Successfully Transitioning from Government Law to Private Practice: Five Key Considerations

If you are as lucky as I was, you stumbled upon a public service job as a young lawyer and loved it so much that you made it a career. But all good things must come to an end. With retirement from state service looming, I had to decide if I was ready to retire from the practice of law for good. Add the uncertainty created by the pandemic and the sense of isolation it evoked, and suddenly, there I was in private practice!

After 36 years as a government lawyer, doing a job I loved, I never thought I would end up in private practice, and, to be honest, I was full of trepidation. The last 12 years of my public service were at the highest levels of a state agency, where I had been more a manager than a lawyer. Before that, I spent more than 20 years doing specialized enforcement work, much of it as a middle manager, which didn’t always provide opportunities to maintain the skills important in private practice. I worried. Would I be successful in private practice? Would I enjoy it? Was I making the right decision?

Now, with nearly three years under my belt at a well-regarded midsize full-service law firm, I can answer those questions all in the affirmative. Was the transition easy? In some ways, not really. What would I have done differently? Very little, but there are some things I learned along the way that all government lawyers thinking about private practice, no matter where they are in their careers, should weigh before making the leap. Below are the five most important factors to consider when thinking about a transition to private practice.

1. Are Your Skills and Interests a Good Fit for Private Practice?

An honest self-assessment is the first task a government lawyer should undertake when considering private practice. Is private practice right for you? What skills have you developed that will translate well to private practice? Are you a litigator with substantial trial experience, or do you work in legislative or executive branch policy? Do you have strong deposition and oral argument skills, or are you more of a researcher or writer? How strong are your relationships within government, and if you are a senior manager, what level of management have you achieved?

While it is true that more seasoned senior government managers who have developed an outstanding reputation in public service are highly valued for their significant experience, their close relationships within government, and their deep understanding of the inner workings of the various agencies within government, even government lawyers with just a few years’ experience may be of value to private firms. For example, prosecutors who have developed sufficient trial experience and strong litigation skills, particularly in high-profile or complex matters, are always in high demand, as are lawyers who have worked on complex policy issues involving highly regulated industries that are constantly under government scrutiny. It is common for attorneys who have worked at regulatory agencies or staffed legislative committees involving regulated industries to transition, as government ethics rules or other post-employment restrictions permit, to firms that specialize in representing entities that appear before such regulatory bodies.

A well-considered self-assessment is crucial, first, in helping you decide whether private practice is a good fit for you and, second, in helping you narrow your focus to firms that offer opportunities aligned with your skills and interests.

2. How Do You Plan to Develop Your Practice?

Because lawyers hired directly from public service necessarily bring with them no “book of business,” the first inquiry any interested firm typically makes of a potential former government attorney hire is, “Do you have a business plan?” Having a carefully considered and detailed business plan is vital to any successful transition to private practice. Drafting the plan will help you think through precisely what you want your practice to become and will ensure that any firm that hires you is on the same page when it comes to your potential for adding value to the firm, as well as how long it may take to attain that value.

It’s important to be realistic when preparing a business plan. Think through what you’d like the focus of your practice to be. If you are an extrovert and believe your skills and reputation are such that you could be a potential “rainmaker” for the firm, regularly bringing in new clients, then your business plan may reflect higher expectations over a shorter period of time than someone who perhaps is more of an introvert and expects to play, initially at least, more of a supporting role to more experienced lawyers with established clients, before eventually developing their own clientele.

Crucial to utilizing your inherent value as a government lawyer in a specific area or at a particular agency is marketing that value in a meaningful way. Your business plan, therefore, should also include a marketing plan. If you are bringing an entirely new expertise or practice area to a firm, how can you effectively market yourself to the firm’s existing clients, and how can you successfully draw in new clients? Or, if you are supplementing the skill sets of lawyers already at the firm, how can you best highlight your own unique qualities to ensure you become an essential part of any legal team?

