Q:  I currently work as a staff attorney for several family court judges and have just started the process of looking for a job with a law firm that primarily practices family law.  Much of the work I do involves drafting bench memoranda. Almost everything I write is confidential. I am concerned that I will not be permitted to use any of the bench memoranda as writing samples.  Do you have any suggestions?

Bethany from Maine

A: Dear Bethany

The question you raise applies not only to attorneys who work for judges (such as staff attorneys and law clerks), but anytime an attorney or law student seeks to use a writing sample that contains privileged or confidential information.

There are several possible solutions.  The best way to identify which is right for you is to start with the underlying purpose of a writing sample, which in most cases is to demonstrate your ability to write cogently about a legal issue that is relevant to the job you are seeking.  Thus, for example, in the litigation context, your best bet is to select a writing sample that demonstrates high-level legal analysis. And legal memoranda, which are analytical by nature, therefore often make better writing samples than briefs.

Begin therefore by identifying the legal analysis that would be most relevant and impressive to potential employers.  Then determine whether you can delete the information that makes it privileged or confidential.  For example, you may need to delete or alter the names of the parties.

In addition consider using an excerpt of the original document. Too often applicants send a complete brief or legal memorandum. Don’t make the reader expend energy to find that portion of the writing sample that is most relevant.  A good and focused five-page writing sample will serve you better than a meandering 20-page document. Send the relevant excerpt.  Just make clear in the cover to the writing sample what changes you have made to the document (e.g., privileged information has been deleted, procedural information has been omitted, this is one of several arguments made in an opposition to a motion for summary judgment).  Not only does this make it easier for you to impress the employer with your writing ability, it also demonstrates thoroughness and sensitivity to confidentiality-related issues that virtually every legal employer appreciates.

Using a redacted or excerpt is often sufficient to address confidentiality concerns in writing samples.  But in your case, Bethany, this may not be sufficient.  Courts and judges may have specific guidelines about how writing samples may be used, and they may not permit law clerks to identify the cases on which they worked, let alone use a writing sample from one of those cases. Thus, you should consider getting permission from a specific judge or other appropriate authority before using a writing sample (redacted or not). Likewise, other attorneys such as those working at firms, non-profits, or in-house should also consider getting advance permission to use a writing sample. This can be especially effective if the person who can authorize you to use the writing sample can also act as a reference.

But seeking advance permission to use a writing sample raises two significant potential problems.  First, you might not want to alert the employer that you are looking for a job.  Second, the employer may deny you permission to use the writing sample.  So what do you do if you decide that it is impractical or undesirable to seek advance permission, or if permission is not granted?

The answer: create a writing sample that is separate and distinct from anything you have actually created on the job or as a law student. After all, the purpose of the writing sample is to demonstrate your current ability to write. 

Bethany, I of course don’t know whether the judges you work for will agree to allow you to use a redacted document, or whether you should even alert them that you are looking for a new position. But my instincts are that you may need to create a new document.  This is not to say that you can’t be efficient and revisit some of the issues you have already addressed.  For example, you might create hypothetical facts for a legal memorandum that will allow you to take advantage of the research and related work you have already conducted.

Creating a new writing sample can help a wide array of attorneys (and law students), not just those who might be prevented from using a document they drafted on the job.  For example, a law student who has written nothing since their your first-year legal writing class (or whose grades are disappointing) might significantly enhance their chances of getting a new job by drafting a writing sample that is specifically designed to impress a particular group of potential employers.  Similarly, a practicing attorney whose written work product is edited by others should consider creating a writing sample that is specifically tailored to their job search.

This strategy can also be an important tool for attorneys seeking to make career transitions in and outside the practice of law. For example, an attorney who has exclusively worked on insurance coverage work might draft a document analyzing a current business tort issue to enhance their application for business litigation positions. Likewise, I recently suggested that a client who was seeking to transfer to a public relations position draft a document that analyzed a current public relations/communications issue. Creating a new writing sample can be a good strategy for any position in which the ability to write is an important skill.

Creating a new writing sample does take time and effort.  It is not required in many cases. But it should provide some comfort to know that you are not trapped and have a viable option if you don’t have, or for some reason can’t use, an existing writing sample. 

Bethany, I hope this advice proves useful. Good luck transitioning to a family law practice.

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