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Ethics of Writing Samples:

A reader asks:

I am a second-year associate and currently considering making a lateral move to another firm. One of the firms to which I have sent my resume has since asked for a writing sample.... The seminar papers I authored while in school were all on loaded topics (originalism, use of force issues). Additionally, given the time constraints of my workload as a junior associate, it would be very difficult to produce something from scratch within the next few days, in order to respond in a timely manner to the firm requesting the sample.

Under what circumstances, if any, may I use work I created at my current firm as a writing sample without asking my current firm for permission to do so? I do not want to let my current firm know I am trying to leave. Obviously, internal memoranda are out -- but what about motions filed with the court and thus in the public domain? Would this alleviate the need for permission, since nothing non-public would be submitted? I would redact identifying names, case numbers, etc., just to be safe.

Of course, this raises an additional problem -- as a junior associate my name is not on the signature line, a partner's is. I know some schools' guidelines for writing samples state that in such situations one must get the signing partner's approval -- which would again require me to reveal my intentions to the firm. What if I used my earlier draft of the motion, which had not been signed by anyone? The legal content of the motion all ended up in the submitted version -- and thus in the public domain, but there is no one else's name attached to it.

I have my own thoughts on the subject, but I thought I'd start by soliciting yours.

merevaudevillian:
I think that you cannot use work product created for your law firm on your own without approval from the firm. I also think a motion in the public domain would be permissible, but you're stuck with (1) admitting that it's been edited by another (if applicable--maybe you can find something that was never edited, but only read over then approved), and (2) sending out a document without your name on the signature line. I don't think you can shortcut the process by going back a step to the "draft of a motion" without asking for the employer's consent.
10.4.2007 3:34pm
Virginia:
I think it's o.k. to use something from the firm as long as you (1) remove all client-identifying information and any privileged matter, and (2) use a draft that is entirely your own work, without any edits by partners or other associates.
10.4.2007 3:37pm
lawstudent:
Your firm should have a policy that governs this, and if there is a way to get your hands on that policy without letting anyone know you are considering a move, do it. My firm, for example, has a page on the firm's intranet that contains all the firm's policies, including those on what papers an attorney may take with her when she leaves, which seems to me somewhat akin to the situation you are in.
10.4.2007 3:40pm
Steve:
I think virtually everything is fair game to use as a writing sample as long as you redact all potentially identifying information. Actually, I think it's kind of funny that people religiously redact all the names even when it's a publicly filed document, but that's the convention.

People want to see a writing sample that is your work product, by which I mean it's ok if it's 90% your work and 10% revisions by some partner, but not if it's substantially rewritten by someone else. Obviously, you're on the honor system here.

If there's an earlier draft that is 100% your own creation, and that's what you want to use, I can't imagine anyone having a problem with it. As far as the issue of the signature line, by the way, I don't see any reason you have to leave the signature block in your writing sample at all. I've seen plenty that simply ended with "Respectfully submitted."

Three final tips, which might be a little off-topic:

1. People want to see a writing sample that looks like something a practicing lawyer would write. Thus, seminar papers and the like are a bad idea anyway.

2. 5-7 pages seems about the right length. Of course, you could give them a 40-page brief and just leave it to them to stop when they get bored, but it's offputting for some reason.

3. If you're a good writer, you want to try and use something that showcases your ability with language. Something with a good statement of facts or preliminary statement shows that you have the ability to tell a story and catch the reader's attention. You won't make much of an impression with several pages of boilerplate and string cites regarding the summary judgment standard.

Oh, and proofread, of course. Even a single typo in the writing sample can kill you.
10.4.2007 3:42pm
TerrencePhilip:
I think virtually everything is fair game to use as a writing sample as long as you redact all potentially identifying information.

