Sole practitioners, boutiques and behaviour
Lawyers Weekly is oft-accused of ‘picking on the little guy’ as it publishes stories on tribunal judgments of conduct contrary to one’s professional obligations. More often than not, these relate to sole practitioners or those in boutique practices. Instead, we as a profession should be asking: why is it that lawyers in these environments find themselves before the respective tribunals and regulators more so than their BigLaw counterparts?
In examining this question, it was first necessary to ensure that it is in fact lawyers who operate as sole practitioners or in boutique firms are indeed subject to a greater number of complaints and disciplinary findings than those in SME or BigLaw environments.
Extrapolating from various annual reports from state and territory legal services commissions or law societies around Australia, it appears that these lawyers do indeed account for an overwhelming majority of complaints and proceedings.
The Queensland Legal Services Commission annual report for 2017–18 identified that of the solicitors who were subject to investigations, 50.94 per cent were sole practitioners. When broken down by law firm size, 34.43 per cent of complaints were made against firms with one practising certificate holder, 28.77 came from firms with two or three lawyers, and 18.87 per cent from firms with four to six lawyers. That amounts to over 80 per cent of complaints made against either sole practitioners or lawyers in boutique firms.
Interestingly, complaints – and, in some cases, subsequent disciplinary proceedings – against those not in larger firm environments do not appear to include barristers.
The Victorian Legal Services Board + Commissioner annual report for 2017–18 outlined that of the total 1,587 new complaint files opened, only 5.2 per cent (88) pertained to barristers, with 94.8 per cent against solicitors. The NSW Legal Services commissioner noted similar numbers: of the 2,645 complaints received, only 101 – or 3.8 per cent – were about those at the bar.
While other states and territories – for example, South Australia and Western Australia – haven’t yet published their latest annual reports online, the above data evinces an impression that there are particular factors – environmental, professional, financial – that give rise to conduct that is contrary to one’s legal professional duties and obligations.
To better understand how and why sole practitioners and those in boutiques are disproportionately the subject of complaints and proceedings, Lawyers Weekly spoke with a handful of lawyers in the space about day-to-day challenges.
Adelaide-based ABC Lawyers head of legal Despina Anagnostou summed it up succinctly: “As a sole practitioner, you’re everything”.
“You’re the lawyer, which is important. But you’re also the big picture business strategist, and the details-oriented systems person, and the creative marketing person too. Even when you’re outsourcing some of these roles – say, web design – or enlisting the support of someone like a business coach, you still need to put your head in that space that occupies each of those roles, and each of those roles requires a different kind of thinking,” she explained.
Stoddart Legal director Sarah Stoddart agreed, saying “the role of a sole practitioner or lawyer in a boutique firm is all-encompassing”.
“Sometimes you feel as though no facet of the business is under control. The need to be actively across all aspects of the firm can be an onerous and time-consuming. It also means having to shift your mind to focus on various tasks throughout the day and often in between client demands. That obviously carries risk,” the Brisbane lawyer said.
The contrast to bigger practices is stark, CJ Legal principal solicitor Clare Jobson – also from Adelaide – outlines, positing that there is more support in larger firms and, often, employed solicitors are left to meet targets and caseloads while admin support assist with the background regulatory obligations.
“In sole practice firms, where there is little to no administrative support, it becomes very difficult for a practitioner to juggle everything that they need to get done to comply with regulatory time frames and legislative requirements in addition to the competing priorities within their own case load,” she said.
Nola Pearce, a barrister and former chair of the Queensland Law Society’s Ethics Committee, posits there are two high-risk factors: first, the likelihood of small practices to focus on what has been identified “by various sources” as the practice areas which represent a “high-risk for client dissatisfaction leading to complaint”: family law, conveyancing, succession, to name a few.
Second, for sole practitioners or the principals of boutique firms, it can be difficult to appropriately debrief in a difficult matter or even bounce ideas, “ask a dumb question or be open to criticism” within the firm structure.
“This isolation – whether real, perceived, or created – can be in stark contrast to the big firm environment where there are so many circles and levels of interaction that it can be easier to find a safe sounding board (including the statistical likelihood that someone has faced a similar issue previously) without feeling exposed,” Ms Pearce said.
“In my experience, this also extends to members of the private bar who are not in chamber groups and can consequently just keep digging themselves into a hole in remote or ‘home’ chambers, without the benefit of trusted chamber colleagues to ‘sanity check’ an argument or idea.”
Such challenges take their toll on practitioners. VM Family Law and Adieu Legal principal and practice director Katherine Manby, from Brisbane, said “[the challenges] impact you in every way”.
“I know I have gone through periods of emotional exhaustion, financial exhaustion and these often then blend into your personal and family life. For me, particularly being a mum to two small children, I spend much of my time feeling guilty that I am not there to put them to bed or pick them up from school,” she reflected.
