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law | opinions & advice | miscellaneous
Life as a Lawyer
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The field of law has numerous subdivisions and you can take your JD down a variety of avenues.
Following are descriptions of four common types of practice: bankruptcy lawyer, corporate lawyer, public defender and plaintiffs' counsel.
Bankruptcy is more than simply a series of hearings before a bankruptcy judge. It's a court–managed transactional process, with every transactional decision having a litigation counterpart, and vice versa. Appropriately, bankruptcy attorneys get to play both sides of the fence, all along counseling their clients on the impact of the Code on their business decisions. And within the transactional and litigation worlds, every area of law is touched upon.
Among the most common roles that a bankruptcy attorney plays are:
It's no surprise that in many law firms, the bankruptcy group is a sub-section of the litigation practice. Bankruptcy is a courtroom process, with a bankruptcy judge overseeing each bankruptcy proceeding and approving all major debtor–and some creditor–business decisions. A bankruptcy attorney spends much of her time in court, arguing for or against debtor and creditor motions and often participating in full–scale trials.
In Chapter 11 cases, where the debtor continues operating as a "going concern," a primary focus of the weeks before and immediately after the bankruptcy filing is negotiating "debtor–in–possession"–or DIP–financing. These loans provide debtors with their financial lifelines, provide bankrupt corporations with sufficient funds to keep their doors open (or at least close them very slowly and carefully). Bankruptcy attorneys negotiate and draft these DIP financing agreements, fluent in the provisions of the Code and case law governing these facilities.
Mergers and acquisitions attorney
Chapter 7 and many Chapter 11 cases revolve around asset sales, often of the entire business of the debtor. At some firms, bankruptcy attorneys work hand–in–hand with m&a attorneys in creating auctions processes (yep, you heard that–auctions, often complete with gavels) and negotiating and closing these sales; More often, the bankruptcy attorney performs all of the m&a work, including negotiating and drafting relevant purchase and ancillary agreements and overseeing the sale closings. And in all situations, it is the bankruptcy attorneys who request (and hopefully secure) the court's approval of these sales.
Labor and employment
Bankruptcies involve businesses, and businesses have employees. Bankruptcy attorneys provide counsel in communicating with a debtor's labor force, complying with federal and state laws, and stand on the front lines of negotiations of, and disputes about, employee severance and retention programs.
Uniform Commercial Code/Secured Transactions
Creditors' secured status—and whether debtors can "avoid", or void, a creditor's security interest–is an important issue in all bankruptcies, and most bankruptcy attorneys acquire some knowledge of, and often expertise in, the Uniform Commercial Code and other aspects of security interests.
Chief Operating Officer
In Chapter 7 proceedings and the occasional Chapter 11 case, the court appoints a bankruptcy trustee, often a bankruptcy attorney, to operate and/or wind-down the debtor's business. Here, the trustee gets to act as businessman and client, typically hiring another attorney to do all legal work.
And that list just scratches the surface. Bankruptcies also involve issues of tax, real estate, landlord-tenant relations, environmental law, telecommunications, securities regulation, securities fraud, anti-trust, white-collar crime, domestic relations…well, the list doesn't stop, given that every bankruptcy is different, and involves every aspect of the debtor's financial life. A consumer bankruptcy involving a man in the midst of a divorce will involve all sorts of family law issues; the bankruptcy of a media conglomerate will require knowledge of federal communications regulations. This sheer variety of roles makes bankruptcy a unique and exciting practice, guaranteeing nary a dull moment.Return to top
You think you want to be there, but how much do you know about the responsibilities of a corporate lawyer? Corporate law has its own unique set of job responsibilities:
Due diligence, also called document review, is the process of reviewing the existing legal and business contracts of a business (including corporate documents, agreements and financial statements) for potential problems and issues prior to a proposed transaction, such as a merger or acquisition. The usual goal is to make sure that there is nothing in any of the contracts that would prohibit the sale of the company (or require a third party's consent) and to make sure that the contract will not terminate as a result of the sale. Usually, an associate will catalog the documents he or she has reviewed and write summaries of the key agreements. For example, when a merger is being considered and the acquirer hasn't had the time to read all of the contracts of the company it is considering purchasing, the lawyers will be expected to summarize the agreements. The purpose of due diligence is to give your client the clearest possible picture of the company you're examining, so the client can assess the risks and benefits of going through with the contemplated transaction.
