Lawyers on Their Own: The Solo Practitioner in an Urban Setting

By Jerome E. Carlin

Renowned socio-legal study of lawyers in solo practice in Chicago during the 1960s, as updated in 1994. Includes new 2011 Foreword by law professor William Gallagher. The book is considered foundational for studies of the legal profession and legal ethics for small-client practice. Carlin exposes the underbelly of practice among solo lawyers and their methods of getting business, in many settings.

• Language: English
• Publisher: Quid Pro, LLC
• Release date: Jul 16, 2011
• ISBN: 9781610270915

Book preview

What the American Bar thinks about LAWYERS ON THEIR OWN, from the previous editions...

A devastating study, report and analysis . . . Obviously there is much to be done in this field.

— American Bar Association Journal

A book laymen should read, law professors will read, and every law student must read.

— Melvin Belli, San Francisco

A true classic. . . It will be good to have it more readily available. The book remains relevant and valid today, and deserves a wider audience in the current generation.

— John P. Heinz, Distinguished Research Fellow, American Bar Foundation

LAWYERS on Their Own

The Solo Practitioner in an Urban Setting

JEROME E. CARLIN

with 2011 FOREWORD

by

WILLIAM T. GALLAGHER

qp

Quid Pro Books

New Orleans, Louisiana

Classics of Law & Society Series

Copyright © 1994, 2011 by Jerome E. Carlin. All rights reserved.

Foreword copyright © 2011 by William T. Gallagher.

Originally published in 1994 by Austin & Winfield Publishers, Inc. (San Francisco & London), and previously in its 1962 Edition by Rutgers University Press.

Published in the 2011 Edition by Quid Pro Books, at Smashwords.

Quid Pro, LLC

5860 Citrus Blvd., suite D-101

New Orleans, Louisiana 70123

www.quidprobooks.com

Part of the Classics of Law & Society Series.

ISBN 16102709016

EAN 9781610270915

COVER: Original artwork and design by Jerome E. Carlin, © 1994. Author photograph © 2010 by Shelly Errington.

Acknowledgment is made to West Publishing Company for permission to quote from The American Law School Review.

Publisher’s Cataloging-in-Publication

Carlin, Jerome E.

Lawyers on their own: the solo practitioner in an urban setting / Jerome E. Carlin.

p. cm.

Includes 2011 foreword and 1994 introduction.

Includes bibliographic references, appendices, and index.

Series: Classics of Law & Society.

ISBN: 1610270916 (ePub)

1. Practice of Law—United States. 2. Attorney and Client—United States. 3. Lawyers—United States—Solo Practice. 4. Sociology—Professional Roles. 5. Practice of Law—United States—Sociological Aspects. 6. Lawyers—Illinois—Chicago. I. Title. II. Series.

KF300.C3 2011

349’.773’115—dc20

201131400

LICENSE NOTES, Smashwords edition: This ebook is licensed for your personal use only. This ebook may not be resold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each person. Thank you for respecting the hard work of the author.

Contents

This ebook includes the original pagination of previous editions, and these numbers are embedded into text and notes by the use of {brackets}. Original page numbers are inserted into this edition for continuity and citation purposes, and to permit consistent pagination in ebook formats. The original pagination is used in the Index as well.

Foreword, 2011, by William T. Gallagher

Acknowledgments to the 1994 Edition

Introduction to the 1994 Edition, by the author

Preface to the 1962 Edition:

1. The Road to Individual Practice

2. The Work of the Individual Practitioner

3. Getting Business

4. The Ethical Dilemmas of Individual Practice

5. The Anatomy of Dissatisfaction

Conclusion

Appendix A. Methodological Note

Appendix B. Interview Schedule

References and Endnotes

Bibliography for the 2011 Foreword

Bibliography for the 1994 Introduction

Bibliography, 1962

Notes

Index

To my parents

FOREWORD

As a Ph.D. student in Berkeley’s Jurisprudence and Social Policy Program (JSP) in the late 1980s, I organized an informal Berkeley-Stanford discussion group that brought together faculty and graduate students to discuss recent scholarship on the legal profession. At the suggestion of Sheldon Messinger (then a member of the JSP faculty), I invited a friend and former colleague of his, Jerome Carlin, to attend our meetings. Of course, I knew who Carlin was because of his seminal studies of lawyers’ backgrounds, practices and ethics, Lawyers on Their Own (1962) and Lawyers’ Ethics (1966), and I was delighted when he agreed to join our group. Carlin was an active and interested participant—even if he insisted on identifying himself as Jerry Carlin, artist as we began each session by going around the seminar table to introduce ourselves to new members.