I agree with that. One thing I did which I now wonder about though, was citing in my resume to two or three opinions from my clerkship which were all or almost entirely my writing (of course I phrased it a little more diplomatically), and which I considered a good product.
10.4.2007 3:48pm
Bruce:
I don't think permission is necessary to use a publicly filed document -- with the caveat that if it was some sort of sensitive matter that has managed to stay below the radar, that would be an exception. On the "signature line" issue, if the associate's name is in the signature *block* I don't see the problem if it's just the case that someone else signed it. That happens all the time, sometimes it just depends on who is physically present and has a pen at the time of filing. I think other lawyers will understand. Obviously if anyone else edited, or even worse contributed to the brief that should be noted.

Like the e-mailer, I would be hesitant to use anything internal without an OK from someone, even redacting some information. You never know what you might miss, or what someone else might figure out. Also, a client paid for the privilege of getting that work done specifically for them. Maybe if it was some sort of nonbillable project or deep background research that would be different, but anything done on a particular client matter strikes me as trouble.
10.4.2007 3:59pm
Wallace:
When I clerked, I saved my final draft of the judge's opinion under a different file before handing it off to someone else for editing or to my judge for approval. I then used the draft as a writing sample and noted that this was the final draft before it was edited or docketed.

Also, I started temporary jobs like summer associate positions or clerkships by asking if it would be okay to use drafts as writing samples for the future. Geting pre-emptive permission saves the awkward moment of asking your summer firm if you can send a draft you created on their time to another firm you'd rather work for.
10.4.2007 4:01pm
andy (mail) (www):
I would not, as you say, use internal memoranda unless explicit permission is given. Regarding, publicly filed documents, the problem is that firms (presumably) know that lots of different people work on those documents and the view that the work product is solely yours may be met with skepticism.

I think you should use something from law school, with a cover letter noting that you wrote this while a law student and that, while the views espoused in your paper are not be directly relevant to your candidacy, the paper will allow the new firm to judge your writing ability/style.

If your papers are truly incendiary (e.g. "gays should get no rights" or "abortion sends one to hell"), then of course do not use them, but if you have written a scholarly piece for a law school seminar, I assume that your position is intellectually defensible.
10.4.2007 4:11pm
Waldensian (mail):
I wouldn't think twice about using something that was publicly filed (with the caveat mentioned above, i.e., something sensitive that had stayed off the radar screen). I'm not sure I would use anything else without express permission of the firm and client, or obvious compliance with a firm policy, just to be on the safe side.

I interview associate candidates a lot. If a candidate hands me a filed brief and tells me he or she wrote it, with perhaps minimal editing, that is fine. I wouldn't give a flip who signed it.
10.4.2007 4:13pm
Steve:
I interview associate candidates a lot. If a candidate hands me a filed brief and tells me he or she wrote it, with perhaps minimal editing, that is fine. I wouldn't give a flip who signed it.

I interview lots of people, and that's how I feel as well.

I hate seeing stuff from law school. Your seminar paper is meaningless to me.

If you're a first or second-year associate, I understand you may not be able to point to a filed document that you principally wrote yourself. If you want to give me the earlier draft that you wrote yourself, that's 100% fine with me. If you want to give me an internal research memorandum that you wrote yourself, that's also fine, although it's not very useful if it's little more than a collection of string cites.

I imagine there's some ethical issue in using internal memoranda but really, it's not much of a concern to me. It's one thing to take a firm's internal work product and use it to further the business of a competitor; it's another thing to simply use it to get yourself a job. The reason why firms often restrict you from taking certain information is that they don't want you to join a competitor and hold yourself out as an expert in whatever area of law you practiced in with them, using the fruits of your research and writing in furtherance of your practice. Interviewing is really a completely different subject.
10.4.2007 4:20pm
Jason F:
I'll just add that I hope that after two years in practice, your writing has improved. For that reason alone, I wouldn't use a law school seminar paper as a writing sample.
10.4.2007 4:35pm
Anderson (mail):
Like Wallace, I used opinions from my clerkship, w/out IIRC asking the justice in question. I think I used the opinions, however, because they were printed pretty much verbatim.