“I am trying to create a better life for them, but they don’t understand that, and I am sure right now would prefer to have me around. I think all of these stressors need to be handled well by the practitioner or there could be a massive burn out, which may lead to the problems associated with being struck off.”
Solicitors are, by nature, overachievers and perfectionists, Ms Jobson said, and when producing anything less than perfect “we view ourselves as failures, which attacks not only our professional persona, but us as individuals”.
“I think it is ingrained in human nature generally when the going gets tough for a person (whether by drug/alcohol/mental illness or separation etc.) is to adopt the ostrich in the sand position when it comes to our own issues,” she said.
“When practitioners are in sole practice, the practice becomes an extension of themselves and by doing so, receives the same ostrich in the sand treatment. It becomes hard for those who wind up in trouble to separate the practice from themselves.”
The skillset needed to succeed in boutique practice or as a sole practitioner is not taught at university and is in fact, often self-taught. Ms Stoddart remarked that this is perhaps “the start of the downhill slide for some practitioners”, if they don’t have the business skills or resources to manage finances, staff, compliance and other business requirements.
“Consequently, some practitioners become overwhelmed or perhaps tempted. From a financial perspective, there is a very delicate balance between doing work in the business and doing work on the business. Of course, if one outweighs the other, it can have financial consequences.”
“Personally and emotionally, the biggest issue is time management and self-awareness. From what I have seen, a lot of sole practitioners do their work ‘on the business’ outside of hours which can result in exhaustion, lack of self-care and have a negative impact on relationships,” she said.
The impacts are such that a “snowball effect can emerge”, whereby a lawyer has done his or her honest best for a difficult client or in a difficult matter, is exhausted, yet has a client unhappy with the result for reasons which may have nothing to do with the legal services they received, she hypothesised.
“So, the lawyer also may not have been paid, trying to juggle the pressures of running a business with professional obligations and perhaps a home life as well...and suddenly it is all overwhelming and either that matter results in a complaint, or alternatively that exhausted state creates an opportunity for a mistake in another matter or bad decisions such as the temptation to ‘borrow’ from the trust account.”
Better practice management
There are, undoubtedly, significant challenges that come with working alone or in a small unit, and certainly with the prospect of running one’s own business in addition to day-to-day legal work. Said challenges will be onerous for even the best practitioners.
However, as disciplinary proceedings in the various state and territory civil and administrative tribunals have demonstrated, the potential consequences for misconduct or breaches of one’s professional duties can be deleterious to one’s standing as a lawyer at best, and at worst, one’s professional livelihood can be taken away by way of a revocation of a practising certificate. Fines and reprimands are also common.
In avoiding such pitfalls, Adelaide-based sole family practitioner Judith Jordan said lawyers should do the following: “Set clear time frames and limits for yourself, ensure that your clients understand that you will not be answering emails and phone calls or seeing them outside of hours, unless it is a genuine emergency, ensure that you have fellow sole practitioners with whom you have regular debriefs, be involved in your local professional body, attend conferences in your area of law, do not be afraid to tell a client you need to do some more research, [and] ensure you have at least one barrister who practices in your jurisdiction who is willing to be a sounding board for you”.
Ms Anagnostou said mentoring has been hugely beneficial for her own practice management.
“I find the whole mentoring experience, both through my former law school and with law clerks that I have had in my own office to be absolutely energising. I really think that more sole practitioners should become involved in mentoring new lawyers; it’s a fast track to learning where it’s all at in many ways, while giving you a chance to induct new practitioners into some of the protocols of legal practice,” she explained.
It is also helpful, she continued, to work among other small businesses.
At the centre of legal practice are the people who seek our services and who are affected by our work either directly or indirectly, and so it’s crucial that we interact with the community that we work in; it helps us to stay current on a social and political level, for example; the law isn’t practiced in a vaccum,” Ms Anagnostou noted.
“I tend to get to know almost everyone who I see on a regular basis, be they at the gym or at a coffee shop. When you’re working alone, as I sometimes am, I think that these relationships, however casual, help to anchor us in the community. And really I believe that I’m a better lawyer for it.”
Ms Stoddart brought things back to basics, identifying letter writing as a necessary strategy.
“Write down your tasks and assign a priority level to each task. What needs to be done that day, that week, that month? Work through the tasks in that order. Work out how you learn and what works best for you,” she advised.
“Some people have everything in their phone, others draw pictures or stick post it notes in their office. I still use pen and paper. Everyone is different but everyone should work out what it is that helps them to de-clutter their mind and find space to focus.”
And, Ms Pearce added, self-care is “absolutely crucial”.
