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New Lawyers and their Transition into the Marketplace
by Thomas F. Liotti
Recently released census figures show that our nation’s documented population has grown to an astounding 281,000,000 people. In a recent edition of the New York Law Journal, the population figures were broken down by County and ratios of lawyers to population revealed the competitive nature of the legal profession.
In Nassau County, for example, there is one lawyer for every 135 people. In Manhattan, there is one lawyer for every 26 people. While the statistics may be somewhat misleading since most lawyers have their niche and not all lawyers compete for the same clientele, there is nonetheless a competition for new business in this millennium that began to surge in the 1970s with the influx of baby boomer lawyers into the profession.
More law schools have been accredited in the past thirty years and each year the number of lawyers coming into the market place far exceeds those that are retiring or dying. We have not seen the peak as yet. In fact, the allure of corporate law salaries and bonuses compares favorably with the benefits available in the competitive high tech industry which had substantial economic setbacks in 2000 as did the stock market in general.
The New York State Bar Association’s recently completed study of Public Trust and Confidence in the Legal Profession challenges all lawyers to boost the image of the profession. Yet for struggling new lawyers unable to find jobs, there are dangers in coming into the practice of law without ample training and experience. New lawyers who are desperate for income to pay off student loans or meet family obligations, are taking unprecedented risks by entering the practice of law without adequate practical training, resources and mentoring programs.
The lawyers most in need of help from the remainder of the profession are the new lawyers and those at the bottom end of the profession who are opening their own offices and catering to lower middle class and a low income clientele. These new lawyers often accept low retainers in return for enormous responsibilities and with little or no staff to adequately service their clients. The result is a tragedy where ambitious, competent lawyers often find their high entrepreneurial expectations derailed with disciplinary and other problems caused by their inability to adequately serve and represent their clients. The result is that consumers are then hurt because the legal profession has allowed these conditions to occur.
There are currently pending two (2) lawsuits that are attempting to address the shortfall of income for attorneys who represent the poor in criminal cases. But the problem is much greater than what has been addressed thus far. Moreover, it effects both civil and criminal lawyers. The profession has thus far provided an inadequate response in terms of addressing these problems.
The profession must deal with these issues because they are growing in their complexity each day, damaging the profession as a whole and also hurting the very clientele that need the services of competent lawyers.
This is more than a discussion of the quality of legal services provided to the rich and poor. It is a problem that inserts into that equation the new lawyers who are entering an already glutted, competitive marketplace and what they are doing to survive and co-exist with their more established and experienced colleagues. The ultimate question is, what will the profession do to rescue these new lawyers aside from letting them flounder. Some attorneys may feel that instead of developing a rescue plan that we should allow these new lawyers to destroy themselves thus weeding out those who are unable to compete. The problem with this scenario is that innocent consumers will be severely hurt along the way and the profession’s indifference to the problem will harm the image that lawyers are attempting to rekindle in the years since the profession was brought down in its stature by Watergate and its aftermath.
This article addresses a problem that has heretofore not been considered. What follows are the snippets of a transcript of an expert, who testified during a disciplinary proceeding involving a young lawyer. The lawyer’s name is not mentioned due to the confidential nature of the proceedings, but the expert is a renowned attorney, Willard DaSilva.
Mr. DaSilva has distilled the problems heretofore described. This is a synopsis of his testimony. What awaits us following this crystallization is the profession’s response. This article urges the Chief Judge and the New York State Bar Association to immediately establish a Commission to recommend ways to assist new lawyers in their transitions from law schools into private practice.
Q – What is your name?
A – Willard H. DaSilva.
Q – Please tell us something about your background and how you are presently employed.
A – I have been a practicing attorney for a little more than 50 years, and more than 30 years of that time, the most recent 30 years, I have dealt almost exclusively in the field of matrimonial and family law.
I have maintained an office originally as a single practitioner, and I then went into the corporate field, and about 35 years ago I went into a private practice basically as a single practitioner.
