A Guide to Eliminate Unethical Legal Recruiting Practices

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I’ve been a legal recruiter for over 25 years and am now the CEO of our firm. I started out with Big Recruiting back in the ’90s. Back then, legal recruiters would exaggerate portable books of business, poach from clients and send attorneys to literally any hellhole that would pay them a commission.

They still do.

Within a year of starting, I quit Big Recruiting to escape the unethical legal recruiting practices – quotas, bureaucracy and a business model that rewarded bad practices. Sound familiar?

Obviously not all legal recruiters still engage in such practices but by the time you finish reading this article, it will be easy to figure out whether your recruiter is screwing you and exactly what you can do about it.

Poaching from Clients

There are still legal recruiters who poach from clients who have paid them fees.

At the larger firms this can be almost unavoidable as their recruiters are only allowed to work a single market.

For example, I worked the San Diego market exclusively for a time. If my current clients weren’t hiring, I had a choice – work with other clients and poach from my current clients – or starve. Thus, yesterday’s client becomes today’s talent pool.

My next employer was a bit more Machiavellian. I didn’t poach from my personal clients. Instead, other recruiters in our office did so. That way if asked, I could honestly say “I have never recruited from your firm!”

Did clients find out? Rarely. I was trained to tell placed attorneys that in exit interviews, say a friend recruited them. Discovery of recruiter poaching is the exception, not the rule

One exception – a lawyer who discovered his large recruiting firm was attempting to poach his best people – was prominent attorney Michael Nunez, the Las Vegas managing partner at Murchison & Cumming. It turned out, everyone in the recruiting firm except the recruiter who made the placement, was attempting to poach his best people.

“With the exception of one firm, our experience with legal recruiters has been extremely negative.” The frustration in his voice is obvious. “The people we’ve paid to recruit for us, have then turned around a tried to recruit our best people. Even from the same office! Where is the loyalty? Where are the ethics?”

“The people we’ve paid to recruit for us, have then turned around a tried to recruit our best people. Even from the same office! Where is the loyalty? Where are the ethics?”

Betrayal as the Accepted Norm: The NALSC “Code of Ethics”

Long ago, the largest legal recruiting firms formed the National Association of Legal Search Consultants or NALSC. They made a nice logo, website, membership program etc.

But they faced a dilemma. How could they normalize the continued practice of stealing talent from clients who actually paid them fees? They came up with an ingenious and carefully crafted legal recruiting “Code of Ethics.” It reads as follows:

“No search firm shall solicit any attorney from the office of an employer in which it has made a placement for a six-month period following that placement, unless the search firm reasonably believes such a restriction is not required by the employer.”

If this is unclear to you, allow me to edify. On the same day that the recruiting firm collects a $100,000 check from your organization, they consider it “ethical” to begin poaching your most valuable associates and partners from any of your other offices. Six months and one day later, they can poach from the same office. Actually, they can poach anyone from anywhere in your organization at any time, as long as they pretend they “reasonably believe” that you won’t mind.

How good has the NALSC been at duping clients into voluntarily allowing recruiters to engage in such cannibalistic practices? I just received a contract from an AmLaw 100 firm that read as follows: “Your organization agrees to abide by the NASLC Code of Ethics, Articles I and II.”  

Think about that. AmLaw and Mid-sized firms have not only accepted such practices, they have actually memorialized their acquiescence to such practices in their own contracts.

Think about that. AmLaw and Mid-sized firms have not only accepted such practices, they have actually memorialized their acquiescence to such practices in their own contracts.

Exaggerating Portable Business

Recruiters are often trained to tell partners they must be “Optimistic” and “Aggressive” when stating how much business they will bring. I was trained to tell partners that if they didn’t enhance their book, and then had a good year, they would be underpaid.

However it is important to note that as often as not, it is the partner who has exaggerated their book. Whether ego or avarice, it happens often.

What Firms Can Do About It

  1. Define a Reasonable, Firm-Wide Recruiting Prohibition. If your recruiting agreement (or theirs) mentions the NALSC Code of Ethics, it’s time to change your contracts. Require recruiters to sign a five-year, firm-wide recruiting prohibition from the time of the most recent payment. Truly ethical firms will be happy to do so.
  2. Define Consequences for Poaching After Receipt of a Fee. If a firm you’ve paid a fee, recruits and places one of your people elsewhere, the search firm should refund an amount equal to the last fee they received from you. This will definitely deter betrayal as a business practice.
  3. Thoroughly debrief all candidates hired through recruiters. Ask them all about the recruiter’s methodology, how many firms they were submitted to and so on. That will separate the loyal relationships from those that are purely transactional.
  4. With Respect to Partners with Portable Business, Request Alternative Fee Arrangements. Rather than paying recruiters based on the salary of the partner, pay them based on the revenues the partner actually produces.

How Recruiters Damage Individual Legal Careers

When I worked for Big Recruiting, my objectives were clear:

  1. Gets as many resumes possible.
  2. Send those resumes to as many places possible.
  3. Any interested client would be touted as a great place to work.
  4. Encourage the candidate to go where the highest offer was made, in order to collect the largest fee possible.
  5. Repeat.

My first couple of employers operated under a split-commission business model. That meant that if I sent my candidate to the client of another recruiter, we had to split commissions. So, if someone else had a far superior opportunity, instead of making $50,000, I would make only $25,000.

While recruiters will insist they would never try to make a placement with their own clients first, human nature makes clear what often happens under that business model. If there were no splits or I had no clients, the attorney’s resume would be shot-gunned to every client in town.

The better firms do not split fees and they certainly never send a resume without an attorney’s permission. Does that mean it’s not still done?

Robert Shapiro, a litigation partner at the prestigious AmLaw firm, Duane Morris confirms it is.

“I once worked with a recruiter and I made the parameters very clear. She would check with me prior to sending my resume anywhere,” he paused and sighed. “She submitted my resume to every firm in town, without my consent. No matter where I went, she wanted to get the credit for presenting me.”

As he continued, the frustration was clear.

“This included places where I had close personal relationships and would never have gone through a recruiter, as well as places that had reputations which would preclude an introduction. There was zero consideration of what would be beneficial to me at all.”

What Attorneys Can Do About It

  1. Don’t lie or work with anyone encouraging you to do so. In the long-term, exaggerating your book can cost you political capital or even your new position.
  2. Put the parameters and consequences in writing. Send recruiters an email that reads thus: “Please acknowledge your full understanding that you will not submit my resume (in normal or “blind” format), my name or other identifying information to any potential employer without my prior, express consent. Failure to do so will result in my immediate communication to said employer that you were not authorized to do so and that no fee shall be due to you, should I join that firm.”
  3. Ask if their firm has a split commission model. If so, ask if there are any other positions their firm has, that they haven’t told you about.
  4. Do your due diligence. If the recruiter doesn’t share both the positives and negatives about an opportunity, something is wrong. No place is perfect. If they won’t give you the reality, do research on your own. Your career is at stake.

A recruiting firm can offer significant value to your firm or career. The best legal recruiters can get premium candidates, groups or even targets for law firm acquisitions to the table. They can help you identify opportunities that will accelerate or improve your practice, income, lifestyle etc.

However, just as with the practice of law, it’s time for both attorneys and clients to demand better value, loyalty and ethics from the profession they sustain. The easiest way to accomplish this is to simply stop tolerating the worst practices and work with those who exemplify the best. Frederick Shelton

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