Carlin’s participation in this group spurred him to leave the artist studio long enough to issue a 1994 edition of Lawyers on Their Own (Carlin 1994), which contained both a new introductory essay by the author as well as Carlin’s original cover art for the book. This 1994 edition went out of print, however, so it is a delight that Jerry Carlin the artist—and sociologist—has been supportive of the efforts to have his classic book made more accessible in this new electronic and paperback version (featuring the artist’s original cover as well).

Carlin’s Lawyers on Their Own is a classic in the best sense of that term. It is a pioneering qualitative empirical¹ study of a segment of the bar that has been little studied before or since. As Carlin himself stressed in the Introduction to the 1994 edition of his book, contemporary research on solo and small firm lawyers has been far outnumbered by studies of large firm lawyers and lawyering (Carlin 1994:xvi).² Of course, the late 20th century rise of the large law firm is a dramatic and important development that warrants much scholarly attention (e.g., Galanter and Palay 1991; Galanter and Henderson 2008). Yet, Carlin is correct to point out that scholarship on solo and small-practice lawyers has been unduly neglected in the period since his own work was first published, even if there are notable recent contributions to this literature (e.g., Seron 1996; Van Hoy 1997; Levin 2001). Moreover, while solo practitioners constitute a significantly smaller percentage of U.S. lawyers in the nearly 50 years since Carlin’s work was first published, they still constitute almost half of the private practice bar (Carson 2004) and are thus an important focus for scholarly attention. It started with this book.

Lawyers on Their Own has also been highly influential to new generations of scholars who, like Carlin, study how the organizational settings in which lawyers work affect their everyday practices (e.g., Rosen, 1984; Nelson and Trubek 1992; Mather et al. 2001) and who use a variety of empirical methods—both qualitative and quantitative—to study the ethical worlds of contemporary lawyers in a variety of practice settings (e.g., Fortney 1997; Regan 2000; Levin 2001; Shapiro 2002; Griffiths-Baker 2002; Kirkland 2005; Abel 2008, 2011; Gallagher 2011; see also Levin and Mather 2011).

The world Carlin depicts in Lawyers on Their Own is at times strange, almost shocking, and certainly does not comport with an idealized image of lawyers constituting an independent and learned profession. The solo, urban, and largely ethnic practitioners³ in Carlin’s study have a marginal professional existence at the bottom of the status hierarchy of the bar. Most of their law practices are generally not economically successful or emotionally satisfying, as these lawyers—due to economic necessity—have little ability to pick and choose the types of clients they will work for or the types of cases they will accept. The work these lawyers engage in often has little to do with the practice of law (or at least with a very high level of practice). It more often involves completing and filing routine standardized legal forms, referring clients to other attorneys (and thereby collecting bare referral fees without doing legal work for the client), and manipulating local governmental officials on a client’s behalf. As Carlin concludes, the lawyers he studied served more as bookkeepers, brokers, or fixers than as lawyers engaged in tasks requiring significant knowledge of the law, legal analysis, judgment, or creativity (Carlin 1994:207-209).

Carlin’s study raises serious concerns about the ability of the marginal and harried solo lawyers he studied to be able to adhere to the niceties of the ethics rules, as the unrelenting economic pressure that these lawyers faced to generate business creates a concomitant pressure to engage in unethical conduct. In sharp contrast, Carlin suggests that elite large-firm Chicago lawyers faced far fewer economic pressures and were thus able to more readily comply with professional ethics rules. Yet Carlin is careful not to place the blame for the solo lawyers’ unethicality on these lawyers alone.⁴ He suggests that the elite segments of the bar share responsibility for the shameful state of affairs his study depicts by failing to address some of the underlying causes, such as corrupt and ineffective local courts and agencies as well as defective laws and regulations that encouraged the use of extra-legal fixes. Carlin’s study suggests that there is a significant need for both law reform and social reform to address the worst behaviors of the urban solo lawyer underclass he studied, and thereby protect the clients these lawyers represent. In this way, Lawyers on Their Own is informed by legal profession theory and a Chicago School sociological sensibility, but it is also keenly focused on critical social commentary about the nature of legal practice, legal education, and the provision of ethical legal services to the public.

Carlin’s findings in Lawyers on Their Own were important in 1962 and continue to suggest fruitful and critical questions for contemporary scholars of the legal profession. Certainly there is a need to understand what—if anything—has changed for solo practice lawyers. Are the contemporary conditions of solo lawyering as bleak and as conducive to unethical practices as those in Carlin’s study? Given the tremendous changes in the economic structure and hyper-competitive conditions of contemporary private law practice at even elite large law firms, what does this portend for the ethical conduct of these elite lawyers? Scholars have begun to build on Carlin’s insights and to critically examine such issues (e.g., Regan 2000; Galanter and Henderson 2008).