I have had partnerships, but they were small partnerships, one person or maybe two at a time. During the interlude between partnerships, I was a sole practitioner, so I would say at least half of my time was a sole practitioners, and then within some of the partnerships I functioned as a solo practitioner and did not deal jointly in cases with the other partners. I would say that my practice has predominantly been as a single practitioner in fact.
I have had opportunities to do extensive writing in the field. My works have been published in many legal journals and magazines. Recently just this year I was appointed as a member of the Board of Editors of the New York State Bar Journal, and I am presently and have been for the past couple of years Editor in Chief of the American Bar Association magazine, The Family Advocate, which deals exclusively in family law. I publish for Matthew Bender a monthly article, a series of articles on domestic relations law, and for the West Group, I have written an update annually for a book known as New York Matrimonial Practice. It is a red volume. Most lawyers in the field know it. They consider it a Bible, or at least beginning practitioners in the field of matrimonial law. I have written for many magazines, a fair share of magazines.
I have appeared as a consultant in many radio and television programs. I have appeared on the Donahue Show, Regis Philbin, Sonya Live, which is a CNN program, Ted Koppel, many of the well known shows, and many of the radio talk shows. In fact, I am scheduled in December to be on a radio show.
I have been on NBC Nightly News during the past year, all related to matrimonial issues and matrimonial practice. A complete resume of my background other than lecturing appears in Martindale Hubbel Law Dictionary and I do seminars regularly. I lecture four or five seminars a year at least.
When I was asked to renew my registration for the Bar and list my CLC credits, I think when I got to about 80 for this year, I stopped listing. I stopped making a note of it.
That basically is my background. In addition to all of that, I am extremely active in the matrimonial practice to this day.
Q – Have you ever been qualified previously?
A – Yes, several times.
Q – Would you tell us in what capacity you were qualified as an expert?
A – Basically regarding fee disputes, fee issues, reasonableness of fees.
Q – Mr. DaSilva, could you tell us something about your educational background?
A – I went to Freeport High School. I was born in Freeport. I went to New York University. I graduated from Washington Square College and then I served in the Army Air Corp. during World War II and came back and went to Columbia University, and I graduated from that school, and shortly thereafter I went into practice starting in Freeport, and then I moved from there to the City.
Q – Have you been involved in any Bar Association activities?
A – I am constantly involved in Bar Association activities. I have been . Nassau County Bar, I am on the Matrimonial Law Committee, an officer of that committee. I have been active in the New York State Bar Association. I was the chair of the General Practice Section. I am still on the Executive Board of the Family Law section of the New York State Bar, former President of the American Academy of Matrimonial Lawyers, the New York Chapter.
I am one of now less than 100 lawyers to be selected or nominated to be a diplomat of the American College of Family Trial Lawyers. It is a national organization with less than 100 of us. I belong to the International Association of Family Law, and you name it, many, many organizations. I am active in most of them.
Q – Are you familiar with a case known as O’Brien versus O’Brien?
A – I have heard of that case. I represented Dr. O’Brien and argued the case in both the Appellate Division and the Court of Appeals. I didn’t handle the trial.
Q – What was the holding in that case?
A – The holding of the case was that a medical license which was earned during the course of the marriage became marital property and subject to evaluation and division, at least its value was divided at the time of the divorce. That has become, I am told, the most often cited case in the history of New York law.
Q – Mr. DaSilva, if I may, I would like to turn your attention to your expertise in matrimonial law. You have indicated you have been qualified previously and you have testified previously in cases involving matrimonial law.
Could you describe just generally for us what the nature of your testimony as in those other matters?
A – Basically I was called upon to testify about a reasonable list of legal fees charged by an attorney in a matrimonial case that was predominantly the nature of my testimony that I had given the Courts before. The most recent one was before Judge Carter. That went up to the Appellate Division.
Q – What is matrimonial law exactly?
