Legal Career View

…by responding to a job ad, or by networking.

True, that’s the way conventional legal job-seekers, who comprise almost 100 percent of the cohort, go about trying to get hired. But those two options don’t always work and are by no means the only way to secure a job. There are a number of other paths you can follow, all of which dramatically reduce the number of competitors you must go against. We’ll discuss the most attractive such paths in this and future LegalCareerView.com blogs.

Identifying Job Opportunities before the Competition

Identifying prospective job opportunities before they become publicly known and attract hundreds of job seekers is an important—nay, essential—job-search strategy that very few law students or practitioners think about, much less employ. That’s a shame, because this out-of-the-box strategy can provide you with an invaluable leg up on the competition. It enables you to get in line in front of your competitors by getting your application into the employer before anyone else and often even before a job ad or vacancy announcement is published.

There are a number of ways to do this. Here’s a real-time example of one of the most effective such strategies:

Say you are interested in practicing Elder Law, one of the up-and-coming 21^st century emerging practice areas with a good future, thanks in large part to demographics—10,000 Baby Boomers a day turning age 65 between 2011 and 2029. That’s an incredibly huge and constantly replenishing client pool. Refining your focus further, say you want to become involved in the burgeoning Elder Law subspecialty of elder financial abuse, a field garnering great interest from law firms of all sizes, financial institutions that manage assets, and government regulators.

A very effective way to be first past the post in applying for job opportunities before they gel into public job ads is to monitor relevant bills as they wend their way through Congress or your state legislature. While no one really wants to see how sausages and laws are made, it is important to hold your nose and keep up with the customarily slow and excruciatingly agonizing legislative process when it involves bills that could enhance your legal job prospects.

If you were interested in elder financial abuse, there are two bills that, at this writing, are before Congress. In January 2017, Sen. Susan Collins (R-ME), chair of the Senate Special Committee on Aging, reintroduced her Senior $afe Act, S. 223, designed to boost protection of vulnerable adults from financial exploitation. The bill would protect banks, credit unions, investment advisors, broker-dealers, insurance companies and certain supervisory, compliance and legal employees from civil or administrative liability—as long as they receive training in how to identify and report predatory activity and disclose any possible exploitation of senior citizens to state or federal regulatory and law enforcement entities. The bill is currently before the Senate Banking, Housing & Urban Affairs Committee.

A second bill, the Seniors Fraud Prevention Act, S. 81, sponsored by Collins and Sen. Amy Klobuchar (D-MN),  would help fight scams designed to deprive seniors of their assets by educating seniors about fraud schemes and improving monitoring and response to fraud complaints.

S. 81 would help protect seniors from fraud schemes by strengthening the complaint system to ensure fraud complaints are handled quickly by the appropriate law enforcement agencies. The bill would also require the Federal Trade Commission (FTC), the agency responsible for handling consumer complaints, to coordinate with other agencies to monitor the market for fraud schemes targeting seniors. In addition, the bill would require the FTC to distribute information materials to seniors, their families, and their caregivers that explain how to recognize fraud schemes and how to contact law enforcement authorities in the event that a senior is targeted.

S. 81 was passed by the Senate, unanimously, in August 2017. At this writing, it is before the House Committee on Energy and Commerce.

Legislative Due Diligence

Two questions rise to the top of the due diligence you need to do before committing to follow a bill as it makes its way through Congress:

• First, what is the likelihood that this particular bill will become law?
• Second, if this bill becomes law, how will it affect my job prospects?

What is the likelihood that this bill will become law? It is important to understand that not every bill introduced has “legs.” You need to analyze each relevant bill in order to understand which might be serious and have decent prospects for enactment, and which do not. In the case of S. 223 and S. 81, you can conclude quickly that both are very serious propositions. The analysis goes like this:

S. 81 passed the Senate without a dissenting vote and has bipartisan co-sponsorship.

S. 223 is similar to a bill that was approved by the House Financial Services Committee in 2016 by a vote of 59-0 and passed the House by voice vote. In the Senate, it was cosponsored by a quarter of the members, balanced nearly evenly on both sides of the aisle, and was discharged out of the Banking Committee. Just one Senator blocked it and prevented it from becoming law.

