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What's the protocol on this?

Applying for a lateral position at a big law firm which requires a writing sample. The most relevant sample of work for the position is a memo I assisted in the research of, but did not draft.

My idea is to draft a memo re: the same issue to submit as a writing sample. Note that I imagine cribbing a lot from the memo, but intend to draft and edit myself.

Alternatively, i can revise an article I wrote in law school.

Thoughts?

Probably better to use the article, or to write a memo on a different made-up topic, IMO; submitting a writing sample that heavily cribs from something someone else wrote is kind of missing the point.

If it's super important that you worked on that memo, find another way to talk about it.

elendinel wrote:Probably better to use the article, or to write a memo on a different made-up topic, IMO; submitting a writing sample that heavily cribs from something someone else wrote is kind of missing the point.

If it's super important that you worked on that memo, find another way to talk about it.

How about converting notes written in preparation for the memo into memo, including analysis. My notes are fairly extensive ~4pages and already includes my research and analysis of the issues, but it is not in a memorandum format.

My main concern is violating any ethics rules or having to reach out to the partner. I don't need to borrow from the memo.

Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

PeanutsNJam wrote:Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

If it's public record I don't see why you'd have to ask for permission. It's out there for anyone to see. OP is talking about a memo (inter-office, client?), which probably wouldn't be shareable without consent. Technically, memos written for LR are the property of the client.

The thing I am getting hung up on with re: to OP's question is how does he/she not have any substantive writing samples as a practicing attorney? If you have to make up a memo just to use as a writing sample, you're going to have to disclose that to the interviewer. And they're going to think either (a) this sample is not demonstrative of what this person's work product is like or (b) this person has no experience.

If you write well, it shouldn't matter what the subject matter is.

1styearlateral wrote:

PeanutsNJam wrote:Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

If it's public record I don't see why you'd have to ask for permission. It's out there for anyone to see. OP is talking about a memo (inter-office, client?), which probably wouldn't be shareable without consent. Technically, memos written for LR are the property of the client.

The thing I am getting hung up on with re: to OP's question is how does he/she not have any substantive writing samples as a practicing attorney? If you have to make up a memo just to use as a writing sample, you're going to have to disclose that to the interviewer. And they're going to think either (a) this sample is not demonstrative of what this person's work product is like or (b) this person has no experience.

If you write well, it shouldn't matter what the subject matter is.

I am applying for a position in a different practice group from the one I am currently in. Both are very niche and the listing is looking for someone with that niche experience. My intent is to provide a sample of writing related to that practice area, but I've had limited opportunity to do any work in that area thus far. I have published an article in my practice area, drafted published opinions for judges and have a number of samples from JD. However, most of these are either inadequate representations of my legal analysis ability or unable to be used.


In addition, as I and others have alluded to, all legal memoranda I have drafted or assisted in drafting is privileged. Nothing is published. I'm in a transactional-based practice, not litigation.

Sounds like the consensus is not to use any work product from my current firm job without permission though. I may as well just use the article, but my hesitation there is that 2 others worked on it with me and as noted above, its not directly relevant. I'm a 1st year btw.

Anonymous User wrote:

1styearlateral wrote:

PeanutsNJam wrote:Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

If it's public record I don't see why you'd have to ask for permission. It's out there for anyone to see. OP is talking about a memo (inter-office, client?), which probably wouldn't be shareable without consent. Technically, memos written for LR are the property of the client.

The thing I am getting hung up on with re: to OP's question is how does he/she not have any substantive writing samples as a practicing attorney? If you have to make up a memo just to use as a writing sample, you're going to have to disclose that to the interviewer. And they're going to think either (a) this sample is not demonstrative of what this person's work product is like or (b) this person has no experience.

If you write well, it shouldn't matter what the subject matter is.

I am applying for a position in a different practice group from the one I am currently in. Both are very niche and the listing is looking for someone with that niche experience. My intent is to provide a sample of writing related to that practice area, but I've had limited opportunity to do any work in that area thus far. I have published an article in my practice area, drafted published opinions for judges and have a number of samples from JD. However, most of these are either inadequate representations of my legal analysis ability or unable to be used.