A – Well, there is a difference between matrimonial law and family law. Matrimonial law deals primarily with divorces, separations, dissolution of a marriage, separation of parties. Family law incorporates other issues also relating to the family which would include just plain support orders, juvenile delinquency problems, other things that the Family Court would handle that normally are not handled in the Supreme Court, so basically, I think it is matrimonial law is in the Supreme Court and family law matters are dealt with primarily in Family Court.
Q – Do these matters interrelate with each other, family law or Family Court matters with Supreme Court matters?
A – Yes.
Q – How so?
A – Well, if you are having a divorce, it is not uncommon that there be domestic violence in the household. It is not uncommon that children have problems, sometimes the problems stem from the marriage, sometimes the problems in the marriage stem from the children, so you have childrens problems that are intertwined with marital problems.
There are delinquency problems which relate to neglect and other issues that involve parents, so we are talking really about the parenting on the part of the husband and wife in addition tot he problems between the husband and wives themselves.
Q – How does the practice of matrimonial law differ from, let’s say, another field of law such as corporate law, for example?
A – I think the major difference would be the emotional factors involved. Sometimes when I am facetious, I say I practice commercial law in a family setting, because if you look at the core of most of the matrimonial cases, you are dealing with money and property.
A notable exception would be a genuine child custody case, but sometimes even they are created because of money factors, a custodial parent gets child support, so there is a fight over that.
But other than custody, you deal essentially with money, but that is clouded with an emotional factor, which makes it extremely difficult for clients to see what the real issues are, and it makes it extraordinarily difficult for the attorney to deal with the issues because you cannot focus on the true issues of the case. They are being buffered by the emotional factors, the phone calls, the letters, everything from your own client, and, as a matter of fact, it has been shown by studies that matrimonial lawyers suffer most emotionally, have the most problems in terms of drug abuse, alcohol abuse, other abuses, nervous breakdowns, more so than attorneys practicing in other fields. It is also true with judges who practice regularly in the matrimonial courts.
That is one reason why many judges don’t want to sit in the part and it is understandable. Emotionally, it is a grueling part to sit in.
Q – It is stressful?
A – Extraordinarily stressful. That’s what leads many of the lawyers to seek outlets for the stress by abusing themselves.
Q – How does the degree of client contact differ between matrimonial law or family law and, let’s say, corporate law?
A – I think in two ways. Number one is the frequency of contact. It is not unusual to receive four or five or six telephone calls from the same client in a single day. That happens. In my office I deal with it by having other people, usually a paralegal or a young associate, handle the calls, because most of these calls do not deal with substantive issues. I call them ventilating calls. The client simply wants to ventilate, explode, share some thoughts with someone, and they turn to the lawyer, because the lawyer is handling the case. That is what creates the tremendous pressure. If you don’t have the staff to handle it, then you as the attorney are subjected to these calls and, in addition, you are bombarded with letters.
I have one case now where I am getting a letter every day from a client, sometimes two. I read them all, you know, but happily they are letters and not phone calls, so I don’t hear the emotion and the tones of voice, the other emotional factors which really, if you are not steeled to it, can really upset you.
Q – Let’s deal with that for a moment. As a practitioner, how does the role of a matrimonial lawyer differ from that, let’s say, of a corporate practitioner, particularly with respect to responding to client requests or demands and whatever else?
A – The demands for responses are much more intense. With a corporate lawyer, in the years following my leaving Freeport to go to the City, I did primarily corporate work. You would get an occasional phone call on a business matter and you deal with it and that’s it.
With matrimonial cases, you get calls over and over again. The same questions are asked all the time. It is not unusual to get a phone call in the morning and you give the answer, and the next day you get a phone call with the same question in different wording, and you give the same answer in different wording, and the next day you get another call, and then in the afternoon you get another call to explain what you meant this morning.
