Oklahoma Bar Journal
Confessions of a Small-Town Attorney: A Day in the Life of a Ham and Egger
By Micah G. Ayache
Establishing a solo law practice in a small town in Oklahoma can be daunting. However, obtaining experience while attending law school, tips on hanging out your shingle and maintaining your daily practice will be beneficial to your professional life.
Law school may be the longest, most expensive initiation rite known to man. You pay a small fortune to leave your hallowed halls of learning armed with the ability to put “J.D.” behind your name. However, unless you worked in a clinic to gain experience in family court matters, law school doesn’t really teach one how to practically practice law. For example, after taking property law and learning the four elements for adverse possession, it all seems pretty simple ... until you are faced with your first quiet title by adverse possession lawsuit. More about that later.
One avenue for gaining experience is to work for a district attorney’s office as an intern and then hopefully as a “baby” assistant district attorney. If you are starting out fresh from law school, a stint in the office of the district attorney is invaluable. It is almost impossible to get a bar complaint, there are no overhead costs, you get state insurance, you have a staff of experienced attorneys and secretaries who know what you should be doing and how you should do it and you have an incredible amount of power. Another bonus includes a lot of court time. If the hearsay exceptions were a little vague during law school, you’ll learn them really fast as an assistant district attorney.
Since not every graduate returning to or settling in a small town can count on employment with the district attorney, you should track down the local attorney with the Oklahoma Indigent Defense System (OIDS) contract. This is much like working for the district attorney, but from the other end, as far as gaining invaluable courtroom experience. Working as an OIDS contractor you’ll get bar complaints, have no staff, still have overhead and have no power whatsoever, since all criminal defense attorneys are at the mercies of whatever assistant district attorney with whom you are dealing. However, you will build up a lot of repeat business from clients who may one day – when you divorce yourself from the OIDS roster – find themselves sufficiently imbued with funds to retain you. Added to this hope for future benefit, the relationships you build with the judges and courthouse staff will also serve you well in the future. Coupled with the necessary salary, the OIDS route is a good start for a new attorney in a small town.
While joining an established law firm is not out of the realm of possibility, most small towns appear populated with what John Grisham calls “Ham and Egg Lawyers”1: single-lawyer firms with one secretary. In the event that two or more lawyers have teamed up and formed a firm, the odds of them hiring are somewhat slim, and if such a conglomerate is hiring, they’ve already taken on the newly graduated son or daughter of a law school buddy, which means you can’t count on joining an established small-town firm.
HANGING THE SHINGLE
At some point, feeling now comfortable in your small town, you may decide to spread your wings and open your own practice. This is not the same as hanging a shingle in a city. In a small town everybody knows you. You may look about as far away from being a lawyer as it is possible to get and still be asked if you like being a lawyer. What this means is reputation is everything. In a small town, news travels fast and everyone talks. Small towns have, it seems, a whole class of citizens who collect legal troubles but have either no way of paying an attorney to resolve those legal problems or have no desire to pay an attorney to resolve those legal problems. If you hang your shingle, you will meet all of these people in the first six months of opening up. If they’ve had some legal issue unresolved for years, just know there is a reason why it has gone unresolved and it is probably financial.
In spite of what you tell yourself, none of us endured the misery of law school to “help our fellow citizens” as our only goal. Without the promise of payment we usually have no incentive to raise to our hind legs in court and do verbal battle with opponents and judges. Rather, we remain silent as the tomb until the currency of the realm works to loosen our tongues. Basically, while we may desire to help our fellow man, we would like to be paid to do it. That overhead you did not have with the district attorney is constant and always looming in private practice.
In a small town you’ll do a lot of criminal work and family (divorce/paternity) work. When these clients come flooding in you will need to have an effective billing program to keep track of who has paid what, and more importantly, a secretary who can chase money. If you can get half a fee, you will consider yourself paid. Often times what you take up front is all you ever get, particularly with criminal cases. This poses a problem when it is midway through the month and you have yet to cover your monthly bills. It may be the day before “Be Back” day, then someone comes in needing a lawyer for a three-felony-count case and a couple of trailing misdemeanors.
Small town practice is a lot of billing work. Make sure you know your judges’ thoughts on withdrawal for nonpayment of fees. Ascertain if in a certain jurisdiction you must get all your fee up front because that county will not let you withdraw even if you have a contract that shows you are entitled to withdraw for nonpayment of fees.
The experience of practicing law in a small town is not confined to office hours or office environments. As noted above, the entire town will know you are a lawyer. Always take business cards when you go to Wal-Mart or the high school football game or the FFA fundraising lunch, because many times someone will need to come see you on Monday and hopefully bring some money.
