On Becoming A Solo Criminal Defense Attorney Right Out of Law School

by Jamison Koehler on August 4, 2010
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A couple of days ago I was contacted by a colleague here in town on a criminal case she had just taken on. My colleague set up her own firm right out of law school, and this is the first criminal matter she has ever handled.

My colleague is smart and went to a good law school.  She has reached out to me and to other criminal defense lawyers in the area.  She has been sitting in at D.C. Superior Court, and she is working her butt off on a straightforward misdemeanor case. In other words, there should be no question but that her client will be well-represented. And, I should add, she was completely upfront with the client about her lack of experience.  The client understands why her representation is costing him so little.

But it did lead me to wonder to what extent it makes sense to go into criminal law as a solo practitioner right out of law school.

Mark Bennett looked at this question a couple of months ago in a blog entry he did entitled “Actually, There Are Stupid Questions.”  He wrote that he now regrets the advice he has been giving to young lawyers and soon-to-be lawyers over the last decade or so that, with “hard work, intelligence, and humility,” they could “do well without hurting anyone.”

Bennett said that he had come to this conclusion in large part after reading a series of “inane questions” posted by “youngish lawyers” on a number of listservs he follows: “If a lawyer has so little understanding of the rules that she needs to go online to ask other lawyers if her client really must chat with the cop who is investigating him for murder, what life-threatening mistakes has she made because she didn’t realize there was even an issue.  I cringe to think that anyone asking these questions might have based her decision to hang a shingle even in part on my encouragement.”

As I understand it, Bennett himself went into solo practice as a criminal defense lawyer right out of law school, and I can’t help but think his conclusion is based more on a frustration with the laziness of many new lawyers than any firm belief on the practical impossibility of doing it — and doing it right. This goes back to his orginal advice on making it work:  hardwork, intelligence, and humility.

Ideally, everyone could begin as a prosecutor or public defender or as an apprentice to a senior criminal defense attorney. I spent three years as a public defender in Philadelphia where I was trained, supervised, monitored, and evaluated. If my supervisors ever concluded that I didn’t make the grade, I would have been out on my ass.  We had weekly and then monthly training courses, and access to investigators, social workers, probation workers, and file clerks.  Members of the appeals unit alerted us to new cases.  If you ever had a question, you could walk into the office next door or out into the court hallway to find another public defender who might have the answer.  There were parties and happy hours; a social network to support you.

And even then it was sometimes very difficult.  Many PDs burn out.  Our office of over 250 lawyers averaged about one burnout a year when I was there – someone breaking down in court or simply packing up belongings and leaving without saying a word to anyone.

Yes, it is clearly much more difficult to do this right out of law school without any type of support network.  I don’t know that I could have done it.  It’s lonely.  You feel like an idiot.  Everything takes four or five times as long to do as it should.  At the same time, at least for the right type of person, I can’t help but believe that it can be done.

First of all, assuming some basic knowledge from law school of criminal law, criminal procedure, evidence and trial advocacy, there are many reference sources you can use to begin to familiarize yourself with what you will need to know.

In D.C., for example, the Public Defender Service (PDS) puts together the Criminal Practice Manual, a two-volume set of materials providing the basics of everything you will need to know on D.C. practice related to pre-trial release, investigations, preliminary hearings, discovery, sentencing, etc.  I read through this material cover-to-cover before I even came to D.C. PDS also hosts numerous training sessions throughout the year that private attorneys can take advantage of.  So does the D.C. Bar.

Second of all, you can take advantage of numerous listservs and databases that are available to criminal defense attorneys.  For example, I am a member of three listservs:  the ABA listserv Solosez for solo practitioners, the D.C. Superior Court Trial Lawyers Association, and the National Association of Criminal Defense Lawyers listserv for DUI.

Bennett is rightfully skeptical of people relying too heavily on listservs for practical advice.  At the same time, the listservs can provide a good starting off point for many questions. Advice can be cross-checked. Sample letters, motions and other materials available through shared databases should be used not through cut-and-paste but, again, as starting off points.  While there is no quality assurance for what you will find there, they give you an idea of what at least one other lawyer has done.  You will still need to check the statutes and the cases and do your own quality control.  You will still need to write your own motion or letter.

