Posted by Eugene Volokh:
Ethics of Writing Samples:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191522154
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.
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