Re: the question in the post, I would use a memorandum filed with the court, as suggested. I don't see the need to redact anything not otherwise sensitive (HIPAA stuff, for ex), if it was filed with the court (and not just sent to the judge's chambers). Public is public.
10.4.2007 4:40pm
Nonplussed (mail):
Here's the solution to all your problems: Get out of the legal profession. You will never be happy.
10.4.2007 4:49pm
RL:
I'm surprised to hear that former clerks are using opinions as their writing samples. I know this is considered incredibly bad form in some circles. Some judges, including my own, won't even let clerks and interns say that they "drafted opinions" on their resumes. My judge told us to write, "Participated in the drafting and editing of opinions."

As for writing samples, I was lucky to have a few briefs with my own name on the signature line pretty early on. They were all my own work too. When I switched jobs as a second-year, I used one of them as is, no redactions, since it was in the public domain already. A partner proofed it before it was filed, but I don't think that is cheating. Who would be crazy enough to submit a writing sample that was not proofread by someone else?
10.4.2007 5:00pm
AK (mail):
Interesting that we've gotten this far in the discussion without the word "copyright" coming up. We're lawyers here, right?

Who owns the copyright in anything that you produce while doing work for the client? Either the client or the firm, and I suppose it's a debatable issue depending on the language of the contract for the firm's services. But the best answer is "not you." That writing belongs to someone else who may control its use and reproduction.

Don't use the property of others without their permission. It's unethical, and I don't want unethical lawyers working for me.
10.4.2007 5:08pm
GV_:
I would never use an opinion I drafted as a clerk, even if I wrote every single word of it. I would, however, use an internal firm memo that I wrote as a writing sample. Instead of redacting, I would simply replace all names with fake ones and change the facts so that nobody reading it could figure out the original fact pattern. (Of course, I would make sure the facts were similiar enough so the legal analysis would apply.) I would not use motions I've written simply because they are usually more heavily edited (and IMO, for the worse! ;).
10.4.2007 5:22pm
Kazinski:
I think you are off base there AK, I would come under "fair use" when it is just used as a writing sample. And of course if it is a public document, as many of the posters are recommending, then it is not an issue at all. I could publish a book of public legal documents without anyone's permission of having to pay royalties.
10.4.2007 5:23pm
Former Law Review Editor:
AK-

There is no copyright in publicly filed documents. Lawyers lift, verbatim, from prior pleadings, even from their opponents, all the time.
10.4.2007 5:24pm
Jiffy:
It never would have crossed my mind to take any credit for opinions I drafted as a judicial clerk, much less offer them as samples of my own writing (even if they were). I've seen it a few times from applicants and find it very off-putting.
10.4.2007 5:37pm
I.I (mail) (www):
I don't see how copyright or the question of intellectual property rights applies at all. The writing sample is not going to be republished, profited from, or in any way detract from or compete with the originally intended uses of the document. Although writing samples for job interviews aren't explicitly mentioned in most lists of fair use examples, the underlying philosophy behind the idea of fair use obviously applies.

Remember too that copyright is entirely a creature of statute; there is no such thing as malum in se when dealing with questions of intellectual property. AK's "I don't want unethical lawyers working for me" seems either overblown or fuzzy on principles.
10.4.2007 5:44pm
TerrencePhilip:
Was it Milberg Weiss that tried copyrighting its complaints, to prevent me-too suits from other firms?
10.4.2007 5:50pm
Michael Barclay (mail):
Two points:

1. I agree with Waldensian and Steve. Using a publicly-filed document is fine, especially if it's available on PACER/ECF. I would never use an internal document or a draft, that could result in an argument by an adversary that the firm's work product and/or the client's privilege has been waived.

