Ethics

May a law firm ask a lawyer who is applying for employment to draft a memo or prepare a response to a complaint as part of the application process?  What ethics issues are raised by this hypothetical situation?  Of course, a hiring law firm may ask an applicant for a writing sample to demonstrate competence in writing and analytical ability.  But when the law firm asks the applicant to draft something new on a pending matter, does this raise any legal ethics issues? 

From the perspective of the hiring law firm, if the applicant is given a legal assignment for a client, should the firm be required to obtain the client's consent to such an assignment?  If the assignment in any way discloses confidential information to the applicant, the law firm would need to obtain the client's consent.  However, before asking for client consent, the firm would need to assess the risks of disclosing confidential information outside of the firm.  Such assignments that include confidential information should probably not occur even if the client is willing to consent to the disclosure.  I suppose that an assignment could be sufficiently couched in generalities so as to mask the case and parties.  In other words, it could ask the applicant to research law on a particular issue.  But some legal issues are so public that the applicant could discover the parties and the matter involved. 

Additionally, if the applicant is currently employed at another law firm or entity, any work on the matter could breach the applicant's duties to present or former clients. Thus, even if the matter did not involve confidential information, one would think that the firm should be required to perform a conflicts check on the applicant and the applicant would need to perform a conflicts check with his or her current employer.  At that point, conflicts of interest principles seem to call into question the wisdom of the law firm's request that an applicant perform legal work to demonstrate competence.

The legal ethics issues are more clearly defined when the applicant is asked to do contract work or a probationary internship at the law firm when the applicant does not have current legal employment. But when the hiring law firm asks a currently employed applicant to do legal work, without such a formal relationship, the applicant should be careful not to violate duties that may be owed to current or present clients.