6 Key Considerations When Moving from Government to Private Practice

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.

INTEGRATION:

Major, Lindsey & Africa’s most recent Lateral Partner Satisfaction Survey confirmed once again the findings of our 2005 and 2009 Surveys, that (not surprisingly) integration is the single most important predictor of a lateral partner’s happiness and ultimate success. This is no less true for lawyers moving from public service to private practice — indeed, if anything, it is even more critical.

In the same way that an individual compiles a business plan showing how they intend to grow a practice, the law firm should compile its own business plan for a government candidate once discussions are advanced. That plan should include details on both internal and external efforts to “sell” the new lawyer — to other partners of the firm (and their clients) and to current and potential outside clients.

In one instance, a firm in the latter stages of its interview process gave the lateral a list of ten clients the firm would introduce her to, and listed the partners who would make those introductions. (It is important to have each of those partners affirmatively sign on to the plan — in blood — lest the plan end up being nothing more than aspirational. Too often there is a detailed plan but zero implementation, weak follow-up, and limited accountability.) The more specifics that can be provided, the more real it is and the more likely it is to be successful.

The most successful integration efforts, in our experience, have an individual sponsor assigned to the new lateral. Typically it is a partner who fought for his or her hiring and is now willing to be held responsible (at least in part) for their success. The sponsor’s compensation, ideally, should be directly impacted — positively or negatively — by the lateral’s success or lack thereof.

Every integration plan must also have a named individual responsible for each element of the plan, with timetables for completion of each phase of the plan. If a firm is not adept at the process, it should consider engaging one of the several specialized consultants who now focus entirely on devising and implementing lateral integration plans.

WHO’S HOT:

My colleagues at Major, Lindsey & Africa and I have placed nationally prominent state governors, high level officials from nearly every government agency including cabinet officers. The most intense demand continues to be for Assistant U.S. Attorneys who have headed the securities fraud unit in the Southern or Eastern Districts of New York, FCPA and antitrust bigwigs from DOJ, and senior SEC enforcement attorneys. The newest flavor of the month is the CFTC, due in part to its enhanced role in the regulation of financial institutions under Dodd-Frank. With greatly increased enforcement activity by the attorneys general of various states, high level alumni/ae of those offices are also in greater demand than was the case in the past.

CONCLUSION:

Government service can be the highest calling, sacrificing short-term financial gain in order to give public service while gaining invaluable experience. Often it is an opportunity for a relatively junior lawyer to have enormous responsibility and try significant cases they could never hope to first-chair in private practice. The bonds formed with others “in the trenches” day to day often last a lifetime. But when the time comes to return to more gainful employment (often when growing family obligations become difficult to meet on a government salary) it is vital — for both the individual and the law firm they join — to do so in a way most likely to yield a successful long-term result. This involves both choosing the firm that provides right platform, with a congenial and supportive culture, and having the firm committed to integrating the new lawyer into the fabric and business of the firm.

Jon Lindsey is the New York founding partner of Major, Lindsey & Africa, a legal search consulting firm with 22 offices around the world. He has been a recruiter for 25 years and previously practiced with Debevoise & Plimpton, as an Assistant U.S. Attorney in the Southern District of New York, and with the New York City Planning Commission.

Editor’s Note: This article is written by the New York founding partner of legal recruiting agency Major, Lindsey & Africa.