and modifying generic accounting software and keeping his books and records up to date. Nor were the many challenges of sole practice justification for not complying with good practice standards.

I told him one thing the law society does admirably is provide superb materials on its web site and he should make use of them, including the Bookkeeping Guide, the Best Practices Self-assessment Tool, and Practice Management Guidelines.

I explained my view that since most private practitioners are in sole and small-firm practice, the weight of the society's regulatory function, including audits and reviews, perforce falls on sole practitioners and small-firm lawyers, and that it is not cost-beneficial to perform such audits and reviews randomly rather than where indicia are present that suggest such audits and reviews will be fruitful.

I told him, however, that my view is not shared by the overwhelming majority of fellow benchers, and be that as it may, it is the duty of a practitioner under audit or review to be respectful and co-operative and to rectify any deficiencies and put into practice any recommendations that are made.

I told him I understood his economic circumstances, but joining the Ontario Bar Association and the sections applicable to his practice and attending section meetings would be money well spent. He should scrimp and save from other areas of his budget. The bar association and its sections provide good networking opportunities and he would meet and befriend colleagues there he could speak to for assistance and advice.

He was bewildered that the law society will be regulating paralegals. He said paralegals had already encroached on many areas of law and asked me if the law society realizes this.

Again I had to explain to him the facts of life and wondered where he'd been the last number of years. I said if he wanted insurance against finding his practice eroded in the future, the best thing he could do was avoid solicitor's work and restrict his practice to barrister services at the superior and appellate court levels.


Gary Lloyd Gottlieb, a Toronto sole practitioner, is a bencher of the Law Society of Upper Canada.  His

e-mail address is glgqc@interlo.com

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