2. I disagree with AK as have many others. Giving a prospective employer a single copy of a publicly-available brief for the purposes of job interviewing can't possibly implicate the copyright laws. I download briefs from PACER/ECF all the time — is it copyright infringement for me to read public records?
10.4.2007 6:00pm
Justin Levine:
As long as you can honestly say that you were the actual author - EVERYTHING is fair game. I think people are overthinking this way too much and ascribing a ridiculous IP/'moral rights' scheme to a writing sample that is simply used to illustrate that somebody can write.
10.4.2007 6:04pm
Wahoowa:
TerrencePhilip: that sounds very Milberg Weiss-ian.
10.4.2007 6:07pm
Steve:
Mind you, Milberg's competitors really DID rip off their complaints time and time again. While a publicly-filed document may be fair game, it's a bit much to make this your business model, and there seems to be a Rule 11 issue in making an allegation with no other basis than that Milberg Weiss alleged it.
10.4.2007 6:16pm
fat tony (mail):
To Whom It May Concern:

Enclosed as a writing sample is a piece that was published on The Volokh Conspiracy, a well-regarded legal blog....
10.4.2007 6:47pm
Carolina:
As many others have said, I can't see any problem with using a publicly filed document, absent unusual circumstances such as salacious allegations against your client or the like.
10.4.2007 6:51pm
Christopher Cooke (mail):
I would think it okay to use a brief that has been filed in court and which is not under seal, and for you to acknowledge that others reviewed and/or edited the work. I don't see any client confidentiality/secrets issues if the brief is publicly available and, as for authorship, you simply need to disclose that others were involved in the drafting and editing process.

As a former federal law clerk (district court), I would never use an opinion that I had helped to draft for a judge as a writing sample, although the judge's secretary gave me a copyset of everything I helped to draft. I think it is in very bad form, putting aside the other issues, to take credit for the judge's opinion in this manner. I also think the caveat on the resume, insisted on by the judge that is described above, is entirely appropriate. I had on my resume something like "assisted the Court in researching legal issues and issuing opinions" and I left it vague what "assisted" meant. Of course, ex-clerks know, especially if they are familiar with your judge, what type of role you likely played (e.g., Posner drafts his own opinions, and that is well known, while other judges rarely draft the opinions and are not heavy editors).

I agree with others about not using law school articles. First, the writing sample is not a recent one. Second, your writing has likely improved. Eugene, I am curious what your thoughts are?
10.4.2007 6:53pm
AF:
Incidentally, it's not clear to me that a publicly filed document loses all copyright protection. The blanket exemption for public documents applies on its face only to works of the United States Government. 17 USC 105.
Clearly, however, using a brief you wrote as a writing sample is fair use.
10.4.2007 7:16pm
Constitutional Crisis (mail):
There was a case recently, cited on this blog I believe, where a lawyer was sanctioned for plagiarism. Somewhat different, but interesting as an analog.

I would never take credit for something written as a clerk. In fact, I feel so strongly about it, that I would never even tell people that I had written a particular draft. Chambers is like Las Vegas to me...
10.4.2007 7:26pm
visitor from Texas (mail) (www):

Who owns the copyright in anything that you produce while doing work for the client? Either the client or the firm,


Someone is going to chime in with the difference between a work for hire and a work.

Needless to say, free advice is worth what you pay for it, isn't it?
10.4.2007 7:26pm
Public_Defender (mail):
Early, non-filed drafts are subject to the work product privilege, and you don't have the right to waive that on behalf of your firm or your client. I'll defer to others on whether it is common practice in big firms to use such drafts, but it sounds fishy to me.

I'd just use the final version and explain that it was your work. If they don't trust you enough to take your word, they shouldn't hire you.

If your firm has a policy about taking firm documents or using firm resources, just go to the clerk and get a file-stamped copy.
10.4.2007 7:50pm
AK (mail):

Someone is going to chime in with the difference between a work for hire and a work.


I don't know if a legal writing done for a client consitutes a "work for hire" under the statute, but even if it does I don't think it makes a difference here.