In an initial public offering, due diligence involves reading agreements that are summarized in the deal prospectus–the document given to prospective investors summarizing important information about the company and the deal—to make sure the prospectus is correct. If you are representing an underwriter in a securities offering, you will review documents so that the underwriter can claim to have made a reasonable investigation of the issuer's statements in the offering document. Basically, it's done so that the underwriter will be able to claim the due diligence defense if there is a material misstatement in the offering document. ("I investigated and everything looked fine so don't come after me with a lawsuit because the investors lost their money.")
A junior associate does more due diligence than contract drafting because one of the best ways to learn how to draft contracts is to read a lot of them. In the past, lawyers frequently traveled to the company they were reviewing and spent a few days, or however long it took, to review all the materials pertinent to the transaction. Some attorneys have noticed a trend toward cutting back on attorney travel. Apparently, clients have discovered it's cheaper to have their own employees copy all the documents and send them to the law firm for review.
If you do travel to the company, document review is a great way to bill a lot of hours in a short period of time. You don't waste time looking for work or trying to decide whether to go to lunch with your colleagues. And no one can give you any non–billable work to do, like updating the firm's research files. The company sets aside a room for you and puts all the documents in there, and you read and read and read all day. Most lawyers find the work tedious, but again it is excellent training. In addition, it's a chance to get to know your colleagues really well. On rare occasions, you'll get to do a little detective work if the company has not supplied the proper documents and you have to interview employees to determine where they are.
Research and Writing Memos
Researching legal issues and writing memoranda about them is something that you should learn in law school, as both are essential for all aspects of a law practice. However, this process is rarely the same in a law firm. Not only are memos in corporate law slightly less formal and slightly less constrained by citation rules, your superiors might have very different ideas about what constitutes a useful, readable document. In a corporate law department, you are looking up applicable laws and figuring out what practical impact they have on your client's decisions and actions, rather than assessing the state of the law on a certain issue in the abstract. It's important to research and write the memo as quickly and efficiently as possible without sacrificing thoroughness and accuracy. Don't be surprised if your first memorandum comes back to you bleeding with editorial suggestions. And don't let it bother you. Just make sure to incorporate all of the suggestions into your revision and ask questions if you don't understand a comment.
Contract Drafting and Review
Drafting a contract is preparing the contract from the beginning–usually starting with a form and then tailoring it to fit the needs of the parties. You put down in words what the parties have agreed to in principal as best as you can so that there are no ambiguities in the future when the same parties or others read those documents. Then you or your senior associate will go back and forth with the lawyers for the other parties to revise and refine the document until all parties are comfortable signing. Negotiation of the contract involves some compromise. Once you understand what is important to your client and what they can live with or without, you try to strike the best deal for them without risking endless delay or total breakdown of the process. It's best not to spend too much time trying to hash out issues that aren't really essential to your client.
Review of a contract is simply reading the contract to determine what the parties' rights are under its terms and whether any of the terms may be detrimental to your client. When you're starting out, the person who gives you the assignment will tell you what to look for. Ultimately, you'll have read so many agreements that you'll know what's standard and what could be disadvantageous to your client.
Formation and "Housekeeping" of Corporate Entities
As a new corporate associate, you will learn to draft basic certificates, like a certificate of incorporation. These certificates are modeled after a form, so such tasks are pretty easy. In many firms, this kind of work is also handled by experienced paralegals, and those paralegals can often be a great source of knowledge for a new associate.
But before you file the papers, someone has to determine what would be the best structure of the organization, depending on the clients' goals. Examples of different legal entities include general partnerships, limited partnerships, limited liability companies, C corporations, S corporations and business trusts. Each structure offers its own legal and tax advantages and disadvantages. For example, a limited liability company, which is a hybrid between a partnership and a corporation, might provide the best tax treatment while retaining the limited liability advantage of a corporation. If the company wants to trade shares on an open market ("go public"), they have to use a standard corporate form, or C corporation, since that is what stock exchanges usually require. For a smaller company, with no immediate plans of going public, an S corporation, which, unlike the C corporation, does not pay income taxes on earnings (instead, the shareholder pays income tax on dividends), might present a better solution.
