6 Key Considerations When Moving from Government to Private Practice

Source: Bloomberg BNA

When I left government in 1990 I thought it was sufficient to have tried more than two dozen cases in federal court, successfully argued numerous appeals in the Second Circuit, and to have "Managing Editor of the Columbia Law Review" on my resume. I felt entitled, if not to a corner office, at least to partnership in a well-regarded law firm. In retrospect, I was incredibly naïve about the transition from public service to private practice. Not a single one of the half-dozen firms that was sufficiently desperate or optimistic enough to consider bringing me in as a partner is still in existence today.

The landscape for lawyers making the transition from government service to law firms is far different today. Here are a few trends that my U.S. colleagues and I have seen, and some best practices for both individuals and firms.

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Law firms, particularly since the Great Recession, are increasingly reluctant to bring in former public servants who cannot promise with certainty a roster of clients and billings. A focus on the short term — on this this year’s PPP, rather than the long-term strength of the firm — sometimes prevails. Of necessity, as law firm economics become increasingly Darwinian and competitive, firms are less inclined to make what I call "investment hires" — folks who could over time turn out to be significant rainmakers but will not be accretive from Day One. As one result, it is increasingly common for people leaving government (other than those at the very highest levels of seniority and responsibility) to join a law firm as counsel or non-equity partner, rather than as an equity partner.

COMPENSATION:

With great regularity, I see articles bemoaning the "revolving door" between private practice and public service. Those who leave government for law firms are viewed as cashing in on their experience, when in fact it could be argued that the opposite is true. In fact, government agencies have the opportunity to attract the best and the brightest, idealistic, hard-working lawyers at a huge discount to the compensation they could earn if they stayed at a large law firm. I always tell government candidates when we begin to work together — with a smile — that I am pretty sure I can get them a raise. In fact, they will invariably earn multiples of their government salary, and it is not uncommon for someone to make 10 times the sum they earned working 70 or 80 hour weeks as public servants. In short, it isn't a revolver — it's a loan.

It is much more difficult to determine a fair level of compensation for someone coming from government than it is for partners changing firms. Public servants do not have a "book of business" or a stable of repeat clients, and cannot point to a three-year history of originations, realization rate, billing rate, billable hours, etc. I have worked with highly sought-after candidates — people that the law firms really really wanted to win — where the highest offers as compensation were in some cases 2.5 times the lowest offer. This was not because the firms at the low-end did not want to be successful — quite the contrary. And it was not because the firms at the upper end were eager to overpay. That is rarely the case, even with government superstars. Rather, the range was so extreme because there was simply no objective measure that would yield a "correct" number. Recruiters, as the intermediary in the transaction, can be a resource to help the under-bidders understand what the market is saying without the candidate appearing to be greedy. While it is important for firms to stay within their comfort zone as far as the range of appropriate compensation, they also need to be competitive.

CONFLICTS:

Sometimes firms are scared off by potential conflicts, real or imagined. As one of our candidates recently experienced, some firms fear that clients in a certain industry may harbor residual resentment for the candidate’s aggressive pursuit of certain companies. Those with long memories still recall the well-regarded state governor who was blamed for the old-line New York law firm he joined losing a major insurance company as a client (and that a few years later the firm dissolved).

For most lawyers leaving government, there are elaborate regulations and ethics rules governing the types of matters from which they must be recused, either for a specific time period or forever. Those restrictions can impact the transitioning lawyer's business plan, at least in the short term, and make it tougher to begin to build a self-sustaining practice.

BUSINESS PLANS:

It is increasingly important for government lawyers seeking to transition to a law firm to put together a business plan that describes with as much specificity as possible how they intend to develop a practice that will both be self-supporting and advance the firm’s strategic goals. Such plans are quite different from those compiled when a partner moving from one firm to another with an existing client following. Typically it will include a description of the lawyer’s relevant background and experience, and analyze how that will be of value to the firm's clients. Providing an analysis of recent trends — for example, if False Claims Act cases are increasingly being brought against health care providers and the law firm has many such clients — will help the plan move from the general to the more specific.

The typical business plan will generally include a list of high-level contacts (both those who are currently in government, and those who are potential sources of business), with specific detail as to the nature and duration of the relationship. On those rare occasions when government candidates actually have a client that they are confident will utilize them once they join a firm — through a family connection, for example, or a long-time mentor who is a General Counsel — those should be described with specificity as well. If the lawyer was previously a partner in a firm before going to the government, they should point to previous client relationships they developed even if it is not certain those relationships can be renewed.

The most important commodity for a former government attorney is credibility. Firms do not expect you to get an indictment dismissed simply because you represent the defendant and you know (or once worked with) the higher-ups at the prosecutor's office. But you are more likely to get an audience with the decision-makers and, if you put your credibility on the line, to be listened to with an open mind.

Some law firms view government lawyers with at least a smidgeon of suspicion. (A Cravath partner in the mid-70s told me that if I joined the firm I would never allowed back if I went to the U.S. Attorney's Office, because people in government "don't learn how to cut square corners".) It is critical to convey that you continue to have the highest professional standards for your work. It is even more critical to make clear that you are not simply waiting for work to appear in your inbox, but rather that you want to build a real practice.

Read the full-feature article on Bloomberg BNA Legal Communities.

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Jon LindseyJon Lindsey is the New York founding partner of Major, Lindsey & Africa. He views his role as helping highly successful professionals choose the path that will best advance their careers and maximize their happiness. He seeks to provide outstanding service to the partners and law firms he works with, and to do so with integrity, intelligence, discretion and professionalism.

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