In both cases, these are indicators that these bills are serious pieces of legislation with a strong chance of becoming law.

If this bill becomes law, how will it affect my job prospects? For example, S. 81 might generate new positions at the FTC and possibly at other federal regulatory agencies as well. It might create prosecutorial jobs with state attorney general and local district attorney offices. Both bills are likely to generate hiring activity by thousands of financial institutions that manage seniors’ assets, plus their outside law firms. Moreover, any increase in prosecutions for senior fraud means business for the defense side as well.

So don’t limit yourself to the myth that there are only two ways to look for jobs. If it turns out that neither Congress nor your state legislature is working on anything germane to your career aspirations, consider another alternative path. In Myth 4.2 of this series, we’ll look at a little-known potential gold mine for legal job hunters: congressional appropriations committee testimony.

The conventional wisdom among legal career “experts” is that JD Advantage jobs (positions for which a law degree is an advantage, but not necessarily a requirement) pay poorly and thus are no help in paying off student debt. The conventional wisdom, however, is wrong. A wide variety of JD Advantage jobs pay quite well, competitively with mainstream legal positions. Some, in fact, pay better than legal positions and those in high demand are seeing compensation increase more rapidly than attorney pay.

How Much Do Attorneys Earn?

That depends on whom you ask. A University of Tennessee law professor who studies the profession says that the average attorney earns only $46,000 per year and that attorney compensation is at best static, at worst declining. That figure seems pretty low to me. Payscale.com in contrast, says that its survey reveals that average annual earnings are $81,000 per year. That seems about right.

Remember that these figures are average ones. Do not be deluded by the mega-compensation awarded “BigLaw” lawyers. There aren’t all that many of them. Sole practitioners, a category that encompasses more than 25 percent of the attorney population, average only $49,000 per year (IRS). There are also wide disparities in compensation depending on practice area, geography, and type and size of employer, etc.

Both the IRS statistics and those published by the Bureau of Labor Statistics show that attorney compensation is increasing only incrementally.

JD Advantage Compensation

Examining a variety of JD Advantage positions reveals some striking contrasts to the humdrum level and pace of attorney compensation. Compliance Officers, for example, earn an average of $76,000 (Glassdoor.com) or $105,000 (Society of Corporate Compliance & Ethics). Risk Managers average $103,000 (Glassdoor.com). Technology Commercialization professionals are compensated at an average rate of $77,000 (Payscale.com); Government Relations officers-$79,000 (Salary.com http://salary.com); Landmen (Oil and Gas)-$125,000 (American Association of Professional Landmen). Note: This organization’s latest  survey was conducted in 2010. Landman compensation has increased significantly since then.

These are just a few examples of JD Advantage jobs that promise rewarding alternative careers for attorneys. Two things are also important to note. Compensation in all of these disciplines is growing at a much faster annual rate than mainstream attorney compensation, and demand for these skills exceeds the supply of qualified individuals. An attorney without specific qualifications for these positions can ably supplement a law degree with a certificate that is reasonably priced and not very time-consuming. Several examples of such certificates follow.

Selected Certificate Programs

Society of Corporate Compliance & Ethics–Certified Compliance and Ethics Professional (self-study followed by an online test option)

American Institute for CPCU & Insurance Institute of America–Associate in Risk Management (ARM)(online)

University of California, Berkeley Extension–Certificate in Technology Transfer and Commercialization

Association of Government Relations Professionals–Lobbying Certificate Program (online)

American Association of Professional Landmen–Certified Professional Landman

MetLife, the nation’s largest life insurance company, has just received approval from the Delaware insurance regulator to spin off its core business—life insurance. The new company will be called Brighthouse Financial. The approval is the last major obstacle to what will be one of the largest-ever corporate spinoffs. The new company will immediately become a member of the Fortune 500 list and will need to be staffed with an entire new coterie of lawyers for both its in-house counsel office as well as its anticipated multiple additional legal and quasi-legal offices, e.g., tax, compliance, risk management, contracts, etc.

