Jeanne Fromer (NYU) & Mark Lemley (Stanford): State Supreme Courts Can Resolve Early Legal Recruiting Mess (Bloomberg Law)
Law firms now hire people for summer jobs 18 months in advance; in practice, they are hiring first-semester 1Ls for full-time jobs that won’t start for almost three years.
State supreme courts can help fix this situation. They should amend their rules of professional responsibility to reverse this trend and its harmful effects.
Early recruiting can also force students entering law school without established networks or legal experience to make high-stakes career decisions with limited information and under time pressure. The lack of grades or faculty reviews favors those who come to law school with existing connections and knowledge, potentially shutting out underprivileged, first-generation, and other students whose experience and backgrounds don’t include familiarity and exposure to the law firm markets. And the shortened timeline can discourage students from seriously considering public interest or government career opportunities.
The early recruiting process can also lead to law firms making hires with little information about students, increasing the risk of mismatched hiring decisions, greater rates of reneging, dissatisfaction, and earlier attrition. And it means that the point of law school—learning to think and act like a lawyer—gets lost in the shuffle.
Students, schools, and firms recognize how disruptive the early recruiting process is. In January, student associations and governments from 18 law schools shared their concerns in a joint letter to the American Bar Association. But collective action problems and concerns about antitrust liability have thus far precluded efforts to address early recruiting’s downsides.
It is possible—and imperative—to rein in law firms’ accelerated hiring process. State supreme courts can do this through a modest amendment to their rules of professional responsibility. State courts have the power to oversee the admission, discipline, and ethical obligations of lawyers practicing within their jurisdiction. Early recruiting practices implicate the conduct of attorneys involved in those practices, as well as the integrity of the legal profession. By leveraging their existing disciplinary systems to investigate and punish rule violations, state courts can ensure that attorneys and their firms abide by the rules.
We propose that state supreme courts amend their rules of professional conduct to impose a uniform “hold open” date for offers until Oct. 1 of students’ 2L year for 2L summer positions. These new rules could make it a violation for members of a state’s bar to participate in interviews or other recruiting activities if any offer resulting from that activity doesn’t comply with the “hold open” date, or if any reward or incentive is offered to a student to accept an offer before the date. These are minimally restrictive measures with outsized potential benefits, and they provide the simplest and most realistic reform strategy to prevent harmful early recruiting.
Such an approach is legal. Unlike firms or schools agreeing together, court action is immune from federal antitrust laws. As the US Supreme Court stated in Bates v. State Bar of Arizona , because a court is “the ultimate body wielding the State’s power over the practice of law” and its rules are “the affirmative command” of the court, any restraints in a court’s rules are “compelled by direction of the State acting as a sovereign.”