Forming the company is easy, and a paralegal can usually accomplish this task, although it is a good idea for a new lawyer to learn the process and be able to review the paralegal's work. The hard part is determining what the rights of the owners are in relation to each other, including consideration of how the parties are going to get out of the relationship if they decide their goals are not being met, and making sure that all of this is reflected in the company's documents, whether via a shareholders' agreement or an LLC agreement, in the articles of incorporation or bylaws, or even on the share certificates themselves. As a new lawyer, you won't be making these decisions. Either you'll be executing the instructions of another attorney, or taking a crack at the project yourself and then learning the correct reasoning when someone else reviews your work.
After you have created a legal entity under the applicable state law, you have to continue to ensure that proper documentation is made of the company's decisions and actions so that there is a clear corporate history of regulatory compliance. Corporate "housekeeping" involves drafting and filing the necessary paperwork to maintain an entity's corporate status with the appropriate governmental entity, usually a state secretary of state's office and the Internal Revenue Service. For example, you may draft and/or review board of directors' resolutions, file tax records, maintain and prepare stock certificates, and draft partnership or shareholder agreements.
Often, small companies are formed without the advice of a lawyer. When this happens, the corporate formalities, other than the filing of simple articles or certificate of incorporation might be largely ignored. This doesn't usually become a problem for the company until it becomes an acquisition target (meaning someone wants to buy the company) or when the company has expanded and wants either to start raising capital through the sale of shares or to go public. At this point, a lawyer will often have to work with the client to recreate the records that the corporation needs and may even have to amend the articles of incorporation to permit for the issuance of additional and different types of shares. You will either have to know or research the corporate statutes of the state of the company's organization to make sure that the company is in compliance with the state's requirements.
Preparing Filings for State and Federal Agencies
It's likely that a new associate will prepare filings other than corporate organizational documents. At a minimum, an associate will usually get some exposure to corporate securities filings. When a company wants to start selling shares to people who were not involved in the inception and management of the company, that company must share a great deal of information about itself. The kind of information the company must provide and the format in which the information must be provided depend on the level of financial sophistication of its investors. The Securities and Exchange Commission (SEC) regulates this process. If your client wants to sell shares to all kinds of investors, they go public and are traded on an open market. If they choose to do this, they will be subject to very strict disclosure requirements. The documents they have to produce are lengthy (usually over a hundred pages) and extremely number–intensive. They must comply with very specific rules and regulations. Most associates will spend some time proofreading these documents and researching applicable laws and regulationsReturn to top
The public defender might be the unsung hero of the legal system. As a government employee, he makes relatively little for a litigator. He has little say over his cases and often works with the defendants that no one else wants. He doesn't have the resources that the district attorney's office has and must often engage in his own investigations. Many of his cases seem almost hopeless and, to the victims of crime, he appears almost as bad as his defendants. So why does he do this job?
For one thing, public defenders are integral to the criminal justice system. The law affords everyone the right to an attorney including those who cannot afford one. "It's a mistake to say that we're against the system. We're part of the system," observes one public defender. Public defenders work for government agencies or are private lawyers paid an hourly rate by the state. Either way, there's not a lot of money to be made.
There are public defenders at the state, federal and appellate levels. At the state level, a public defender represents impoverished clients in state criminal court, handling everything from small violations to juvenile offenses to violent crime cases. He is responsible for acquiring all background information on the case, interviewing witnesses and filing the appropriate papers and motions in court, as well as preparing for trial and negotiating plea bargains. Although previous litigation experience is always looked upon as an asset, a lawyer can become a state public defender in his first year after law school.
The public defender at the federal level represents those who cannot afford private representation in federal court. An assistant federal public defender does both trial and appellate work in the U.S. district courts and the circuit courts of appeal. In general, a candidate for the federal public defender's office must already have a few years of serious litigation experience, preferably in criminal court.
