When Recruiting Becomes Misrepresentation

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Published 09/20/2010

In a previous column, I wrote about a Texas lawyer who successfully sued his new firm (All the right moves?, alleging that he was “lured” away as a lateral hire from his previous firm only to conclude that his new firm had misrepresented its prospects and environment.

Two recent legal developments suggest that such disputes will become more likely in today’s uncertain business climate for law firms:

  • A recent law school graduate filed a suit in San Francisco Superior Court against a firm that extended her an offer of employment, deferred it and then withdrew it, saying it didn’t have the resources to hire anyone in the near future. Among the counts alleged in the litigation are racial discrimination, sex discrimination and breach of contract.
  • A major player in the IP field announced that it was calling off its merger plans with another IP firm, ostensibly because of client conflicts of interest. However, at the same time, the firm (1) announced firings/terminations/layoffs (say it anyway you want) of lawyers and staff due to a downturn in patent litigation, and (2) announced the hiring of first-year lawyers due to an increase in patent counseling and reexamination work. From the outside, at least, it looks like the firm disposed of higher-priced, experienced (translation: older) lawyers to hire lower-priced, younger ones. When industry does that, it’s called age discrimination.

With the reduction in number of clients and matters and the slower payments that are inescapable in a recession, the financial and economic difficulties many firms face are substantial. Less tangible — yet a very real problem — is that the result of all this fear and uncertainty is stress, and that stress often can lead to anger and hostility toward the organization itself.

If law firms are to avoid negative consequences of such hostility in court, they must do a better job of making hiring decisions to reflect economic reality and the employment laws.

But law firms aren’t the only organizations with potential problems over recruiting practices. Law schools may be next on the list. In early August, the ABA Journal reported an unemployed law school graduate’s hunger strike aimed at prodding law schools to be more open and honest about hiring prospects when they recruit students to enroll.

The hunger striker proclaimed on a blog, www.unemployedjd.com, that major law schools should comply with a request for detailed job statistics by a new group calling itself Law School Transparency. The goal is to save law school students from shelling out several hundred thousand dollars for a law degree that these days has vastly decreased economic value.

There has been controversy over the striker’s seriousness, but the problem is definitely real. The law school ranking “scam” that we have discussed previously — trying harder than ever to get high rankings in the annual surveys in order to recruit more law school students at a time when demand for attorneys is falling — will have consequences for the schools, in lower enrollment, if not in actual litigation.

The anger and hostility aimed at disingenuous legal employers could just as quickly be turned on the hallowed halls of America’s 200 top law schools.

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