In order to be an air conditioning or refrigeration contractor in the state of Texas, one must have 48 months (approximately 8,000 hours) of practical experience. See Tex. Occ. Code § 1302.255. A residential wireman must have 4,000 hours of on-the-job training, while journeymen electricians must have 8,000 hours of on-the-job training. See Tex. Occ. Code §§ 1305.155, 1305.157. A professional drain cleaner must have 4,000 hours of work supervised by a master plumber before he or she can be licensed. See Tex. Occ. Code § 1301.002(2)(A).
Attorneys require a grand total of zero practical hours before they may practice law in Texas.
This is not, of course, news to any attorneys who have been admitted to practice in Texas or any other state. In its near-300-year history, the American legal education system has never formalized practical training for new attorneys. There are many reasons why apprenticeships, residencies, or simple observation by more experienced attorneys have not been formal requirements for certification to practice law. Some of these reasons may even be valid. The end result of this laissez-faire system is that employers and clients hire “baby” attorneys who have little to no ability to practice law. While law firms and in-house legal departments realize the limitations of new lawyers, the public typically does not. Ordinary citizens will see a law degree and license on the wall of a newly minted attorney and assume that the attorney is fully capable of handling the legal matter that he or she has been entrusted to handle. This leaves the public to purchase unknowingly inexperienced legal advice, while terrified new lawyers desperately try to avoid committing malpractice.
If you’ve already passed the rough first few years of practice, you might think that this problem doesn’t affect you. It does. Consider the many financial losses a law firm can incur when its new attorneys make mistakes:
As many law firms learn the hard way, an employer is liable for the negligence of new attorneys.
An ethics complaint to the bar, a civil suit for professional negligence, or even a simple demand letter cost an employer unnecessary time and expense. Even if the complaint or lawsuit is not ultimately sustained, it still costs a firm money to fight it. And, of course, any malpractice claims that are paid out by a professional liability insurance carrier can result in increased insurance premiums.
Ames & Gough, an insurance broker, recently released a survey of its 2017 data on legal malpractice claims. In general, the frequency of claims was found to be similar to prior years, but the severity of claims had increased. Five of the nine leading malpractice insurance carriers reported claims of $50 million or more. This included a claim over $100 million and another claim over $150 million. Law.com reports that the cost of defending a malpractice claim is also increasing. This, of course, is a cost that insurers will inevitably pass on to their insured via increased premiums.
Malpractice claims are not only bad for claimants but for all malpractice insurance subscribers as well.
One familiar axiom of business is that a disgruntled customer will spread far more dissatisfied word-of-mouth than a satisfied one. Inexperienced attorneys with no support system are not likely to deliver a satisfactory experience to their clients. Disgruntled clients will tell others about their negative experience at your firm. And, as every attorney learns in law school, the goodwill of a business is a real asset with cognizable value. Dissatisfied clients will also lead to a decrease in repeat customers and referrals, which are a significant source of revenue for many attorneys and firms.
Employees who do not receive sufficient training, supervision, or support will not continue to work for your business. The hiring and training of new employees is not cheap. One longitudinal review performed by the Center for American Progress reviewed 11 studies performed over a 15-year period and found that the cost of replacing a highly skilled employee was an average of 213 percent of the cost of one year’s compensation in that position. (Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Center For American Progress, Nov. 16, 2012, https://www.americanprogress.org/wp-content/uploads/2012/11/CostofTurnover.pdf.)
Businesses Can Recoup a Return on Investment for the Supervision of New Attorneys
Attorneys live their lives in six-minute increments. With so much pressure to meet billing quotas and monthly revenue goals, it can be easy to choose one hour of billable research over one hour of monitoring a new attorney in court. But effective business strategies must evaluate both the short- and long-term costs that impair profitability. One hour of court observation may save a business thousands of dollars in hiring costs if it prevents the attorney from quitting. It may also enable a new attorney to bill hundreds of hours and bring thousands of dollars in revenue to the firm. Consider these long-term financial effects before writing off supervision as an unrecoverable cost for your business.