More generally, Carlin’s work informs a broader set of important questions about how and why lawyers go bad. Under what circumstances and conditions do lawyers behave unethically and why? How can we best protect the public from unethical lawyering? Contemporary empirical scholarship on the legal profession also builds on Carlin’s work as it addresses some of these issues (e.g., Abel 2008, 2011; Regan, 2000; Shapiro 2001; Griffiths-Baker 2001; Gallagher 2011).

Lawyers on Their Own thus remains an important and influential study that shapes much critical scholarship on the legal profession—the very definition of a classic.

William T. Gallagher

Golden Gate University Law School

San Francisco, California

June 2011

NOTES

1. The data for Carlin’s book derive from face-to-face interviews with 84 solo practitioners in Chicago. Carlin subsequently used a quantitative methodology to build on this research—his survey of 801 lawyers in the New York City Bar (Carlin 1966).

2. All internal references appear at the end of the book, before the Notes. See the Contents page. The page numbers from the 1994 edition (which in turn follow the first edition) are inserted into this edition’s text by the use of brackets. Citations in this Foreword are to the earlier versions but can be readily located in this edition, whether in print or digital formats, using the bracketed pagination.

3. The lawyers—all men—were primarily second generation offspring of relatively uneducated Eastern European-born immigrants. Most of these lawyers were not college graduates themselves, and many were trained in part-time law school programs of varying academic quality (Carlin 1994:24-25). Such sociologists as Cynthia Fuchs Epstein (1993) have followed in Carlin’s footpath by studying how women lawyers became increasingly integrated (or have attempted to be so) into a variety of organizational settings.

4. Carlin is also careful to stress that lawyers in all segments of the bar may act unethically, and that many solo practitioners both engage in ethical practices and have successful law practices. His focus is on how and why a segment of marginal lawyers in a deeply stratified bar may fail to adhere to professional ethical standards.

Acknowledgments to the 1994 Edition

With the re-publication of Lawyers on Their Own I faced the formidable challenge of giving an account of the changes that had taken place in the legal profession after more than 30 years. The task did indeed seem insurmountable because my own interests had so changed since 1970, when I made a major shift from the life of a social science researcher/public interest lawyer to that of a painter, working alone in my studio. Thus the new edition could not even have been imagined without the encouragement and assistance of many friends and past colleagues.

First and foremost is Marc Galanter, Professor of Law and South Asian Studies and Director of the Institute for Legal Studies at the University of Wisconsin. Marc’s continuing assistance and friendship were the most critical ingredients for this undertaking.

It was Marc who put me in touch with Jerry Van Hoy whose recent dissertation at Northwestern, which included interviews with a number of solo practitioners in Chicago, was very pertinent to my efforts at describing changes in solo practice. My many conversations with Jerry were most helpful. I am very grateful as well to those other researchers in the area of the legal profession who took the time to read an early draft of the new introduction and provide me with their very helpful comments: Ric Abel, Steve Bundy, Barbara Curran, Lawrence Friedman, Jack Heinz, Bob Kagan, Sheldon Messinger, Robert Nelson, Robert Post, Carroll Seron, and Susan Shapiro.

I got a crucial head start on this project in 1988 and 1989 when I participated in an informal discussion group with several law professors and sociologists at Berkeley and Stanford who were looking into recent research on the legal profession.

I found extremely helpful the observations of several contemporary solo practitioners who compared the picture I painted in the original publication with their own experience. Included are my son Nicholas Carlin, who practices in San Francisco, and who recently became a partner in a small firm, and a number of solo lawyers in Chicago. While they all pointed out changes, they also confirmed that much has remained essentially the same. As one of the Chicago lawyers observed: I was amazed reading the book—you almost wouldn’t know it was 1958. It’s just like today!

Finally, I would like to thank those friends who urged me to keep at it, some of whom gave me very useful editorial advice—Howard Becker, Joy Carlin, Louise Frankel, Fran Gendlin, Gene Opton, and Hamish Sandison.

— J.E.C.

{Page ix in 1994 edition}

Introduction to the 1994 Edition

What started as a study in the sociology of the professions—my 1958 doctoral dissertation at the University of Chicago—turned into a report to the public and to the legal profession on what actually was going on in the practice of law. The picture that emerged, which I presented in the original edition of Lawyers on Their Own, of the conditions of practice encountered by solo practitioners in Chicago was very disturbing.

I was drawn to the social sciences as a vehicle for understanding the structure and operation of our complex society. I became convinced that lawyers provided a key to understanding how such a society functioned, and that they very likely played a critical role in the development and maintenance of our market economy and democratic system: maintaining and defending our rights and liberties. To broaden {page x follows} the foundation for my understanding of the legal profession, I interrupted my graduate work in sociology to enter law school.