Typical Types of Spinoffs

Spinoffs are an interesting potential legal employer pool. Spinoffs come in four distinct varieties:

Corporate spinoffs. A company spins off a subsidiary, division, or product line. Several websites and fee-based newsletters keep track of spinoffs (see below). However, they miss the vast majority of local spinoff companies that are constantly emerging out of larger companies. For that, you need to focus on regional business journals, general circulation newspapers, chamber of commerce announcements, and business filings. Certain industries generate many more spinoffs than others due to their heightened merger and acquisitions (M&A) activity. Hi-tech and pharmaceuticals are prime examples. Any industry on the cutting edge is likely to see more such activity.

Tax inversions. A company buys a foreign company and essentially moves offshore, which causes it to spin off certain U.S. operations.

Corporate reorganizations. A company reorganizes, during which process it sheds certain business units that either don’t fit the new business model, are unprofitable or underperforming, due to a need to raise cash to grow the remaining portions of its business, to finance an acquisition, or is forced by government antitrust agencies or other regulators. Example: Several years ago the Pentagon issued a rule prohibiting companies from advising Defense agencies on weapons systems while also bidding on contracts to build them, resulting in more than 30 divestitures.

Entrepreneurial Spinoffs. This type of spinoff is surging. Here, researchers who work for a university leave their employer to launch a new company based on research and innovation the founders did while employed by the institution. The Association of University Technology Managers (AUTM)  2015 Licensing Activity Survey reported that 1,012 startups were launched that year as a result of university research and innovation. The typical entrepreneurial spinoff is a highly localized or regional event. The AUTM survey reported that 72 percent of the startups had their primary place of business in the licensing institution’s home state.

Universities that generate such spinoffs usually provide a lot of public information about their activities.  Keeping up with their technology commercialization offices, sponsored research offices, grant offices, and/or legal counsel offices is a good way to get advance notice. Two caveats:

1. Focus your attention on research universities. While private institutions like MIT, Harvard, Stanford, Chicago and Princeton are in the forefront of such activity, they are by no means the only academic institutions so involved. Don’t overlook large state universities like Ohio State, Michigan, Texas, Penn State, Colorado, the University of California and the California State University systems, among others, as well as a hybrid private-state institution like Cornell—all are major entrepreneurial engines.

2. Office nomenclature varies. While I used the most common office names to describe university offices you should monitor, these office titles not necessarily uniform among all institutions.

Not to be overlooked are U.S. government agencies, offices, and laboratories that focus on commercializing research and innovation. There are a surprisingly large number of such entities. The major ones are as follows:

National Aeronautics and Space Administration

• Office of the General Counsel
  • Commercial and International Law Division
  • Intellectual Property Law Division
• Office of Patent Counsel, Technology Commercialization Office, Goddard Space Flight Center
• Office of the Chief Counsel, Kennedy Space Center
• Office of the Chief Counsel, Intellectual Property Law Division, NASA Glenn Research Center

Small Business Administration Office of General Counsel

U.S. Department of Commerce

• National Oceanic and Atmospheric Administration, Office of Research and Technology Applications
• National Institute of Standards and Technology, Office of Technology Partnerships
• Office of the Chief Counsel for Technology

U.S. Department of Defense

• Army Materiel Command
  • Office of Command Counsel, Business Operations Law Division
  • Office of Chief Counsel, Army Research Laboratory
  • Office of Chief Counsel, Aviation and Missile Command
• Office of General Counsel of the Air Force, Acquisition Law Division
• Department of the Navy
  • Office of the General Counsel,
  • Office of Naval Research, Office of Counsel

