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Where the Work Is

Aug 2, 2009, 03:39 am CDT

Times are tough. It’s enough to make a lawyer think about changing career directions.

Common belief has it that the legal field has so many practice areas, some practices are up even when others are down. Yeah, but other than bankruptcy, exactly which practice areas are thriving these days?

That’s where you came in. On ABAJournal.com, readers were asked to name some of the lesser-mentioned practices where an attorney might find refuge from this recessionary storm. Here are some of your suggestions.

ALTERNATIVE DISPUTE RESOLUTION

Cash-strapped corporations of all sizes, private individuals and others are seeking to avoid litiga­tion costs and procure the services of neutral parties to resolve business-to-business, consumer and family conflicts. That’s been a boon to third-party nego­tiators in the areas of arbitration, mediation, nego­tiation, collaborative law and other practices that fall under the broad umbrella of alternative dis­pute resolution.

“There is a push from the clients … looking for rapid and effective dispute resolution,” says Richard Naimark, senior vice president of the American Arbitration Association, a private, nonprofit provider of dispute resolution services. “On the other side, an increasing number of attorneys realize that arbitration and mediation expand their tool chest.”

Data from the AAA shows the organization’s 2008 case filings rose to 138,447, up 8.4 percent from a year earlier. Its commercial caseload, which deals with business-to-business conflicts, rose 3.7 percent to 14,145 cases. And the AAA’s international cases rose 13 percent last year to 703. “You have a lot of abandoned projects and a lot of broken contracts,” Naimark says.

But the Arbitration Fairness Act of 2009, introduced in February, could put some drag on this trend. If passed, it would create laws invalidating agreements that require employees to accept arbitration prior to disputes.

PREPAID LEGAL SERVICES

Prepaid legal services appear to be a well-kept secret that some participating attorneys are reluctant to share. But Dallas attorney Karen Askew will talk. She says she may spend one day drafting a will for a struggling teacher and the next doing a multimillion-dollar real estate transaction for a Fortune 500 CEO.

“This adds a lot of variety to my practice,” says Askew, who runs a small firm. “A general practice attorney is a dying breed.”

Employers sign up for prepaid legal service plans and let employees participate for a small monthly fee. Par­ticipating employees then have a lawyer to call for a variety of problems either free or for a discounted fee, while other matters are not covered.

Prepaid legal services represent 35 to 40 percent of Askew’s business. Her client base has only increased with the recession, she said, due to the rise in foreclosures.

“The general populace can’t afford the average lawyer at $350 an hour,” Askew notes. “This is very affordable.”

But not everyone is a good candidate for this practice, lawyers caution. For one thing, you are required to carry malpractice insurance. And most plans require lawyers to have at least three years of general practice.

“If they have the right attitude it would be a good suggestion,” says Askew. “You need to be tactful; you need to throw away your ego; and you need to be honest, fair and organized.”

ENVIRONMENTAL AND ENERGY LAW

The commitment of the obama administration to the development of renewable, efficient sources of energy brings a wave of opportunity to lawyers practicing energy and environmental law.

“You’re seeing the greenhouse-gas climate issues raising traditional areas of practice into new areas of work,” says Howard Kenison, a partner with the Denver office of Lindquist & Vennum and chairman of the ABA’s Standing Committee on Envi­ronmental Law. “Quite often the environmental at­torneys in a firm are the most active leaders in the climate-change practice.”

Much of the work centers around logistics, such as agreements that spell out how alternative forms of energy will be transported to cities, or leasing agreements for farm cooperatives and other prop­erties that serve as hosts to wind turbines.

In the next 10 or 15 years, Kenison predicts, en­vironmental-property-related matters will become more important as traditional, coal-fired energy plants seek large swaths of land to store their captured carbon emissions underground.

And with federal mandates for lessened de­pendence on foreign oil and lower greenhouse-gas emissions, energy law is heating up. Areas such as compliance and enforcement, modernization of the electricity grid and cyber-security are just a few of the growing opportunities, says Sheila Slocum Hollis, who chairs Duane Morris’ Washington, D.C., office and also chairs the ABA Journal Board of Editors.

Market regulation is increasing as government agencies place a greater emphasis on competition and increased transparency in the trading of energy derivatives. “You’ve got a lot of inquiry, a lot of enforcement at the regulatory agencies,” says Hollis. “I don’t expect that will subside.”

Meanwhile, moves toward a national, renewable portfolio standard, requiring electricity suppliers to get specified amounts of energy from renewable sources, are gaining momentum. There are also prospects to work with the host of startups in wind, solar and other so-called clean technologies.

“It’s going to be beyond the con­fines of Washington and Hous­ton,” Hollis says. “It af­fects every regulated entity.”

CONSUMER PROTECTION

When the economy tanks, it’s a surefire bet that consumer protection will prosper. Lawyers report a brisk business representing consumers being ripped off.