I agree that except for perhaps a few fairly absurd examples, filed documents lose copyright protection. (Filing an original manuscript as an exhibit in a copyright infringement case, for example). I never contended otherwise. I said "don't use the property of others without their permission." Absent extraordinary circumstances, a filed document is no one's property. Lawyers create any number of documents that can neither be classified as "internal memos" or "publicly filed documents." In the past six months I have drafted a position paper for a software company and a privacy policy for a bank's website. They're not publicly filed in the sense that a complaint or brief is, but I still would never use either without permission.

I love the assertions that fair use "clearly" and "obviously" applies, without further argument. Whenever you see "clearly" or "obviously" in an opponent's memorandum, circle it, because it's their weakest point. I'm not going to get too deep into it, but it's far from clear and obvious that the for-profit nature of the use - you're trying to get a job - satisfies the "nature and character of the use" inquiry in your favor.
10.4.2007 8:01pm
AF:
An attorney's ethical duty of confidentiality to his client is much broader than the work-product privilege. It applies to all "information relating to the representation of a client."
10.4.2007 8:07pm
AF:
AK: Using your own court papers as a writing sample is clearly fair use because it is for the fair purpose of informing others of your writing abilities (factor one), the copyrighted material is both published and not very original (factor two), and it has no effect on the market for the copyright (factor four). If you think this is a controversial question, please cite an example in which someone was successfully sued for copyright infringement for using as a writing sample a work that they created.

If you think that "the for-profit nature of the use" weighs significantly against fair use regardless of context, please read this case.
10.4.2007 8:28pm
Anderson (mail):
I think the clerk-written-opinions issue depends on where you're clerking, the judge, etc. In my sleepy Southern state, the justices are not prone to pretend that they are writing their own opinions when they know better, and know that the lawyers know better.

OTOH, I misremembered what I actually did when I applied around. I used a moot-court brief I'd written in law school, and provided a list of the opinions I'd "drafted."
10.4.2007 10:04pm
Public_Defender (mail):
Wow. All this back and forth to get to the obvious result even this criminal defense lawyer can grasp. No law firm will sue you for going to the clerk's office and photocopying a non-sealed pleading that you wrote to use as a writing sample even if your name wasn't on it.

If some firm were stupid enough to do that, they'd be laughed out of court.

So go to the clerk's office. Make a copy. Make a thousand copies if you want. Post them on the internet. Read them into mp3's and upload them into the file sharing program of your choice. Post them on Facebook. Email copies to the RIAA and the MPAA. It doesn't matter.
10.4.2007 10:11pm
Paul Karl Lukacs (mail) (www):
The most effective writing sample from a junior litigation associate is a successful Opposition to a non-dispositive motion. This type of document is likely to have been substantially researched and drafted by the associate under real-world time and resource pressures. A typo or two shouldn't matter, because real filings have typos. Attach a copy of the Minute Order showing that you won.

Flight of fancy: What do transactional attorneys use as writing smaples?
10.4.2007 11:29pm
Paul Karl Lukacs (mail) (www):
"smaples"

Real world typo!
10.4.2007 11:30pm
Bruce Hayden (mail) (www):
Former Law Review Editor:
There is no copyright in publicly filed documents. Lawyers lift, verbatim, from prior pleadings, even from their opponents, all the time.
Hope you didn't edit an IP journal. You are conflating a bunch of different things, in particular, the difference between infringement and litigation claiming infringement. If you don't register the work in time, copyright owners don't get attorneys' fees, and thus you are faced with potentially hundreds of thousands of dollars of litigation costs for what? You are stuck with actual damages, which are inevitably much lower than the litigation costs of the infringement suit. So, the fact that no one sues over this sort of thing only means that it isn't economically worthwhile do to so, and not that there isn't infringement.

The reality is that publication has almost nothing to do with the existence of copyright. Copyright is essentially automatic, unless it is a U.S. government work (presumably including the draft opinions mentioned above, if done for a federal judge at some level). Copyright attaches upon creation of original expression.

That said, the Fair Use argument has merit. While Fair Use requires a statutory balancing test, I would expect that the balance would likely usually come out in favor of Fair Use.