U.S. Department of Energy

• Office of General Counsel, Deputy General Counsel for Technology Transfer and Procurement
• Los Alamos National Laboratory
  • Office of Laboratory Counsel
  • Intellectual Property Practice Group
  • Conflict of Interest Program Office
  • Technology Transfer Division
• Lawrence Berkeley National Laboratory
  • Technology Transfer Department
  • Office of Laboratory Counsel, Patent Department
• Thomas Jefferson National Accelerator Facility, Office of Legal Counsel
• Pacific Northwest National Laboratory, Office of General Counsel
• Lawrence Livermore National Laboratory
  • Industrial Partnerships and Commercialization Office
  • Office of Laboratory Counsel
• National Energy Technology Laboratory, Office of Chief Counsel
• Oak Ridge National Laboratory, Office of General Counsel
• Ames Laboratory, Office of Planning and Intellectual Property

U.S. Department of Health and Human Services

• Agency for Health Care Research and Quality
• National Institutes of Health
  • Office of Technology Transfer
  • National Cancer Institute, Technology Transfer Branch

If you are looking for job opportunities deriving from spinoffs, you need to be quick on your feet because these transactions normally occur in a short time frame with far less notice than acquisitions. In some cases, you can actually anticipate this activity. Monitoring M&A activity is one such means because it frequently presages spinoffs. The spinoff websites listed below are another good resource.

When a spinoff occurs, it is often the case that the new company will need a new legal staff and also have to fill positions in parallel quasi-legal offices such as Compliance, Tax, Risk Management, Intellectual Property, Privacy, Ethics, and others.

For More Information

• Stock Spinoffs
• Spinoff Report
• NASA Spinoffs

It is a common refrain (and for the most part an accurate assessment) within the legal community that corporate in-house counsel offices won’t consider hiring a freshly-minted attorney just out of law school. Corporations, unlike law firms and government, generally do not have or want to take the time to train a new lawyer and nurture his or her development. As a rule, they want folks who can hit the ground running. Exceptions to the rule are few.

But that’s not the end of the story. The organizational structure and business model of most major corporations has changed dramatically in the 21^st century, and that has proven to be good news for attorneys, including recent law school graduates. While the number of attorneys in Fortune 1,000 in-house counsel offices has remained level for a generation, the number of attorneys employed by these same companies has skyrocketed and continues to grow.

The “Cascade” Effect

Corporate life has become more complex in recent years due to the disruptions caused by technology, globalization, changing consumer demographics, and the regulatory environment. Where once upon a time companies could manage all of their legal affairs through their general counsel offices, today that is no longer possible. Certain corporate activities have become so overwhelming that companies have been compelled to establish separate offices to handle specific legal and quasi-legal functions and demands. Compliance is a classic example and now encompasses federal, state, local, and international compliance as well as certain specific subject matters that transcend geographic boundaries. Examples include environmental, tax, antitrust, claims, securities, import/export, consumer lending, human resources, and immigration, among many other substantive areas. Some corporations, in fact, have established separate offices for each of their major compliance subsets.

Types of Jobs

There is no single corporate business model that fits all companies. However, it is increasingly common in large organizations to find some or all of the following offices that hire attorneys for mainstream legal positions and/or JD Advantage jobs:

• In-House Counsel Office
• Board of Directors Staff
• Tax
• Compliance
• Risk Management
• Ethics
• Due Diligence
• Technology Commercialization
• Real Estate
• Litigation Management
• Marketing
• Intellectual Property
• Government Affairs
• Contracting and Procurement
• Acquisitions
• Privacy/Data Protection
• Labor Relations
• Policy Management
• Human Resources
• Diversity
• Training
• In many companies, these legal and law-related jobs are often open to new law school grads as well as experienced attorneys. The “rule” that you must have several years of experience, typically with a major law firm, in order to work for a corporate in-house counsel office does not necessarily apply to jobs in the 20 or so other offices that seek legal talent. For them, the experience bar is generally lower.

For More Information

You can read much more about these opportunities in our booklet titled JD Advantage Jobs in Corporations: Expanding the Legal Function, available in print from the National Association for Law Placement Bookstore, or the electronic edition, available from Amazon.com.

Special purpose districts (a.k.a. “special districts”) are one of the largest “hidden” legal job and career opportunity markets. The U.S. has more than 51,000 such entities, defined as independent government units separate from general purpose local governments (excluding school districts). In the aggregate, they directly employ tens of thousands of attorneys in both mainstream and JD Advantage jobs and also engage thousands of outside counsel ranging from sole practitioners to large law firms.  Like local governments, special purpose districts have a major impact on communities.