Contracts for representation are a good idea, as in these you can clearly show what the limits of your representation may be and how much you will be paid for doing this representation. However, understand that the payment portion often means nothing. If you sue a client on the payment issue based on the contract, you will have your judgment, that with a dollar will buy you a cup of coffee.
Starting off in a small town, you may not have much to worry about regarding conflicts of representation. An exception would be if you were first employed by the district attorney’s office. Believe it or not, many criminal clients will have been clients of some other lawyer for some time prior to your striking out on your own, and it is actually a misdemeanor criminal offense that mandates loss of license to offer advice to a person you have previously prosecuted, as well as being a breach of the Oklahoma Rules of Professional Conduct Rule 1.9.2
Therefore, in a small town, a “conflict” database is a must. However, even with a conflict database conflicts will slip through the cracks. If you only put a principal litigant (of three persons) in a conflicts database, you may end up suing a current client several years later if the initial matter was never resolved. The only answer would be to immediately withdraw from both cases.
In a small town, many people work out of town which means you may make appointments outside “city” hours. A divorce consultation may happen when the potential client gets back in town, and this may be after 6 p.m. It may be on a Saturday or even a Sunday. Fortunately, there is always plenty to do and it is nice to get something done without having to take phone calls every few minutes.
Small town practice means you are on your own. If some tricky point of law comes up, or some elusive statute needs to be tracked down, you don’t get to walk next door and ask another firm lawyer. It also means when scheduling conflicts arise – and they will – you don’t get to ask another lawyer in your building to cover for you. Some judges and lawyers will just set stuff. Some opponent files a motion to compel or some equally annoying document, and the first time you know about it is when you get a schedule from the judge’s office showing you are on the next motion docket. The problem may be that you have had a hearing on the merits or a preliminary hearing scheduled for the past six weeks on that exact same day!
When this happens, it is always an out-of-town matter, so that means a lengthy session resolving the conflict. Experiences in this vary; some courts will just move it to the next docket, some will require a motion and proposed order. Consultation with the moving party (who invariably practices in that jurisdiction and so is always at the motion docket anyway) is a must, so before you know it there goes 30 minutes to an hour of your day. On occasion you will have to trot out “The Oklahoma Guidelines for Resolving Scheduling Conflicts”3 to resolve the problem of needing to be in two different places at the same time.
However, good working relationships with your fellows will help relieve anxiety when such conflicts or gaps in knowledge occur. You will have local lawyers call you on Sunday to ask your opinion about some issue, and you will cover matters and have matters covered when scheduling conflicts come up. Such is life in the practice of small-town law.
When newly striking out on your own, you will find that knowing the law and accurately conveying that knowledge in the form of pleadings and journal entries are two quite different animals. Remember the first quiet title suit mentioned earlier? It seemed simple and in retrospect, it was a simple quiet title suit. Now you can draft a petition, get everything published and obtain approval and recording of a journal entry without breaking a sweat. Back then, your adopted mentor may call you an idiot and do the petition for you if he does not want his alma mater embarrassed by your work. Turns out just saying those four elements of adverse possession and asking for the property, please, does not make a very effective journal entry from a title examiner’s point of view. For the first two to three years it will take you about six times longer to do anything than it should have taken because you have no idea how to actually practice law. You cannot charge clients for the actual time you spend on their issues until you get a series of petitions and motions which can be used and reused. Anyone who is starting out in a small town should get an established lawyer to review pleadings and be your mentor. If you can share an office as you establish your own practice, do it!
When all is said and done, you will find the practice of small-town law quite demanding. Everybody who comes into your office has problems, and sometimes these problems have been years in the making. You tell your clients that if you were doing this on your own you would guarantee them what they want. However, since you have the district attorney or other opposing counsel and the judge to convince, what they want may not happen. All you can promise is that you will work as hard as you can to get them what they want. Small-town law practice means you will see these people again, perhaps in Wal-Mart, at the Relay for Life or maybe football or basketball games, all the usual events that happen in a small town. If you have won your case, these meetings are sometimes quite nice. If you did not prevail, you will always feel as if you let them down, even if they seem pleased with how the case was conducted. The practice of law in a small town is definitely more personal than in a large city in that you are never really away from it. If you are out in public, so are your clients or opposing parties. Shaking hands with the other side of a pending divorce case at the FFA auction can be awkward but happens frequently. The plus side of a small-town practice is the general collegiate atmosphere most lawyers have with one another, and you wouldn’t have it any other way.
ABOUT THE AUTHOR
Micah G. Ayache is an attorney based in Pauls Valley. Originally from New Zealand, where he was a sworn officer with the New Zealand Police Service, Mr. Ayache settled in Oklahoma in 2002. Upon graduating from the OU College of Law, he worked as assistant district attorney for Cleveland, McClain and Garvin counties. In 2010, Mr. Ayache opened his solo practice.
Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 33 (December 2019)