Once you’ve laid out your marketing plan, it is important to explore with any interested firms whether and how they will support you in your marketing efforts. Will they provide a reasonable budget devoted to your expected marketing opportunities? Will they encourage your engagement in things that get your name and experience out there, such as making panel presentations, public speaking, teaching, or writing articles? And finally, will they cover the cost of attending important networking events, such as relevant bar association or other trade association meetings? Firms that balk at making this initial investment are likely not firms you will want to consider.

3. The Firm You Select Matters

While knowing you have a firm’s support to build your own book of business from scratch or achieve any other goal you have set for yourself is a key consideration in choosing the right firm for you, it is not the only one. There are several other factors you must explore with a firm to ensure that it is the right fit for you.

First, Is the Firm Reputable?

You spent considerable time in public service cultivating a stellar relationship as a professional, accomplished, and respected government attorney. It is, therefore, important to ensure that any firm you join is equally reputable.

Second, How Is the Firm Structured?

Firm structure varies, but most firms have a rigid tiered system of junior associates, senior associates, and then different levels of partners—some may be equity partners (they have “bought” into the firm), and some may be non-equity partners (they have not done so). Then, there are lawyers who have moved to senior status or are “of counsel,” usually meaning they have opted to become salaried attorneys with the firm. Depending on where you are in your legal career, the firm structure may be important to you. For example, if you are an experienced attorney, you would expect to be immediately considered for a partnership, and for firms that require equity partners to “buy in” to the firm, you must assess whether you can afford to do so. For some firms, this is the only option for a partnership. If that is not something you would be interested in, then you should likely remove such firms from consideration. If you are less experienced, you will want to understand what the firm’s expectations are for associates and how long it might take you to become a partner.

Third, What Is the Firm’s Compensation Model?

Many firms have “open” compensation models. That is, all the partners in the firm know what everyone else is making. Other firms prefer a “closed” system, where no one in the firm (other than management) knows the compensation of others. I have no preference between them, but there are attorneys who prefer knowing how they stack up against others, and if this is important to you, you should fully understand which system the firm you are considering employs.

Fourth, How Is Your Compensation Determined?

This is one of the most important aspects to understand about any firm you are considering. How compensation is determined varies significantly from firm to firm. Many firms have complex formulas that start with a base salary and then give attorneys specific credits for things such as “origination” (i.e., bringing in new business or clients). Other firms are very general (and somewhat mysterious) about how they arrive at compensation. It can become a bit dizzying keeping up with whether, in your view, you are being properly credited for bringing in business that others in the firm may handle or performing non-billable but important work for the firm or a client.

The same is true for bonuses. Some firms give bonuses throughout the year based on certain achievements or general performance. Others may provide bonuses at set times during the year for different levels within the firm. It’s important to understand how bonuses are awarded and what factors go into awarding a bonus before you begin working at any firm.

Fifth, Does the Firm Provide Any Important Non-Monetary Benefits?

For some, the non-monetary benefits are as important as the salary. Be sure to ask about the firm’s health insurance plan and whether employees must contribute toward the plan. Does the firm offer deferred compensation, and, if so, how does it work? Are there other perks provided by the firm that would be helpful to know?

Sixth, What Is the Firm’s Client Base, and Is It a Good Fit for Your Proposed Practice Area?

Particularly with smaller regional or boutique firms, it is important to know the firm’s client base. If the firm says it is “full-service,” what does that mean? Does it lean more toward litigation as opposed to counseling or regulatory work, or does it do both equally well? How strong is it in the area in which you have expertise? And, most importantly, who are the firm’s existing clients, and are they the sorts of clients with which you can engage to grow your practice and help expand the amount and kind of work the firm does for the client? If the existing client base is not a good fit for your area of practice, that means you likely will be building your client base from scratch. This will take time, and you and the firm’s management need to be clear on how long it could take to achieve an acceptable book of business and ultimate success.

Seventh, What Is the Culture of the Firm?

No two firms are the same; every firm’s culture is different. When considering a firm, be sure to spend time getting to know its culture. This was by far the best advice I received as I was contemplating firms. There are several factors to consider when examining a firm’s culture.