In addition, as I and others have alluded to, all legal memoranda I have drafted or assisted in drafting is privileged. Nothing is published. I'm in a transactional-based practice, not litigation.

Sounds like the consensus is not to use any work product from my current firm job without permission though. I may as well just use the article, but my hesitation there is that 2 others worked on it with me and as noted above, its not directly relevant. I'm a 1st year btw.

I agree that I wouldn't use work product without permission. Even if it isn't an issue, it might make some interviewer question your judgment.

I also don't think your predicament is that unusual. Even if you're in a litigation practice where things get publicly filed, it's pretty common for briefs to be so edited and collaboratively written that the filed version won't reflect your work very well. And it may go in under someone else's name, which makes it difficult and awkward to say it's your work. I'm not really sure how people negotiate this issue. But in your situation I would just use the article. It's the best of bad options. Just disclose others' role in it.

1styearlateral wrote:

PeanutsNJam wrote:Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

If it's public record I don't see why you'd have to ask for permission. It's out there for anyone to see. OP is talking about a memo (inter-office, client?), which probably wouldn't be shareable without consent. Technically, memos written for LR are the property of the client.

The thing I am getting hung up on with re: to OP's question is how does he/she not have any substantive writing samples as a practicing attorney? If you have to make up a memo just to use as a writing sample, you're going to have to disclose that to the interviewer. And they're going to think either (a) this sample is not demonstrative of what this person's work product is like or (b) this person has no experience.

If you write well, it shouldn't matter what the subject matter is.

Two things.

First, apparently even if something is a matter of public record, some ethics panels believe the matter nonetheless constitutes confidential information and can only be disclosed with redactions, or the client's consent. For instance, if you file/serve a brief on PACER, it is doubtlessly part of the public record (unless filed under seal). But if you want to use that same brief as a writing sample, you'll need to redact party names, case number, and the judge's name.

Second, I'm not in a transactional practice, but some of my good friends from law school are. I get the impression their writing consists of internal memos. and opinion letters. They do not write anything that is ever publicly filed. Thus, the materials constitute firm work product and cannot be disclosed or used without the firm's/client's consent.

Thus, I think you're best off using an article you personally wrote. Or, if you wrote something that was used at a CLE that demonstrates your ability to reason and analyze, that'll work too.

kykiske wrote:First, apparently even if something is a matter of public record, some ethics panels believe the matter nonetheless constitutes confidential information and can only be disclosed with redactions, or the client's consent. For instance, if you file/serve a brief on PACER, it is doubtlessly part of the public record (unless filed under seal). But if you want to use that same brief as a writing sample, you'll need to redact party names, case number, and the judge's name.

Huh, this is very interesting. Memos, sure, but publicly filed briefs? Wow.
Any idea what jurisdiction re the ethics panels?
But yeah, it's not that uncommon for people to only have (1) confidential memos and (2) product edited by other attorneys. I have massive leeway to write things however I want to but everything still goes through at least one other attorney for review and edits before filing. Sometimes the edits are so minimal the filed brief is 99% my own work, other times it's heavily edited.
But... agree with getting permission. Safest.

kykiske wrote:

1styearlateral wrote:

PeanutsNJam wrote:Aren't you like not allowed to use any work you did for your firm at all without firm permission? Not sure

If it's public record I don't see why you'd have to ask for permission. It's out there for anyone to see. OP is talking about a memo (inter-office, client?), which probably wouldn't be shareable without consent. Technically, memos written for LR are the property of the client.

The thing I am getting hung up on with re: to OP's question is how does he/she not have any substantive writing samples as a practicing attorney? If you have to make up a memo just to use as a writing sample, you're going to have to disclose that to the interviewer. And they're going to think either (a) this sample is not demonstrative of what this person's work product is like or (b) this person has no experience.

If you write well, it shouldn't matter what the subject matter is.

Two things.

First, apparently even if something is a matter of public record, some ethics panels believe the matter nonetheless constitutes confidential information and can only be disclosed with redactions, or the client's consent. For instance, if you file/serve a brief on PACER, it is doubtlessly part of the public record (unless filed under seal). But if you want to use that same brief as a writing sample, you'll need to redact party names, case number, and the judge's name.

