Law Schools

The Job After The Clerkship

How does a clerk go about securing their long-term future?

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The NBA Draft, i.e., that night we force the most talented young basketball players in the world to work for one of 30 teams, even if they have no desire to spend their early 20s in Oklahoma City — have you seen Westbrook’s usage rate, do you want to play with him — took place last night.  And while the draft dominated the news cycle, not to mention my TV, all the way through to the selection of Vanja Marinkovic, those deeply enmeshed in the realm of legal employment know that late June is when federal clerkship season is in full swing.

Judges who adhere to the latest attempt at a Law Clerk Hiring Plan have started to receive applications from rising 3Ls, while those off the plan are finding their mailboxes full of applications from rising 2Ls, as well as some very focused middle schoolers.  This time last year, I discussed whether law students should try and land a clerkship, either directly after graduating or at some point in their legal career.  In case you missed that piece, the short answer was “very much so,” which is as true in 2019 as it was in 2018.  I do not want to retread that ground, but rather, talk about what comes next.  By their nature, clerkships are of a finite duration, unless you happen to land a permanent clerkship right out of law school, an event that is highly unlikely unless you happen to share the same family tree as the judge in question.  And even if you string together multiple clerkships — back in my summer associate days, there was an associate who had recently come to the firm after six(!) years of clerking, three in federal district court and three at the appellate level, the latter of which was divided over multiple judges — at some point you will have to leave the warm embrace of the judiciary, likely for some sort of legal practice.  So how does a clerk go about securing their long-term future?

I remember the first day of my clerkship, all the term clerks from the various judges in the courthouse gathered to have wisdom imparted upon us by some of the judges and current clerks.  Much of that day is lost in the recesses of my memory, but the one thing that stands out was a piece of employment advice.  “Spend your first week here figuring out what you are going to do when you leave,” we were told.  While not perfect advice, the general idea holds true some decade-plus later.  If you wait until the end of your clerkship to figure out from where your next paycheck will come, you might be waiting a while.

How to approach the post-clerkship job search varies depending on your employment circumstances prior to the clerkship.  For those seeking to enter, or return, to private practice — and given the nature of clerkship bonuses these days, I cannot blame you — if you have a post-graduation employment offer in hand or are currently practicing, it can be as simple as checking with both your judge and the firm to make sure they do not object to your having ties to the firm during the course of your clerkship.  For those clerking directly after graduation, this would mean accepting your post-graduation firm offer, but pushing back your start date until the end of your clerkship.  The benefits from such an arrangement are mainly monetary.  Law firms are likely to treat you as they would any incoming associate, including paying for items such as a bar prep course, which can get quite expensive.  There’s also the piece of mind that comes from being able to focus solely on your clerkship, as opposed to what you are going to do afterwards.  But there are some drawbacks to this arrangement.  If you have accepted an offer from a firm, it likely means you will not be able to work on any matters in which your firm is a part.  This will probably not have much of an impact if you are set to work at Skadden after your clerkship in the District of Idaho, but could be significant if your plans after clerking on the D.C. Circuit involve working at Covington.  Such a restriction not only means you might be prohibited from working on interesting cases, but you might also run afoul of your co-clerks and even your judge for the extra burden placed upon them by your restrictions.

That is why many judges will not allow their clerks to have accepted an offer or otherwise agree to work for a particular law firm after their clerkship is complete.  Some firms will respond to such a prohibition with a wink-wink arrangement in which you aren’t formally employed, but all parties understand the opportunity is there waiting for you.

However, such a situation is likely going to be limited to clerkships of a year, maybe two.  When the duration of your clerkship extends too far into the future, firms are hesitant to guarantee you a spot, if for no other reason than the fact they cannot project what their needs will be three, four, five, or six years into the future.

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Thus, in some circumstances, recent graduates or experienced attorneys truly are free agents — being able to pick your own employer, rather than having it dictated to you by what Adam Silver reads out on a stage in Brooklyn, five minutes after Adrian Wojnarowski told the world via Twitter, what a concept.  For those seeking to make their way into Biglaw, to the extent your judge will allow it, network and apply for positions as soon as possible into your clerkship tenure.  For those clerking on a trial court, you are going to see LOTS of attorneys on a daily basis.  If you are looking to stay in the same geographic area where you are clerking, take advantage of this frequent interaction.  Even if you cannot directly apply for a job, see if you can grab some coffee with the attorney, though it is best to wait until the particular litigation that brings the attorney before the court is complete, to avoid any ex parte concerns.  If direct networking is off the table, impress your potential future employers with the work you turn out as a clerk and the professionalism you show during your interactions.

Post-clerkship opportunities are not merely limited to Biglaw.  Indeed, a number of highly selective boutique and specialty law firms are only interested in hiring associates coming off clerkships.  There will be a subset of private practice employers that you might never even heard of during the recruiting process in law school that will now be available to you.  Furthermore, one of the great benefits of clerking directly after law school is that once the clerkship is complete, you become an “experienced attorney” in the eyes of entities such as the U.S. Department of Justice.  Hence, while the only way to break into the DOJ directly out of law school is through the DOJ Honors program, those who have completed clerkships are eligible to apply for a range of Assistant U.S. Attorney and Federal Public Defender positions  that are earmarked for experienced attorneys.  Again, if your clerkship is at the trial level, you should have ample opportunity to meet and impress these governmental attorneys, especially if you are handling a substantial criminal docket.

2010 was a problematic time in both the nation (e.g., the rise of the TEA party) and in the realm of legal employment (it was called a “lost generation” on this website for a reason).  But there was a beacon of hope at that time called Jersey Shore.  I do not have enough digital space to list all of the ways those eight young(ish) people influenced American culture, but apt for this discussion is the idea of “the shirt before the shirt”:

When heading off to clerk, remember that it is going to be the job before the job, so you better be thinking of what you are going to do next, lest you end up like The Situation and in jail for tax evasion.

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Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at [email protected].

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