“The overwhelming majority of practitioners who run afoul of their professional obligations are very good people who have become exhausted and unwell. The profession of law is demanding, and you can’t pour from an empty cup, so you need to take care of yourself.”
Ms Stoddart agreed: “Sole practitioners and those in boutique firms must remember they are human and not robots. It is essential to rest and nurture the body.
How one handles such challenges, Ms Anagnostou said, “could mean the difference between a thriving practice that kicks goals on every front, and a stressed lawyer who feels like they are always working”.
Community and professional support
Perhaps the most important solution to one’s professional toils – that has the added benefit of improving one’s personal wellbeing, the interviewees agree – is having a strong, engaged community around one’s self.
Having like-minded colleagues to mingle and collaborate with does not, of course, offer a blanket remedy to the dangers of conduct unbecoming a practising solicitor. But it appears that having community and day-to-day interaction is paramount in allowing perspective on life as a lawyer and gives access to advice and assistance that may otherwise not be readily available.
Ms Manby said she has a “tribe that I constantly refer to and run ideas through”.
“Without this I would struggle in my small practice. Having others, in a similar position, to share ideas and fears with is hugely beneficial. The other key is to keep learning and listening. Don’t stop. Things constantly change and you have to be aware of this at all times,” she explained.
Such support networks make a huge difference, Ms Jobson said in support, as she has found with Facebook-hosted discussion groups.
“I think it is important to be aware of your own triggers [or] strengths and weaknesses. Some people find it very hard to reach out and ask for help, or are so engulfed by their problems, don’t know how to tap into their usual logical thought process to ask for the help required.”
Being actively involved in professional activities is also crucial, Ms Jordan added.
“It is important to ensure that you attend the opportunity of legal education beyond what your state professional body may mandate in terms of continuing legal education points, to ensure that not only are you cutting edge in the advice and representation that you can give, but that you have an opportunity to expand your horizons and maintain your professional interest in what you do,” she espoused.
Ms Pearce agreed with this, noting that engaging with professional bodies allows one to seek out a broad range of assistance available.
“Many (if not all) law societies and bar associations have ethical advice centres, senior counsellors, and LawCare/BarCare services who are there to help lawyers deal with any issue that is impacting their ability to practise. This can range from what to do next on a difficult file, to receipt of a complaint from a client or professional body, to having a sick child/spouse/pet which impacts mental wellbeing, or substance abuse,” she explained.
“Anything which stands in the way of a lawyer doing their best can lead to an ethical issue – so make that first call and ask for help.”
Ultimately, sole practitioners should not dismiss opportunities to connect with others, Ms Stoddart warned.
“Finding your tribe will take time but when found, the rewards and benefits are so valuable. We are not meant to walk the journey of law alone. The role of a lawyer can be very isolated and insulated,” she said.
“Connecting with others, sharing ideas and concerns is powerful and provides support that sole practitioners and lawyers in boutique firms may not otherwise have.”
And, as Ms Anagnostou pointed out, community is also paramount as isolation makes one “more susceptible to making professional mistakes”.
While no doubt rewarding in a multitude of ways, life as a sole practitioner or as a lawyer in a boutique firm brings with it many challenges as well, including financial, environmental and social. And without wanting to excuse or justify conduct resulting in professional complaints and/or disciplinary proceedings, it is clear that lawyers working in this space have a certain empathy and understanding for how and why some practitioners may run afoul of their professional obligations, as evidenced by statistics from across the country.
Any sole practitioner or boutique lawyer who encounters such professional struggles giving rise to particular conduct should, the interviewees asserted, seek help as soon as a problem becomes apparent.
“Early assistance would be far better than burying your head in the sand allowing the problem to get bigger and therefore worse for you,” Ms Manby warned.
“Admit that you may have made an error or that you have. Seek advice from the ethics and practice section of your Law Society and/or a Barrister as soon as possible and address the issue,” Ms Jordan suggested, in support.
“It is not going to get any better if you ignore it and let it go on. Sometimes, you can think you have made an error and it turns out you have not, so getting help quickly and advice can often save a good deal of unnecessary stress. I find that as sole practitioners, we are our own harshest critics.”
With so many of Australia’s solicitors operating either as sole practitioners or in boutique firms, it is of fundamental importance to the upholding of the rule of law, and the protection of clients’ interests, that those operating in such professional environments ensure their duties and obligations are upheld – especially in light of an apparent movement towards such working arrangements, for reasons of flexibility, autonomy or business acumen.
No one, least of all Lawyers Weekly, takes pleasure in learning of consequences being handed down to practitioners for professional misconduct or other such charges. A better understanding of idiosyncratic professional challenges, better practice management and increased engagement of one’s community can, however, help a practitioner be better placed to ensure not only their personal standing and wellbeing, but also uphold their professional duties and obligations.