It is a very grueling time-consuming emotionally devastating kind of practice. It takes a lot of years to get tough-skinned to know how to handle it and to be able to recognize the calls for what they are, and most of these calls are not to get information, they are really to have a listener and to have a client get from you what they want to hear, and often you cannot tell them what they want to hear because it would not be truthful, so you have to caption your answer in a way that will placate the client and not antagonize the client.
It is extraordinarily difficult to deal with these phone calls and inquiries. It is far more difficult than dealing with the straight practice of law in terms of writing papers and preparing cases for court and that sort of thing. That is predominantly the time consuming factor, especially in private practice, single practitioner.
Q – Do you have to deal with some of these calls on an emergency basis or at least on the basis of what the client considers to be an emergency?
A – Most clients consider their calls emergencies most of the time. Whether they are or not – – some truly are, but you have to deal with them and they can call you at all times during the day. They can call you at night. They can call you on weekends and they expect to get answers.
Q – Are you able, Mr. DaSilva, in your capacity as an experienced matrimonial lawyer, to respond to all of these communications from clients?
A – It is not really possible to answer every communication. Sometimes what I do if I receive two or three or four phone calls, I will take the first phone call in the day, and then it will be followed up with two or three or four more calls, and I have the client explain to the secretary or whoever answers the phone or gets the call to explain what it is and I will deal with it at the end of the day. I will return one call instead of speaking four times to the same client and in that way I try to give answers to the clients on a timely basis without interrupting my whole day all day long to hear these complaints. They are mostly complaints. There are very few, I think, legitimate inquiries.
Q – Earlier you had mentioned the phrase domestic violence. Is that something that matrimonial lawyers have to deal with, Orders of Protection, domestic violence, applications for pendente lite relief?
A – Unhappily, I would guess it is at least half of the cases that we have.
Q – Could you tell us, because I use this Latin phrase only for the purpose of the record here, what an application for pendente lite relief is?
A – This is an application made usually at the outset of the case to get emergency relief which is needed for a party or children during the course of the litigation where the relief cannot wait until the end of the trial, the end of the litigation, which might take a year or two years, and relief is needed immediately.
A simple example would be papa has left the home leaving the wife and kids without any funding, and the wife has no means of taking care of the household or the children, and you have to go into court and get a temporary Order of Support.
You have other problems with domestic violence where the client has to go to Family Court, usually it is Family Court, to obtain an Order of Protection. The orders of Protection will frequently slow down the activity or deter it for a time. There are violations of the Orders of Protection. Sometimes it is just a matter of having a party no longer harass or annoy the other spouse. Sometimes it is more serious where the party is actually put out of the house completely, have no contact.
I have one now where there is zero contact, not even communication. No communication in any form, written or verbal or anything else, in terms of contact between the parties.
Q – Is it possible, Mr. DaSilva, dealing with a domestic violence situation, where let’s say an Order of Protection is in issue, that a matrimonial lawyer could have three proceedings involving the same case in three different courts such as Supreme Court the District Court, our Criminal Court, so to speak, and the Family Court?
A – Very easily. Understand, present law, which was changed several years ago, it is possible now to seek an Order of Protection in the District Court for a criminal proceeding, go to the Family Court on the same issues and apply for an Order of Protection in the Family Court based upon the same issues, do them simultaneously, while the divorce action is pending in the Supreme Court, so you can have three courts handling issues between the parties, some of them the same, at the same time.
Q – Concerning some of these rulings or decisions that are made by the trial courts in the matrimonial field, is it also possible to have interlocutory appeals?
A – Yes. Most of the interlocutory interim orders, it is necessary to make an evaluation, is the appeal worthwhile, is it cost effective. If the cost of the appeal is $10,000 and what you can save in a temporary support order is $8,000, it does not make any sense to pursue the appeal.
It is a business judgment that has to be exercised in all of these cases, which some lawyers, particularly inexperienced ones, don’t use.
It takes an experienced lawyer to know that what we are talking about is money and most of these cases are business deals, business deals wrapped up in extremely highly charged emotions.