Third, there are many experienced criminal defense attorneys who will be more than willing to spend time with you to answer your questions. Since I don’t want to impose too much of a burden on any one lawyer, I spread out my questions among a host of different attorneys I have met in D.C.  I also go to the lawyer’s lounge at D.C. Superior Court every time I have a question.  There is always someone there willing to spend some time with me. An added benefit is the friends I have made.

Fourth, as my colleague with the new criminal case is doing, you can learn court procedure by sitting in on court.  (Beware that it is sometimes hard to keep a low profile.  If you are dressed up and look lawyerly, the judge and court keep checking with you to see if you have a case in the room that needs to be handled.)  You can watch a show-cause or probation hearing, a preliminary hearing, a suppression motion, and, if you’re lucky, a good jury trial.  You learn the procedures and jargon specific to the jurisdiction.

Fourth, start small.  While Bennett’s example of the stupid listserv question had to do with murder, it is hard to believe that there are many people charged with a serious crime who would hire a brand new lawyer out of law school.  Begin with minor misdemeanor drug, theft and other charges where the stakes are not so high.

Fifth, manage your case load.  Don’t take on more than you can handle.  Again, assume everything will take you far longer than you expect it to.  The notion that you can do a few criminal cases while you get your real practice up and operating is ridiculous and irresponsible.

Sixth, manage your expectations and keep your overhead low.  In a comment to Bennett’s entry, Matt Brown of Chandler Criminal Defense estimates that a new criminal defense attorney can expect to make less than $35,000 during the first year of practice, at least if he or she is committed to doing a good job by not overextending him/herself.  It takes a while to figure things out.  It also takes a while to develop contacts, reputation, and a steady stream of referrals.

Finally, suck in your gut, leave your ego at the door, and work your butt off.  As Grey Tesh commented, the ability to succeed may have more to do with the lawyer him/herself than the level of experience: “It’s not just a new lawyer problem – or a lazy lawyer problem (it can be a combination of both) but it also can be just a plain old stupid problem.  You can’t cure stupid.”

The flipside of this, presumably, is that if you are not stupid, if you are willing to put in the hours, if you are absolutely committed to representing criminal defendants, and if you can afford to get by with very little income in the early years, you might just be able to make it work.  Again, I am not saying that I could have done it right out of law school.  I am just saying, using Bennett as the prime example, that it can be done.

More like this:

On the True Value of a Law Degree

Advice to an Incoming IL:  Humble Yourself Before the Law

Law School After the Age of 40

No One Told You That Solo Practice Was Going To Be Like This

My Career As A County Prosecutor

13 Comments on “On Becoming A Solo Criminal Defense Attorney Right Out of Law School

  1. Good post. Although I was a licensed attorney for 2 years, one day I showed up in criminal court from out of no where. But I did a lot of the things you mention here, such as just sitting in criminal court and watching. I also sought out advice from seasoned attorneys and read the best Illinois treatises around. I also started small, handling mostly misdemeanors.

    I watched several jury trials before I did my own. Same with motion hearings. I was also not shy about admitting my lack of experience when asking questions. I found everyone under the sun from clerk to deputy to judge to prosecutor was more than happy to help me if I was unsure about what was going on.

    As you can imagine criminal courts in Chicago move at light speed. With some determination and willingness to ask for help, it can be done.

  2. Mr. Schantz: Good to have you commenting on this site, particularly as someone who can speak from direct experience. I am also impressed that you are doing murder trials after only two years.

  3. This is an excellent piece, Jamison. I agree you have to be careful with what some may consider ‘stupid questions’ on a listserv. But I’ve also always learned there are no stupid questions, just stupid answers. I’m not sure this goes to the heart of the bigger issue of whether one is ready to practice criminal law (or any law) right out of law school. As you noted, it is about the reality of what cases one actually gets right out of law school and how intelligent they are to seek out mentors, good guidance, co-counsel and put in the work which includes sitting in that court room. No better educational environment out there.