Second, I'm not in a transactional practice, but some of my good friends from law school are. I get the impression their writing consists of internal memos. and opinion letters. They do not write anything that is ever publicly filed. Thus, the materials constitute firm work product and cannot be disclosed or used without the firm's/client's consent.

Thus, I think you're best off using an article you personally wrote. Or, if you wrote something that was used at a CLE that demonstrates your ability to reason and analyze, that'll work too.

Idk, anyone can go onto eCourts or PACER and look up cases by firm and scroll through them until they find one you've worked on. It's not hard. Would it be permissible to give an interviewer a case cite or index number? Where do you draw the line? Asking your firm for permission to use a writing sample for a lateral position seems like a good way to be out on your ass before you secure a new job.

what retarded ethics panel found that publicly filed court documents contain confidential information (assuming it wasn't filed in error or something).

Agree with DF, if publicly filed it is fair game.

kykiske wrote:First, apparently even if something is a matter of public record, some ethics panels believe the matter nonetheless constitutes confidential information and can only be disclosed with redactions, or the client's consent. For instance, if you file/serve a brief on PACER, it is doubtlessly part of the public record (unless filed under seal). But if you want to use that same brief as a writing sample, you'll need to redact party names, case number, and the judge's name.

Source for this? You don't have to cite to all the ethics panels that you think believe the above. I'll settle for just one.

Does the fact a memorandum is filed on public record mean the attorney is allowed to send it to 3rd parties that wouldn't be reasonably expected to have ever read it otherwise? I don't think it's unethical. Just seems like an interesting question. I doubt any firm would let you use it, not because they own your work product but because it doesn't benefit them and imposes a 1:1,000,000 chance of a potential conflict.

rpupkin wrote:

kykiske wrote:First, apparently even if something is a matter of public record, some ethics panels believe the matter nonetheless constitutes confidential information and can only be disclosed with redactions, or the client's consent. For instance, if you file/serve a brief on PACER, it is doubtlessly part of the public record (unless filed under seal). But if you want to use that same brief as a writing sample, you'll need to redact party names, case number, and the judge's name.

Source for this? You don't have to cite to all the ethics panels that you think believe the above. I'll settle for just one.

I know MN's ethics panel believes that you need to redact party names, file numbers, and judge's names even for things that are publicly filed.

I'm not sure about other states though.

My understanding (though I could be wrong) is that Rule 1.6 is much broader than the attorney client privilege (which is a discovery privilege).

Relevant part of Rule 1.6 states:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

As in, the lawyer is ethically prevented from disclosing any information about representing the client unless the client gives informed consent. Using a brief, even though it is public record, without making the needed redactions, could trigger a violation of this rule. The laywer would be revealing information relating to representing the client without the client's consent.

This discussion is fairly interesting, but does anyone have any further comments on my idea?

Drafting a memo based on an issue presented in an actual legal memo. Seems like an unfavorable option.

Anonymous User wrote:This discussion is fairly interesting, but does anyone have any further comments on my idea?

Drafting a memo based on an issue presented in an actual legal memo. Seems like an unfavorable option.

Without the client's name? I'd do it. The firm won't give you permission because it's a can of worms, but this doesn't sound like a real ethical issue. Can anyone find out who the client is based on the memo? If the answer's no, just do it. If the worry is if they cross reference it with the filed brief and know who the client is, you didn't reveal anything new.

I think the concern is that if, for instance, DeShauna was sued because her dig bit Pablo, people can find out DeShauna was sued by searching on their own but if the info is being emailed out by her attorney, people are reading it who wouldn't otherwise it. Common sensibly, not many people are plowing through court records looking for briefs about their friends so public record is somewhat of a misnomer. Your issue isn't like DeShauna's.

Don't drive yourself crazy -- be sure to delete/redact absolutely everything that could be used to identify the clients/firms, and you'd be fine. That's what most BigLaw laterals do - they aren't gonna write something new or pull something out of their law school daze. Clearly, you are not going to ask for your current firm's permission, lol. **Don't forget scrubbing the meta data.**

I know they all ask for it, but I am not aware of any recruiting committee member actually reading the writing sample in any depth beyond making sure you can communicate in written English. . . . actually, that's probably just optional.