Their Justification and Creation

Special purpose districts are customarily created by local legislation to meet a specific local, often multi-jurisdictional need, such as a new service, a higher level of an existing service, or a method of financing, such as a transportation benefit district (airport authorities, light rail, and subway systems are prime examples). They are political subdivisions of the state (or more than one state) and come into existence, acquire legal rights and duties, and are dissolved in accordance with statutory procedures. Enabling legislation sets forth the purpose of the district, procedures for formation, powers, functions and duties, composition of the governing body, methods of finance, and other provisions. The districts are usually quasi-municipal corporations, though some are statutorily defined as municipal corporations.

Nomenclature

Special purpose districts cover a wide variety of entities, most of which are officially called “districts” or “authorities.” Not all public agencies so termed, however, are special purpose districts.

Their Work

The latest edition (2012) of the U.S. Census Bureau’s Census of Governments lists the following activities performed by special purpose districts:

• airports
• cemeteries
• conservation
• conventions and visitors bureaus
• corrections
• electric power
• fire protection
• gas supply
• harbors
• highways
• health
• hospitals
• housing and community development
• industrial development
• irrigation
• libraries
• mass transit
• mortgage credit
• mosquito abatement
• natural resources
• parking facilities
• parks and recreation
• sea and inland port facilities
• sewerage
• solid waste management
• stadiums
• water supply

Most special purpose districts provide only a single service. However, in some instances, their enabling legislation allows them to provide several, usually related, types of services.

Special purpose districts are becoming more popular. The trend nationally is toward the establishment of new special purpose districts to assume responsibilities that were formerly the province of municipalities. A second trend is the creation of larger, regional special purpose districts that transcend numerous municipal boundaries.

Theoretically, special purpose districts provide municipal services more efficiently and less expensively than municipalities. Special purpose districts may have taxing authority, charge fees directly to businesses and individuals for their services, and/or issue bonds.

Approximately 50 percent of special purpose districts are served by their own, independent law offices. The remainder usually rely on outside counsel.

Legal Work

Special purpose district lawyers perform many of the same functions as corporate in-house counsel in large companies, with an overlay of municipal law responsibilities that mirror some of the responsibilities of city or county attorney offices.

Never buy into the false mantra that the only ways to find a legal job are through (1) a posted job ad, or (2) networking. If you limit yourself to these two conventional job-search techniques, you will miss out on some golden opportunities. One alternative to the traditional approach is to identify backlogs, places and processes where the decision-making system is under stress due to a tsunami of demand. Call it the “Backlog Gap.”

What Am I Talking About?

“Backlogs” in a legal employment context means that the supply of adjudicators, legal support staff, outside representatives of petitioners, filers, claimants and other practitioners who can advise and assist employers and clients with coping with administrative processes is unable to cope with the demand. Anytime you identify such a backlog, think “job opportunity.”

Identifying a Backlog

Backlogs are often easy to identify through published data on government agency websites (typically in annual reports), legislative testimony (especially testimony from agency officials who appear at least annually before congressional Budget and Appropriations committees and subcommittees), a transcript of which is available from committee websites, and news media stories. Below, you will read about several specific examples derived from each of these three approaches.

Where Backlogs Are Most Likely to Occur

The most prevalent backlogs can be found in government agencies that: (1) hear or otherwise decide cases concerning benefit claims, (2) receive petitions for some kind of redress or remedy, (3) grant a license or its equivalent; or (4) are required by a new law to promulgate a large number of implementing regulations.

Benefit Claims

More than 50 federal agencies hold hearings where Administrative Law Judges (ALJs), Administrative Judges, Hearing Officers or Panels hear and decide on claims against the government or for benefits that have been denied at a lower administrative level. Examples include: the Social Security Administration (SSA) Office of Disability Adjudication and Review (ODAR), which holds hearings at 160 offices around the country as well as by videoconference; the Board of Veterans Appeals (BVA), which hears benefits cases in Washington, DC and throughout the U.S. at local Department of Veterans’ Affairs offices, as well as electronically; the Office of Medicare Hearings and Appeals (OMHA), which hears cases in Arlington (VA), Cleveland, Miami and Irvine, as well as via videoconference; and the Department of Labor’s four units that hear cases involving employee compensation, and black and brown lung benefits, among other appeals.

