References & Conflicts from the Candidate’s Perspective

by Jon Lewis

When pursuing a new position as an attorney, you will typically need to work hardest before receiving your ultimate offer, on tasks such as drafting a resume, preparing for/attending multiple rounds of interviews, and negotiating terms after an initial offer is extended. But even if you survive all that heavy lifting, it’s usually still premature to celebrate. The vast majority of offers to attorneys are expressly contingent upon reference and conflicts checks, and (as many candidates have learned to their dismay) those checks can at times prove to be much more than mere rubber stamp formalities. Here are some points to keep in mind:

REFERENCES

From a candidate’s perspective, the significant issues with respect to reference checks revolve around three main questions.

WHO? When checking references, most employers will eventually expect to speak with a direct supervisor at the candidate’s current employer.  While this is perfectly reasonable, it is obviously not a good idea to use your current boss as a reference until you have actually received an offer you want to accept.  Unfortunately, however, some potential employers will ask for preliminary references during the course of the interview process, before deciding whether to extend an offer.  In such cases, you might consider such possibilities as:

1. A judge you clerked for after law school.
2. A partner you used to work for who left your firm.
3. A co-counsel/adversary from another firm with whom you developed a relationship while working on a now closed matter.

However, if at all possible, do not use any of the following, even as preliminary references:

1. Someone at your current firm other than your supervisor - no matter how much you may trust such a person, the danger of a premature leak of your intentions at your current firm should be avoided.
2. A law school or college professor - pre-law school graduation references are usually too remote in time to be well-received by an employer except, perhaps, in the case of a very junior candidate.
3. Any associate-level attorney - references should come from those who know you as your supervisor, not from a peer.

WHEN? Don’t be too quick to offer up references to a prospective employer. Believe it or not, there are a fair number of firms/companies which do not conduct reference checks as part of the hiring process. Additionally, delaying the identification of references may allow you to better choose as references the people who will best be able to speak to those aspects of your abilities/experience that seem to be most important to the employer based on your discussions. For both these reasons, it is typically not a good idea to include references in your resume itself or any other materials submitted to the employer before references have actually been requested.

More importantly with respect to timing, never, ever offer anyone as a reference without checking in with that person first. No matter the length/quality of your prior relationship, do not assume that someone is willing and available to speak as an advocate on your behalf without asking them beforehand. Listen very carefully to the reaction you get when you ask that question - it is extremely rare for anyone who has enthusiastically agreed to serve as a reference to then give a bad or tepid evaluation, but if a prospective reference sounds at all uneasy or hesitant about serving in that capacity it’s a good idea to find someone else. Assuming that the person you have in mind is willing to act as a reference, make sure you prep him or her thoroughly to serve in that capacity before giving his or her contact information to the employer. Be certain they know the name of the company or firm you hope to join, your reasons for considering such a move, and why you think you are a good fit for the job in question. Also, make sure the reference recalls and can recount specific examples of work you did for them in the past.

HOW MANY? Whether because they cannot decide who to use or out of a mistaken belief that more is better, some candidates will offer up more references than actually requested by the employer. However, when it comes to references, less is definitely more. Employers know what they are looking for, and usually aren’t interested in sifting through three or four reference contacts if they’ve only asked for one. Moreover, after your one or two strongest references, additional testimonials on your behalf are unlikely to add to your likelihood of success - beyond that, each person the employer contacts is more likely to represent a potential pothole on your road to that new job.

CONFLICTS

Turning to conflicts checks, I note at the outset that these are usually more of an issue for partner-level candidates rather than associates. Partners are typically brought on board in whole or part for their books of portable business, and neither the firm nor the partner candidate is likely to proceed if a conflict precludes the transfer of such business. Associates, on the other hand, are typically not hired to service a specific client - if a prospective associate has a conflict with respect to one matter, the new firm can often proceed by walling the associate off from that matter and using her/him instead on others. That said, it is certainly not unheard of for associate candidates to be rejected based on conflicts considerations, so the issue is not one that associates can simply ignore.

In my discussion above, I suggested that candidates may benefit from delaying the identification of their references. With regard to conflicts, however, early disclosure can often be in the candidate’s best interest. Obviously, conflicts sometimes come up only late in the game as nasty surprises, but in those cases where you are aware early in the process that a significant conflict may exist consider raising the issue with the potential employer right away. First, if there really is an insurmountable conflict, identifying that promptly can save both the candidate and the employer a great deal of time and effort. Also, if you point out the potential conflict early on, employers can sometimes be more open to working out a possible solution than they may be if you spring the issue on them for the first time later (say after an offer has been extended) and thereby create “why didn’t you tell us this before?” resentment.

Perhaps the complaint recruiters hear most often from candidates with respect to conflicts checks is that firms make onerous requests for information. Firms develop their standard conflicts forms with an eye toward protecting themselves from client problems, and it is therefore unsurprising that such forms generally err on the side of requesting more information rather than less. As a candidate interested in a new position, it is generally best to grin and bear it, providing as much of the requested information as possible. That said, I have from time to time seen some conflicts forms which do seem to go a bit overboard in terms of the scope of the information requested and time necessary to prepare a response. In such cases, it is not unreasonable for a candidate to contact (or have their recruiter contact) the employer to explain the nature of their difficulty in responding and ask whether a more limited answer might still be acceptable. If you honestly find a conflicts form to be truly burdensome, there is a chance the firm may have heard the same complaint from other candidates in the past and be open to reasonable modifications upon request. If you do go this route, however, be sure that you have a constructive and sensible approach to suggest - otherwise, you will simply come across as a whiner who doesn’t really want the job all that much.