I went on from the exploration of Chicago solo lawyers to a study in 1960 at Columbia University of the ethics of New York City lawyers. The principal conclusions of these two inquiries were:

(1) Lawyers in private practice are part of a highly stratified profession whose divisions parallel and very likely reinforce the class and economic divisions in the wider society. The best trained lawyers are at the top in the large firms with a monopoly of the largest, best-paying corporate clients, coming in contact with upper-level courts and agencies. The individual practitioners are at the bottom, having the lowest paying and least desirable clients and cases dealing with the lowest levels of government. A largely unexamined group of lawyers in small- to medium-size firms are somewhere in between.

(2) The individual practitioners—the most dissatisfied, disillusioned, disappointed segment—have little freedom in choice of clients, type of work, or conditions of practice. They are rarely called upon to exercise a high level of professional skill; in most cases they engage in fairly routine clerical and bookkeeping tasks, much of their time taken up with brokerage activities, acting as middlemen between clients and other lawyers. The results obtained for clients often depend less on manipulating legal doctrine than on manipulating local officials. Consequently, in their efforts to obtain business, and in dealing with clients and public officials, they encounter considerable pressure to violate ethical and professional norms, and little support to resist these pressures. {xi}

(3) The organization of the profession has profound implications for the administration of justice. As I concluded in my New York study, the caste-like structure of the metropolitan bar—with the large-firm elite for the most part insulated from ethically contaminating influences, while those at the bottom of the status ladder are forced to bear the brunt of such influences—tends to weaken the quality and authority of the legal order, particularly at the lower levels of the administration of justice. Whatever corrupt tendencies are exhibited by lower-level courts and agencies are unlikely to be countered by the lawyers who practice before them. Those attorneys who are capable of resisting such pressures rarely appear before these agencies (Carlin, 1966, p. 177). This caste structure also reinforces class differences in the availability and quality of legal services and the development of the law, resulting in a class system of justice.

What I had uncovered in these studies was seen as a matter of grave concern at least by some members of the bar. A lawyer writing for the American Bar Association journal described Lawyers on Their Own as a devastating study, report and analysis. A leading San Francisco personal injury lawyer wrote in the Los Angeles Times: A look at the other side of the legal tracks.... A book laymen should read, law professors will read, and every law student must read. Bar associations should do something about this unpretty picture if they are to justify the existence of individual lawyers. There was an obvious need for basic structural reform, but unfortunately there was also a lack of leadership and an unwillingness of bar leaders to accept responsibility for seeking reform, reflecting in part the isolation of the elite from the rank and file members of the bar and from lower reaches of the administration of justice (Carlin, 1966, p. 181). Little has {xii} been done to improve the situation. If anything, as we shall see, things have probably gotten worse.

After completing these studies, I was moved to examine more closely the lack of legal services available to the lower-income groups in our society. This further research was carried out at the Center for the Study of Law and Society at the University of California, Berkeley. In New York City, for example, in the 1960s less than 5% of the lawyers had clients in the lower half of the population in terms of income (Carlin, 1966, p. 178). It appeared, however, that the poor no less than the rich had legal problems, and indeed were more likely than the rich to suffer injustices resulting from the operation of our economic and governmental systems (Carlin, Howard and Messinger, 1967, p. 77; see also Carlin and Howard, 1965). Feeling the need for action, and given the opportunity that opened with the new Federal poverty program, I then helped to establish and became the first head of a federally funded poverty law program in San Francisco. We sought to bring not just routine but more significant services with some social impact to the poor community. We did have some success, but probably little effect in the long run (see Carlin, 1970). Unfortunately, what government support was then available was later reduced and then drastically cut back.

Now 35 years after these initial studies in Chicago and New York, what are the differences, what changes have taken place in the legal profession—is there a different report to the bar and the public?

Let us now consider what the recent studies and other available data reveal. Clearly there have been major changes. There has been a dramatic increase in the number of lawyers, which now exceeds 800,000. The number of women in the law has increased significantly, and there have been important ethnic shifts. There has been an extraordinary growth in {xiii} the size and income of large law firms, and major shifts in their internal organization. But remarkably enough, relatively little of significance has apparently changed for individual practitioners.

Over the past 30 years the number of lawyers in the United States has tripled, far exceeding the rate of growth of the overall population (Curran, 1986, p. 20). Since 1970 the ratio of lawyers to the general population has more than doubled and the profession has grown more than 4 times as fast as the entire work force. The United States may now, according to some statistics, have 3 times as many lawyers per capita as any other advanced industrial society (Sander and Williams, 1989, pp. 432-33). It should be noted, however, that more demands are made on lawyers in this country than elsewhere, given the greater fragmentation of our government and our decentralized legal regime (Galanter, 1993, p. 39; and see Friedman, 1985).

THE LARGE FIRMS

Let us look first at what has