Q – Mr. DaSilva, you have told us what is involved to a certain extent in the practice of matrimonial law. I would ask you to step back a little bit looking back on your years of practice now, and tell us, if you would, what it is like to set up a matrimonial law practice and how difficult it is to do so.
A – It is not easy. In fact, I can honestly say that I am a matrimonial attorney because of the Long Island Rail Road. I had been commuting into the City for a number of years to work, which I did at that time primarily in the corporate field, and then I got so fed up with commuting.
I had commuted for 20 years, college, law school, practice, and I said I was not going to ride this train anymore, so I came out to the Island. I have always lived in Long Island, and at that point you could not advertise, you could not solicit business or do anything, so how do you hang up a shingle. You could solicit only from other lawyers.
I went around to all the lawyers I knew in Nassau County and I asked were there any cases they didn’t want to handle. At that time the only grounds for divorce was adultery, which made it a messy business, and they didn’t want to handle the matrimonials, and I said I would take them. That’s how I got into the business.
Later, the law changed in 1966 to enlarge the grounds for divorce, and then in 1980 we had equitable distribution and it built up, but I was already in the field.
In more recent years the Supreme Court has authorized advertising, which to me was the death of the law practice as a profession and it became a crass commercial business. With advertising it became relatively easy to get clients.
I have never advertised. I have always avoided advertising. If a client says he saw my name in the Yellow Pages, I know they are lying. It is just not so. What you get out of the Yellow Pages or the PennySaver is the low end client. The low end clients are the ones who give you the most trouble. They usually don’t have the wherewithal, the funding to pay for what they want. Matrimonial cases are very, very expensive, because of the basic nature. If you do a good job, that is. Most people cannot afford it and that’s why I settle most of my cases. I explain to the people that they cannot afford to pay for the litigation. I will explain that the litigation costs $50,000 to $60,000 or whatever the case may be, and I said,
“Wouldn’t you like to use that money to pay for your son’s college education,” and we begin to settle the case at that point.
These low end cases are the most troublesome ones. That’s why I have studiously avoided them.
Q – Troublesome in what respect?
A – The clients don’t have the financial ability to pay. That’s number one. Yet, their problems are the same problems that a millionaire would have. If there is a custody problem, it is the same whether the father is earning $30,000 a year or $300,000 a year or $1 million a year. The basic problems are the same. The issues generally are the same.
You can have a marital residence which is worth $180,000 that is in dispute and one party will say it is worth $300,000, you fight over the value of the house. It is the same fight as a fight over a house that is worth $1 million or $2 million. You do the same work. What is different is the decimal point in the numbers.
The work is the same that you have to do, but you can’t get paid because the people simply cannot afford to handle it. As a result, you take the case as a young lawyer or an inexperienced lawyer, and you find soon that you can’t handle it. In order to have a cash flow, you take more cases. Now you have more cases than you have a right to handle perhaps, and you spread yourself too thin.
When advertising first came into vogue, I am sure the judge will remember, there were ads in the classifieds, “uncontested divorces for $100,” and I said I would sit back and wait to see what happened. It was a matter of time until they stopped. They got so much business they were losing money. They could not make their overhead.
That’s the problem. Young lawyers can get clients very readily, but they are not the clients who can pay, but their demands and their problems are the same. This is the vicious problem that has been created. I think it was created by advertising. There used to be a sort of a mentor system. They still have it in medicine, not in law, where you would work with a lawyer and get your feet wet. You don’t have to do that anymore. You can come out of law school and advertise and have people come in.
If you need funding, you have to make a living, it is very enticing. You do the best you can, but what happens is when you have all of these cases and time constraints and an inability to do everything you want to do, it now affects you emotionally, and I think a great many of these young lawyers, if they don’t have a mentor, somebody to go back to, somebody to help out, that they break under the strain. It is not unreasonable to think that would happen.