Some states have a separate agency for public defenders working at an appellate level. These appellate defenders work with appeals either in state or federal court, preparing for appellate-level hearings or representing defendants at the post-conviction level. Their job is to make sure that the defendant has had a fair and impartial trial and that his treatment in the justice system continues to be appropriate and fair. Some appellate defenders specialize in capital cases (cases involving the death penalty).
First-year public defenders will find themselves in court very quickly, defending petty thieves and vandals and the like. They might work odd shifts and have only a few minutes to meet with each client before appearing before a judge. Often, the defense attorney's job will be to get a fair plea bargain for his client. Public defenders spend a good portion of every day either in court for hearings or in jails with their clients. Gradually, as the public defender increases in skill and knowledge of the legal system, he will start trying more complicated misdemeanors and eventually felonies. Most public defender agencies offer some kind of training, but most of a public defender's duties are learned on the job and on his feet.
Like their adversaries across the aisle, public defenders get court experience and criminal law experience very quickly. As a public defender, you will be representing clients in trials long before your friends with civil litigation jobs and, in some cases, before your classmates who became assistant district attorneys. As the defenders of the indigent and needy, public defenders can find immense satisfaction in helping someone who would otherwise be lost in the currents of the legal system. There will always be work for public defenders, and the litigation experience is unparalleled.
Being a public defender is, however, often an uphill battle. In many cases, the prosecution has a mountain of damning evidence and a defense attorney might start to feel as if his job is merely defending "guilty people." A public defender at an agency has very little say in which cases he takes and, while he may happily take on a burglary case, defending an alleged rapist can be a sobering experience. (A public defender can sometimes turn down a case, but this is rare and usually frowned upon.) The role of a criminal defense attorney is very demanding in any case, but the public defender often works with those considered "the dregs" of society and may have to face the victim or the victim's family in court every day.
Many public defenders enjoy the legal challenge. "I think my job is very creative," says one public defender. "I'm given a set of facts and the ADA's theory, and it's my job to see other perspectives. It's challenging." Others are devoted to making sure that even the most despised and vulnerable members of society are represented fairly. Some defenders see their role as ensuring that the prosecution is forced to put together the best prosecution it can, given that a person's freedom is at stake. Others have political or sociological views that clash with the established judicial or prison system. "I think you need a pretty strong belief system to do this job," says one public defender. "Not always – I mean, there are people who do it just for the experience. But it can wear you down, and it helps to really feel that you're contributing something."
Whatever their motivation, the ranks of public defenders are full of excellent lawyers. The salary at a state agency is generally commensurate with that at the district attorney's office, although in some jurisdictions a public defender can make much less. Appellate defenders at the state level will make about as much as their trial counterparts. Federal public defenders make salaries similar to those of the U.S. attorneys in their area. Generally, a prospective public defender at any level will pass through a series of interviews and be asked to make a commitment of a certain number of years to the agency. (Three is a common number.) Most agencies look for evidence of interest in community service and helping the needy, from a legal or other standpoint.
Public defenders who are not part of an agency are assigned their cases by a court and paid by the hour. Lawyers in every state have complained that the hourly rate set by courts chases many good would-be public defenders into different fields of law. Clearly, lawyers remain public defenders for reasons other than the money.
Public defenders can work many long hours, especially if they're at trial. However, the hours of a public defender, like those of an assistant district attorney, are not as unrelentingly demanding as those of corporate litigators. And while hiring is dependent on government budgets, the high turnover rate of public defenders means that new, eager lawyers are always wanted.Return to top
Representing the Underdog
If you have a passion for civil rights and like to root for the underdog, you might find working on the plaintiffs' side of the employment bar a good fit. While plaintiffs aren't always the underdog, many plaintiffs' lawyers report that they at least feel like the underdog most of the time. Plaintiffs' side attorneys encounter many unique, challenging and potentially rewarding aspects of litigation practice not experienced by their peers on the management side. The substantive nature of the work, however, is virtually identical.
Plaintiffs' lawyers represent the parties that initiate a range of employment litigation, from sexual harassment to age discrimination to wage and hour litigation. Plaintiff–side practice is almost exclusively focused on litigation. The kind of counseling plaintiffs' attorneys provide entails consulting with potential clients to evaluate the merits of a case. Again, if your civil procedure class seemed like a trip to the dentist's office, employment litigation may not be the field for you. On the other hand, if the thought of standing up in front of jury and telling your client's story excites you, there may be no better place to practice than on the plaintiffs' side of the employment bar.