• Is there pressure to “bill, bill, bill!”? Every law firm is a business and must make money. And that means billing. But firms can have very different cultures when it comes to expectations for billing. If the firm culture is to set high yearly minimum billable hour thresholds and constantly hound you about billable time, that approach may not be for you. There are firms that take softer approaches to ensuring you are achieving the firm’s annual financial goals. Some have comparatively low or no minimum billable hour requirements, which may allow for a better work-life balance.
• Does the firm permit employees to work remotely? Since the pandemic, this has become a very big issue for employers and employees alike. As a result, most firms now follow a hybrid model and offer some flexibility during the workweek, allowing remote work two to three days a week. If that is important to you, firms that have stringent requirements about being in the office will likely need to be removed from consideration.
• What is the firm’s policy regarding time spent on pro bono activities or charitable work? This, too, can also be an important factor for some. It was a consideration for me, particularly coming out of the pandemic. I wanted to engage more in the community, and my firm does a tremendous job with this. It’s been a joy to be part of the many community projects my colleagues and the firm support.
• How diverse is the firm? This is perhaps one of the most important aspects to consider, as it is a factor that many potential clients take into account when choosing a firm to represent them. Ask how many of the partners are women, non-white, or LGBTQ. The answer will serve as a good gauge regarding the firm’s level of commitment to advancing diverse lawyers to senior positions. Most of the lawyers in my office in Tallahassee, where I practice, are women, many of whom are leaders in their profession and some of whom I knew before coming to the firm, which made my decision much easier.

Eighth, Are There Ethical Constraints That Apply?

Finally, before accepting any opportunity with a private firm, be sure you and your potential employer are very clear on any legal and ethical constraints that may apply to your post-government employment. For example, in Florida, state law prohibits any former employee of a state agency from personally representing “another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position. . . .” A similar two-year restriction applies to certain former officers or employees of the federal government. You should discuss any such constraints with your future employer before accepting employment so that the firm is clear on what you can and cannot do for the firm and its clients with respect to your former employer. A plan should be devised regarding how matters within the firm involving your prior agency are to be handled. Most importantly, there should be a procedure established at the beginning of your employment to ensure you are appropriately “walled off” from any discussions regarding any firm work related to matters you handled while employed with the government.

4. Be Prepared for a Slow Start: Patience, Patience, Patience

Particularly if you are starting a practice from scratch, be prepared for a gradual building of business. Patience is important, and if the appropriate conversations at hiring were had, the management will be patient with you. Use your downtime wisely. While assisting colleagues in the firm on their matters will keep your billable time steady, it’s important to keep your focus on your own vision. If your vision was to work as part of an existing team, of course, you will achieve that sooner than if you are building a practice from scratch on your own. But, if you are engaging in the latter, then you must regularly and aggressively market yourself and your practice by doing things such as participating in as many panels in your practice area as reasonably practicable, attending networking events, writing articles, and engaging in community activities that get your name and the firm’s name out there. Only by being consistently visible and keeping up your relationships with those who may refer business to you can you ensure you are leaving no stone unturned in achieving success in the new firm.

5. As You Gain Experience, Your Goals May Change, and That’s Okay!

Finally, once you find a firm that seems to be the right fit for you, it is important not to be too rigid about your business plan. You should begin by aiming for your goals and sticking with your plan in the first year or so, but as you gain experience in private practice, you may find that the clients you are attracting are shifting the focus of your practice in large or small ways. So, be sure to periodically review your business plan. Make sure you are on track to achieve your goals, and if not, adjust your plan to account for any unforeseen developments, good or bad. It is important to identify those aspects of your practice that give you the greatest satisfaction and modify your business plan accordingly. Part of the plan will always include marketing yourself. Marketing is a part of private practice that never ends, and allowing your plan to evolve is key to staying on top of trends and keeping your practice at the top of its game. It is also the best way to ensure a rich, enjoyable career in private practice.

Conclusion

Whether you are thinking of leaving public service for a private firm now or sometime down the road, weighing these key considerations before and during your transition will help you decide whether private practice is right for you and, if so, which firm best suits your needs. And, hopefully, it will set you on a new career path as rewarding as your career in government.