Oh, and most likely the copyright is owned by the law firm or other employing entity (with the exception of the U.S. govt., where there isn't a copyright). Most legal work won't fall under the Work for Hire exceptions that allow for the copyright to go to the contracting party AND an assignment or exclusive license requires a signed writing to that effect.
10.4.2007 11:40pm
David M. Nieporent (www):
I'm not going to get too deep into it, but it's far from clear and obvious that the for-profit nature of the use - you're trying to get a job - satisfies the "nature and character of the use" inquiry in your favor.
Putting aside the fact that you're not trying to profit from the work, which is the relevant factor for copyright purposes, you don't need to "satisfy" the "nature and character of the use" inquiry. It's just a factor to consider, not a requirement that needs to be satisfied.

And the most important of the four factors is the effect on the market for the work -- here, none at all.
10.4.2007 11:49pm
Dave Hardy (mail) (www):
I assume that since the documents were prepared by a junior associate, albeit signed by a partner, the client was only billed the junior associate's hourly rate?
10.5.2007 1:08am
GV_:
Regarding possibly waiving privilege, wouldn't altering your memo suffice? (I.e., changing the facts, etc.)
10.5.2007 10:41am
retr2327 (mail):
I won't claim to know the "right" answer here. But what I find interesting is that people cling strongly to conflicting opinions. In practice, this seems to mean that whatever an applicant does is likely to result in a significant percentage of employers eliminating him for it, even though other employers would have eliminated him for not doing it. Wonderful!

That aside, I find it surprising how many respondents don't have a problem with "minor editing" by others on the writing sample. To me, that would be the most objectionable.
10.5.2007 5:55pm
Wow, these are lawyers?:
Come on attorneys, up the proficinecy level here! (Echoing Bruce Hayden on (c) and AF on priv AND confidentiality) Copyright arises automatically in almost every writing instantaneously, and can't somehow be "lost" by filing a copy somewhere, govt. works BY govt. employees being a notable, and noted, excption. Copyright of works made in the course of a "normal" employer/employee relationship (like between an associate and her firm) are owned by the employer AS A MATTER OF LAW without further formalities even necessary. (Contractors/partners, sole practitioners and "abnormal" employment relationships may well find the 'work made for hire' contract exceptions and assignment language apply.) Fair use (particluarly such a transformative, non-market-impacting use) will likely be a defense that excuses the infringement, but let's not kid ourselves - someone ELSE's copyright exists and is likely infringed.
Independent of copyright, duties of client confidentiality and preservation of privilege exist. Goood lawyers respect those duties scrupulously. Go look up who can waive those duties - hint - it's not the lawyer acting unilaterally. Stellar skills from extensive priv. log experience might mean you can readily identify and redact all the confidential and privileged information, but that doesn't get around the fact that the work is still likely work-product privileged. Again, who waives that? At the end of the day, 2nd Year Associate is likely left with using only publicly filed documents that the client has authorized the filing of, and explaining to Prospective employer that "notwithstanding the name on the brief, I wrote this."
10.5.2007 6:30pm
Stash:
I won't expound on copyright, but is it really true that a guy from "creative" in an ad agency can't put copies of his published artwork in his portfolio when looking for a job because of copyright? Second, if it is a work for hire, isn't it the client who has a proprietary right in it? (He's certainly entitled to his file, including all memos, which he may freely copy and disclose). He may waive work product over the firm's objection. By doing so does he infringe on the firm's copyright? Or does the lawfirm violate copyright by copying the work into a brief bank/memo file and reusing the research/analysis for the commercial purpose of making money from other clients? If so, I smell a big class action. Alternatively, isn't it a breach of fiduciary duty for the firm to claim a profit in the form of copyrights obtained in the course of its agency?

But looking at state law the questions are whether (1) it is a misappropriation of information under state law, or (2) if it transgress any ethical duties.

