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.