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Is Changing One’s Practice Area During a Downturn a Good Idea?

"I have been practicing as a litigator for the last eight years with a law firm and I am ready to make a change. I am not interested in becoming a partner. Ideally I’d like to go in-house. I did a short internship with a company and I really enjoyed it. However, when I look around there are very few in-house litigation positions available. The one’s I have applied for have been so competitive that I’ve never come close to an offer. I am an accomplished litigator working for a big law firm, but I am not a Harvard law school partner with twenty years of trial experience. I am trying to transfer to a transactional practice to improve my chances of moving in-house. It’s nearly impossible to do at my firm as our own transactional attorneys have just enough work to sustain their practice, and I do not want to jeopardize my position there. I’ve tried to apply to more junior-level and temporary transactional positions with both law firms and companies, but I am being told either that I don't have sufficient experience, or that I am too qualified to take a junior role. I know the economy is not good, but what can I do to change practice areas?” Desperately Seeking New Practice.
At best, making a practice switch during a good economy can be challenging – making the switch during a bad economy can simply be a bad idea.
  • Are you sure you want to set aside eight years of litigation, just to improve your chances of going in-house?
  • Are you sure that a practice switch will help you secure an in-house position?
  • Has your short in-house exposure been sufficient for you to give up the law firm practice altogether?
  • How do you know that you will enjoy or be successful as a transactional attorney when you have not had any experience in this area?

Assuming you’ve considered some of these questions, and you are still ready to start over as a transactional attorney, there are a few other things to consider. Yes, the economy is not good, but even in the best of times “practice switchers” have a hard time making that transition.

Consider this: Why would anyone hire you in your chosen new practice area when they have hundreds of applicants with extensive practical experience in that field? Law firms are not known for being risk takers or for thinking outside the box when it comes to hiring. They are a business trying to maximize their profits, and when you consider the investment it takes to hire and train an associate, the return on this investment has to make sense. Given the choice, they will hire an experienced transactional attorney, or a junior attorney with some transactional experience, rather than an experienced litigator without any transactional experience.

What if I am willing to take a pay cut and take a junior-level position?

Your rationale makes sense - both the law firm and the clients would benefit from your years of experience as lawyer, even if practice-wise you were still a bit green. Unfortunately, the issue is not quite that simple.

There is the issue of training which can be expensive, and rocking the class boat which law firms are steering clear of. In other words, if you joined a firm as a junior associate, you would be given assignments to help you train as a transactional attorney. These would be relatively simple projects, or pieces of larger, more sophisticated deals.

But after a while, if you are as good as you should be at your level, you will not very challenged with these assignments. You will find yourself asking for more sophisticated work, more client contact, and more responsibility. Suddenly those loyal senior associates who have given their blood, sweat and tears to their firm for the past 8-10 years will see that there is yet one more person being pushed ahead of them. Their loyalty and perseverance will have been diminished by a comparatively newcomer to the firm. Morale is a fragile, an intangible element that law firms don’t like to tinker with, especially when they don't have to.

What about companies giving me a shot?

Corporate legal departments are not good training grounds. Companies that hire in-house counsels are looking for attorneys who are self-sufficient, who can work independently, with little support, and almost no supervision. This is not a place where you will be taught skills, or have much of an opportunity to learn from more senior counsel. It will be assumed that you are already skilled in your practice area, can handle all of the documentation and processes that come with it, and can now provide strategic advice to your company, and oversee the legal work of potentially more experienced outside counsels.

The economy makes a difference. During a downturn, it’s better to stay put.

Firms and corporate legal departments are shedding staff. Nobody likes to have to do that. Why would they take on someone from the outside to retrain when they could have one of their own to retrain, or get 100 resumes tomorrow of candidates who already have the practice experience they need? If you can think of an answer, that is your way in; if not, I fear your prospects are bleak.

In a competitive job market, attorneys who are looking to switch practice areas will have very few opportunities to do so, unless they are switching to a practice area where candidates are in short supply and demand is high. A transactional attorney looking to transition into bankruptcy, or a litigator looking to specialize in bankruptcy litigation may have better prospects. However, in a down economy like ours, there are very few practice areas where candidates are in short supply. And demand has never been lower.

If you are still doing well at your current firm, I would encourage you to wait for the market to turn before switching practice areas. If you are still convinced that changing discipline is the answer, then I would suggest taking training courses, and acquiring practical experience by getting involved in pro bono projects, or by volunteering your services to non-profits and legal aid organizations.

At least, by exploring ways to acquire practical experience, you will be able to determine whether this is something you enjoy and want to commit to when the market turns around. Moreover, you will have acquired some technical and practical skills, and hopefully be more competitive when opportunities present themselves. Good luck!

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  1. We get lawyers contacting us all the time about this, and it can often be said in the profession across the world that the grass is always greener on the other side of the fence.

    In house lawyers often want to get into private practice, and private practice lawyers want to get into in house teams.

    Our usual advice is to dabble your toe in the water before you dive in, and go and get some experience if at all possible – you may be pleasantly surprised or similarly shocked by the work, and decide not to take it.

    I have coached a number of lawyers who have made what they thought was their dream move, only to find that it wasnt and they are stuck..

    Good luck!

    Jonathan Fagan, MD, Ten-Percent Legal Recruitment Consultants, London United Kingdom.

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