Focus on Smaller Cases
Unlike the different sizes you find on the management/defense side, plaintiffs' firms tend to come in one size only – small. Most plaintiffs' firms are small litigation firms with a handful of attorneys who represent plaintiffs in a variety of cases. While some plaintiffs' firms specialize in employment litigation, others combine their employment practice with civil rights cases, personal injury work or other kinds of litigation. Examples of plaintiffs' firms well known for employment litigation include Rudy, Exelrod & Zieff in San Francisco and Hadsell & Stormer in Los Angeles. Because of their smaller size, plaintiffs' firms tend to have localized practices concentrated in one metropolitan area or, at most, an entire state. The mainstay of these firms are single– and multi–plaintiff actions. Larger class actions, which involve significant financial risk for plaintiffs' counsel, are usually brought by firms with expertise in class actions or by the Equal Employment Opportunity Commission. The EEOC is a major force in the world of employment law and acts essentially as the federal government's plaintiffs' firm for employment matters. (The EEOC will be discussed in more detail below.)
Sink or Swim Training
At private plaintiffs' firms, the focus on smaller cases allows new lawyers to work on significant matters early in their careers. In fact, as a junior attorney at a plaintiffs' firm you will probably get substantial responsibility on a case–even before you think you're ready. This "sink or swim" method of training is common at plaintiffs' firms which need associates to be competent litigators early on because they just don't have time to slowly train new attorneys and bring them up through the ranks. Not only do junior plaintiffs' attorneys frequently enjoy more responsibility than their counterparts at large management firms, but they also are likely to have greater client contact.
Holding the Client's HandPlaintiffs' lawyers work closely with clients who may feel victimized and at times be very emotional. The close relationships that often develop between employment discrimination plaintiffs and their attorneys can require a certain amount of "client management" or "hand–holding" (as some lawyers like to call it), and at such times plaintiffs' lawyers may assume a role closer to counselor than litigator. Plaintiffs' attorneys also have to deal with clients' mood swings that range from disenchantment with the litigation to holding onto an unreasonable settlement position because they are so emotionally entangled in the case. These aspects of the attorney–client relationship come at a much earlier stage to attorneys on the plaintiffs' side than to defense–side lawyers. Associates at plaintiffs' firms often have significant interaction with clients in their first few years of practice, while partners are usually the main contact with clients on the management side and actual interaction with corporate clients may not trickle far down the ranks. Many lawyers find the early responsibility, close client contact and opportunity to litigate a ton of cases attractive aspects of plaintiff–side practice.
More Food for Thought
On the other hand, the plaintiffs' side of the bar offers fewer opportunities for young attorneys to obtain practical training from attentive senior litigators. Plaintiffs' side litigators tend to be independent types who aren't in the business of building a law firm full of well–trained associates. Even when you find an opportunity on the plaintiffs' side it will not be nearly as lucrative in the beginning as starting out on the management side. In addition, more senior plaintiffs' attorneys have to deal with all of the risks associated with contingent fee arrangements that are the foundation of plaintiffs' side work. Contingency–based fees can, of course, prove very lucrative, but they involve a degree of financial risk that management–side lawyers don't usually have to deal with.
As the agency responsible for enforcing federal employment discrimination laws, the Equal Employment Opportunity Commission might be considered the biggest plaintiffs' firm of them all. EEOC lawyers tend to serve two functions. First, they serve as in-house counsel for the investigative arm of the agency. In this capacity EEOC lawyers might take complaints or investigate claims. Second, EEOC attorneys serve as trial lawyers in federal court, prosecuting the employment cases that could not be settled by the parties voluntarily through the EEOC's conciliation process. The cases actually tried by the EEOC tend be higher profile cases and provide EEOC lawyers with the opportunity to litigate opposite some of the best private practice employment litigators in the country. Such unique litigation experiences are among the reasons that positions at the EEOC are in short supply. Another reason is that the EEOC's ability to hire lawyers is directly tied to its general budget, which must be approved by Congress.Return to top
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