These questions are related. What class of information is it a breach of fiduciary duty to disclose? Generally, this extends only to genuinely "confidential information" whether that confidentiality is created by trade secret, contract or other source. A former employee is usually free to use any information that is a matter of "skill or experience." Hence, the fact that one billed for one's research on an issue, and then uses the knowledge and citations gained to write a law review article on the subject is not any kind of taking from one's employer or client. So, certainly the ideas and legal analysis contained in any internal memo and certainly any filed matter, cannot be protected from future use by the former employee. In future employment the employee is free to replicate the previous legal analysis without restriction. But what about the physical embodiment?

Sometimes a misappropriation will be deemed wrongful if a physical manifestation of the alleged protected information is taken, rather than the fact that some things merely stick in an employee’s memory, thus constituting mere “experience.” But this is only one factor.

Part of it would depend on what is in the memo. If it merely answered a pure legal question, e.g., "what are the factors that Federal Courts use in determining state statutes of limitations that are borrowed for X type of actions?" it is hard to see why this would be a misappropriation. Yes, this type of memo would be opinion work product and absolutely protected from discovery. But this information is merely privileged from discovery in litigation; it is not confidential in the sense of a client confidence or secret business information that provides a competitive advantage to the firm. It is easily replicable (indeed, that is one of the major reasons why it is not discoverable—to prevent free ridership on one’s work by the opposition) and, unlike client confidences, the work may be freely used by the firm to benefit other clients.

Of course, it should not be disclosed to the firm on the other side of the litigation, nor in any situation where disclosure could cause harm to the client. Note that these are client interests, not interests of the firm. As noted, a client could waive work product privilege over the objections of the firm. Yet the firm—or the former employee—may freely use the analysis to benefit other clients. Since the former employee is free to use the entire substance of the legal information and analysis in the memorandum in his future employment, any restriction on the physical embodiment as a right of the firm is petty at best. Certainly, if the litigation is concluded, there can be no interest the former employer or client would have in preventing disclosure. So in this extreme case, I would say that there is nothing wrong with using this memo as a writing sample, so long as the client matter for which it was prepared is undisclosed. Again, this is a client interest, not a firm interest. So it seems to me that, at the least, any memo involving any concluded matter without client-sensitive information is fair game. It cannot prejudice the client by working a waiver of work product or otherwise adversely affecting the client. Furthermore, any properly redacted memo would also seem to fall within this category.

Secondly, I think there is some privilege under state law. If writing samples are generally required to obtain legal jobs, an unreasonable restriction on exhibiting one’s work may be a restraint of trade. To be valid, any restriction on writing samples would have to be reasonably tailored to protect the interests intended without being overbroad. A blanket prohibition would seem to fall into this category. Faced with this question, I think a court would have to balance the interests. And, where no harm or potential harm could be shown, it would have to side with the employee.

Finally, as far as I know, the canons of ethics do not address work product privilege, per se. It is not a client confidence or secret. Again, unlike these, the firm is free to profit from its work product on another case. Indeed, this is how specialties are born. The only ethical issue, as I see it, is if disclosure of the memo harms or can potentially harm a client. If it cannot, then I see no barrier to disclosure.
10.6.2007 2:23pm
Peter B. Nordberg (mail) (www):
Use a publicly filed brief (one that was edited only very lightly, or not at all, by others), and explain the situation to your prospective employer -- to whom it will probably be quite familiar. In all likelihood, nobody will care that your name doesn't appear on the brief. Almost everyone understands that some firms do not list associates on their briefs, even where the associate is the sole or principal author. Be aware, however, that your authorship may be verified in the final reference check. Also, pick a nondefamatory sample (because in some jurisdictions, at least, the fact that a brief was filed with the court does not insulate you from defamation liability for out-of-court republication of its content).

Do not use an internal firm memo. Not only may doing so violate client confidentiality; the interviewer may well think it's simply bad form, for you to be disseminating the firm's internal work product.
10.7.2007 1:26am
肿瘤 (mail):
10.7.2007 11:51pm