What Employers Can Do to Supervise New Attorneys
Even without a formalized training program by state or local bar organizations, employers can put practices into place to reduce liability and the employee turnover rate. Here are some simple practices with a big impact:
A designated “question person.” Like it or not, a new associate is going to have questions. It is important that someone is responsible for answering these questions on a daily basis. Many young associates are forced to spend copious amounts of time looking up incredibly basic information. His or her employers would rather waste the new associate’s time than invest a short amount of a senior attorney’s time to teach the attorney how to do it right. As an aside, that investment would also reduce the chance of malpractice. The Farmington Daily Times reported on a “fairly new” attorney who was sanctioned by the State Bar of New Mexico for not consulting with other attorneys in the field. She later faced a civil lawsuit for malpractice, as well. (Joshua Kellogg, Farmington attorney faces legal malpractice lawsuit, Farmington Daily Times (July 23, 2018), https://www.daily-times.com/story/news/local/farmington/2018/07/23/farmington-attorney-shannon-pettus-accused-legal-malpractice/811226002/.)
For very new attorneys, paralegals may be able to answer basic questions about which forms must be filed with the local court, how to fill out preprinted court forms, etc. Firms will want to be careful about the extent of training paralegals are providing new attorneys. Tasks that only a licensed attorney can perform should only be taught by a licensed attorney. Nonetheless, allowing a paralegal to share his or her vast knowledge can significantly reduce the costs of new associate training.
Reconsider your billing requirement structure. Attorneys are protective of not only their time but also that of their support staff. This is understandable. With stringent requirements for hourly billing and departmental income, it can seem pointless for a senior attorney to spend time with a new attorney. It does not provide an immediate benefit to the senior attorney. This is exactly the problem: if billing structures encourage each attorney to prioritize his or her own needs over those of the firm as a whole, the firm will suffer. There are many ways to encourage a change of priorities. Consider giving more senior attorneys an “allotment” of supervision hours in lieu of billed hours. For example: instead of requiring 150 billable hours per month, the firm would require the attorney to bill 140 hours and record at least 10 hours of training a new attorney. Larger firms may have the resources to hire a full-time, designated training attorney with no billable hour requirements. Different structures can be adapted to the specific needs of a particular firm.
It is also important to consider the firm’s billing structure for the new associates. A new attorney who has to both teach him- or herself the law and meet billable hour requirements is headed for disaster. Associates should be slowly introduced to the practice of law and the billing/profitability requirements of the firm. Consider documenting the new associate’s profitability under his or her supervisor’s department for a time. This will encourage the supervisor to help the new attorney be productive and profitable. Alternatively, it may be helpful to incrementally introduce the new associate to the firm’s billing requirements. There are different ways to accomplish this: the associate may first be tasked with achieving goals for monthly billable hours, and later introduced to goals for profitability or recovery of accounts receivable. Alternatively, the associate may be given initial goals which are below those of more senior attorneys. Over the course of six months or a year, the goals can be incrementally increased to match those of other attorneys.
Make someone accountable for new associate training. Speaking of the firm’s needs as a whole, it is important to designate a person who is accountable for an associate’s overall training. If the firm is exposed to liability, or an associate’s inexperience upsets a client to the point of devaluing business goodwill, the firm will suffer. There must be oversight in the system. In addition to a person who can answer day-to-day questions about managing active cases, it is important that someone be accountable to the firm for protecting its assets.
Be honest about why new associates are struggling. No one likes criticism. It can be wounding to honestly explore the ways in which a firm has lost clients, incurred malpractice liability, or simply let down a new associate. But the only way to prevent these losses in the future is to learn why they happened. Was the new associate simply “not a good fit for the firm” or were there ways in which the firm could have offered more support? Was the client angry because of his or her own unrealistic expectations, or did she genuinely receive substandard legal services from an inexperienced new attorney? Was the malpractice suit entirely the new associate’s fault, or were there points at which the firm could have supervised the work and caught the mistake? There will be few—if any—circumstances in which there is absolutely nothing the firm could have done to mitigate its losses.
Looking to the Future
There is no magic wand to fix the problems of new associate training. But it is important that the legal community start an honest dialogue about the very real problems faced by new attorneys. Each of us has a little corner of the legal world in our own practice of the law. We have the choice to enact small changes in our practices that will better serve the public, the community, the profession, the client, and ourselves. Choose. Enact them. Treat the system better than it treated you as a new attorney. Your practice will be better for it, your clients will be happier, your associates will be more successful, and ultimately, the financial rewards will follow.
Pamela N. Sandberg is an attorney licensed to practice in Arizona and California. She has worked in law firms across the United States and uses this experience as a freelance legal writer and legal business consultant. Visit sandberglegalconsoluting.com to learn more about Sandberg and the services she offers.