“When it first started out, we helped anybody who was defrauded by a merchant—a lot of lemon law cases,” says Jerril J. Krowen, a solo practitioner in Topsfield, Mass. But as car dealerships are shuttered, consumer protection lawyers are branching out to attack other schemes, particularly those involving identity theft, credit card fraud and vio­lations of the National Do Not Call Registry.

“Now it has turned into a lot of identity theft,” Krowen says. “There are so many different schemes continually popping up. The amount of business I have is voluminous, and it’s getting higher and higher.”

Krowen also finds himself dabbling in the Internet arena—fighting “cybersquatters” for clients seeking domain names.

Ahmad Keshavarz, a solo consumer protection lawyer with offices in New York City and Austin, Texas, is quite busy suing various debt collectors for violations of the federal Fair Debt Collection Practices Act. He also targets illegal fees, phone-call harassment and the filing of frivolous suits. And it doesn’t always matter whether clients can afford to retain him because if he wins, Keshavarz can collect attorney fees.

“This is all I practice,” says Keshavarz. “I get a great deal of satisfaction from it. I’m getting a lot of these cases lately.”

However, consumer pro­tection is not an area of the law a lawyer can jump into easily. “It takes quite a lot of time to become proficient in the various consumer statutes,” says Michael Quirk, a Philadelphia attorney with Williams Cuker Berezofsky. “There’s a huge morass of conflicting law.”

DEBT COLLECTION

It’s no surprise debt collection is booming. “I have a ton of business; it’s coming from every which way,” says solo Clark Kingery, a Wilmington, Del., debt collection attorney. “I’m having a hard time keeping up.”

Kingery only knows of about a half-dozen attorneys specializing in this area full time in Delaware, but more are jumping in as the economy tanks. Debt collection attorneys represent banks, credit card companies and colleges that go after people for nonpayment. Or they represent “debt buyers,” middlemen who buy up debt from the original lender after people don’t pay for six months.

The work is relatively easy—“hamburger flipping,” as Kingery puts it—and the pay is decent. A former assistant attorney general, he now earns $130,000 annually and works only about 35 hours a week.

But it would be difficult to jump into this specialty because it takes two to three years to sue and ultimately collect through wage garnishment, he says. And larger law firms that used to refer out debt collection are now filing the cases.

“Firms that used to send me the work are keeping it,” says Darrell W. Cook, a Dallas attorney who runs a small firm specializing in debt collection and breach of contract. “Firms like Baker Botts and Locke Lord [Bissell & Liddell].”

Those filings, however, are businesses suing businesses and for $100,000 and up, whereas Cook’s are businesses suing individuals and in the $35,000-$50,000 range. Cook fell into debt collection when, one hour after passing the bar, a former account­ing colleague asked him to take a case. He studied the Texas Collec­tions Manual over the weekend and had 10 cases within a week. “I never looked back,” he says.

ELDER LAW

With baby boomers aging, elder law is thriving. Along with asset preservation, estate planning, Medi­­caid planning and simple wills, the practice can include aspects of real estate and litigation.

And while fees might be dipping as estate sizes drop, the business itself is steady, say several elder law attorneys. “People need care no matter how bad the economy is,” says Amanda Wolf, a solo practitioner in Tampa, Fla., “and I’m probably getting more business because people need to get access to benefits these days.”

Cognizant of the growing need, many real estate lawyers are shifting from their reces­­sion-battered practice into elder law. As Peter Clark, a solo in Mansfield, Mass., saw his real estate business begin dropping off a couple years ago, he started marketing himself as an elder care lawyer and taking many continuing education classes. “You can’t just read a book to learn this,” he says.

Clark has been successful in getting new clients by putting the word out at his local chamber of com­merce and through financial planners and bankers. He also benefits from practicing in a small community where no one else is practicing elder law.

But solo Sasha Golden, an elder law attorney in Needham, Mass., cautions that not everyone is cut out for this specialty. “You have to have a certain temperament for this job, be an excellent listener and have a little bit of a social worker in you,” says Golden. “You’re dealing with people in crisis.”

LABOR LAW

Record-high jobless rates and pro-union federal legislation may be negative news to some, but they add up to positive trends for America’s labor lawyers.

Firms specializing in labor and employment law say they’re growing busier as job losses result in cases related to wrongful termination, severance, un­em­ployment disputes and discrimination, as well as work relating to how companies deal with labor unions.

“We’re not in hiring mode yet, but we’re taking on much more of a caseload,” says Matthew D. Austin, of counsel for Dublin, Ohio-based Mason Law Firm Co., a small shop representing privately held companies in the manufacturing, construction and grocery industries.

If passed, the Employee Free Choice Act could benefit his business, Austin says. The act would eliminate the veto power employers hold over the card-signing method of obtaining majority votes for unionizing. The push toward increased representation would bring a host of legal work.

The act “is going to pass in some form,” Austin says, adding that it will be “a major boon for what we do.”

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