Petitions for Redress/Remedy

Many federal agencies decide cases where a petitioner requests redress or a remedy for an alleged wrong. They include, for example, the Equal Employment Opportunity Commission (EEOC); Army Board for Correction of Military Records; Air Force Discharge Review Board; Naval Clemency and Parole Board; U.S. International Trade Commission (USITC); and the Internal Revenue Service (IRS).

Granting of Applications

The U.S. government takes, reviews, and grants applications for a variety of activities, including drug and medical device approvals by the Food and Drug Administration (FDA); patents, trademarks and service marks by the U.S. Patent and Trademark Office (USPTO); and copyrights by the Library of Congress’s U.S. Copyright Office.

New Laws

Whenever a major piece of legislation that contains regulatory compliance and enforcement provisions is enacted, there is invariably a requirement that the relevant federal agencies develop and issue a host of new regulations. Examples include: the Higher Education Opportunity Act of 2008, which imposed more than 300 new regulatory reporting requirements on colleges and universities; Patient Protection and Affordable Care Act; Dodd-Frank Wall Street Reform and Consumer Protection Act, a 2,700-page monster that contained a mandate for almost 400 new regulations; and the Food Safety and Modernization Act of 2011.

Current Backlogs Smacking of Opportunity

More than 543,000 patent applications await action. Despite USPTO hiring thousands of new Patent Examiners in recent years, and opening four new Patent Offices (Detroit, Silicon Valley, Denver, and Austin), the first-ever offices outside of its headquarters office in Alexandria, VA, patent filings are setting new records every year. More than 750,000 trademark applications currently await review.

More than 1.1 million Social Security Disability Income hearings are pending and wait-time for a hearing is now over 525 days. SSA hired 400 new ALJs and an equal number of legal support staff in the last few years, and plans to hire an additional 250 ALJs in the next two years. In addition, the agency has moved to a data-driven system designed to expedite the benefit claims and hearing processes. Nevertheless, the backlog keeps rising.

667,000+ Medicare Appeals are clogging up OMHA. The backlog is climbing rapidly due to the aging population, catching both Medicare recipients and healthcare providers in this bind. The 5-step review process has virtually ground to a halt as OMHA ALJs watched their workload increase fivefold in just one year. OMHA is now receiving more appeals every month than it can handle in a year. Its parent department (Health & Human Services) predicts that the backlog will grow to more than 1.1 million appeals by 2021.

Veterans Appeals are backlogged by more than 400,000 cases, but are anticipated to go over 1 million without a substantial staff increase (36 percent). More than 50% percent of Iraq and Afghanistan vets are filing disability claims, many for Post-Traumatic Stress Disorder. BVA is overwhelmed with work. The wait for an appeal to be heard is now up to 1,300 days. More than half of all veterans’ disability appeals are sent back for another review — sometimes more than once — and must be addressed before new cases are opened.

EEOC Hearings involving only federal employee grievances are now up to a 73,000 backlog. There is a nine month wait for a hearing. A comparable backlog afflicts the EEOC private sector docket.

Immigration Courts are bogged down by a 586,000 hearings backlog. The 250+ Immigration Court Judges are strained to the breaking point.

Workers’ Compensation hearings at the state level are suffering from some of the same backlogs as the federal government, the primary reason being the aging population. Age fifty appears to be an inflection point above which work-related injuries and disabilities become increasingly more likely to occur.

Translated…

Backlogs mean job opportunities, both with the affected administrative agencies that must hear and decide cases, but more so with the firms and practitioners that appear before these agencies on behalf of claimants and petitioners. So, if you want to find a way to job-hunt that is different from what your competitors are doing, consider the backlog approach.