  4. Goodness. I shouldn’t want to sound so much like a star-struck teenager, but it is an honor to have Susan Cartier Liebel of Solo Practice University on this site. I feel like I did the first time I met Carolyn Elefant. (I also humiliated myself by asking her to sign a copy of her book.)

    I really shouldn’t speak for Mark Bennett who raised the listserv questions in connection with solo practitioners coming directly out of law school, but I think he was expressing a general frustration with the level of laziness he has perceived among many new lawyers. I also think he would agree, as you suggest, that it is not impossible; it just depends on the right person doing it.

  5. And occasionally even smart people asking stupid questions. At least that’s my excuse.

  6. Another tip for law students who want to practice criminal law: keep Court TV on constantly. When I was in law school, I got a ton out of doing this. I really enjoyed watching the trials of the day – like the William Kennedy Smith rape trial, and the Menendez murder trial. When I first had a case against Menendez defense attorney Leslie Abramson almost 15 years later, I felt almost starstruck. I almost asked her to autograph my belly. But I played it cool.

  7. Asking for an autograph on your hand=cool. On your belly=uncool. As proof of exactly how uncool I am, I was impressed when I started working as a colleague with some of the senior public defenders I had observed in the courtroom as a law student. I was surprised that they had a sense of humor – they were always so serious, so professional, in court. And, surprise, surprise, they didn’t know everything.

  8. I may be asking one of those stupid questions: Why is my husband’s Public Defender from his preliminary hearing NOT going to be representing him at trial? I was by her that the date was continued to trial and the judge will be offering him the same deal as he did at the preliminary hearing? In her next breathe, she told me she would not be the PD at his next court date? Why? Is this normal prcedure…different PDs for preliminary hearings, trials, etc?

  9. Jamie:

    You don’t say where you are from, but it would depend on whether the public defender’s office in question uses a vertical or horizontal system of representation. In a vertical system, the defenders are assigned to specific clients so that the same defender would represent your husband throughout the process. In the horizontal system, such as in Philadelphia, the defenders are assigned to specific courtrooms. Your husband will be represented by whomever happens to be in that room that day.

    I have never heard anyone say they believe the horizontal system is better than the vertical system. In Philadelphia, they do it that way because of the heavy caseload. It is just more efficient that way.

    The one thing I would occasionally tell clients who complained about that was: At least you will have a number of different lawyers looking at your case. One lawyer might see something that another one missed.

  10. I am a 3L graduating in May and I wanted to thank you for the above discussion. It is without saying that the legal economy is terrible for new attorneys and prospects for full time employment are bleak. From a student perspective, I am surprised by the lack of motivation current student’s possess. It seems as though student’s are more willing to ditch and run from the legal market due to lack of available jobs than continue to invest in themselves and start their own firm. After three years and a hundred thousand dollars later, some students would rather go be a bar tender and wait for the job market to recover instead of creating a job for themselves!

    I would like to hear some thoughts on participating in criminal contract work while starting to build your own firm. Pros? Cons? Will experienced attorneys hire new attorneys for contract work? By contract work, I do not mean document review- I mean taking on some sort of county court or municipal case.

    I appreciate your thoughts.


  11. Brian: Criminal defense lawyers I know who need help tend to take on associates who are formally affiliated with the firm. As I understand the arrangement, the associate will represent clients he/she brings in, in addition to overflow from the principal. All the lawyers can then cover for each other.

    I imagine that the type of arrangement you suggest — contract work — could offer some benefits for the solo practitioner. It might, for example, keep overhead low and offer greater flexibility for dealing with the ebbs and flows of private practice.

    My major concern would have to do with quality control. After all, service to client and reputation are everything. At the same time, you face this issue any time you bring on someone new. I don’t know why this would be any different with a contract employee as opposed to formal associate.

  12. Show of hands: how many baby criminal-defense lawyers think they aren’t practicing with “hard work, intelligence, and humility”?

    See the problem?

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