Temporary Legal Staffing: A Primer for Candidates
By Thomas F. Cushing, Esq.

Following the lead of most other segments of the economy, the legal community in the 1990s finally came to embrace non-career-track employment-including project or temporary personnel. A few firms have come so far as to build contingent staffing into their business structures as a hedge against uncertainty, but most firms' practices reflected a more grudging acceptance of the phenomenon. Given the wild gyrations of the legal employment market in the past year, it's likely that many firms will turn to temp staffing to fill immediate needs when the next recovery occurs.

This article, based on many years' personal experience with legal staffing issues in both national and locally-based agencies, will describe the work, the pay, the competition, and the agencies involved in the temporary placement business. It will also provide a Top 10 Checklist of tips for dealing with agencies--the better to inform potential candidates for engagement as temporary attorneys and paralegals.

The Work
While each potential opportunity will have unique elements, certain generalizations may be helpful. First, there are two major types of work, reflecting the goals of the firm or company law department, either: 1--increased capacity of common skills, or 2--addition of unique capability on either a "spot" or "trial" basis. Examples of the former would be developing a team of document reviewers in a major litigation; the latter might be an attempt by a firm to retain formerly referred-out business, or a General Counsel engaging an M&A expert to manage an acquisition project.

Second, the work tends to vary by type of provider. Large firms tend to hire temps to increase capacity, e.g. for those relatively junior, homogenous doc reviews, whereas smaller firms and corporations tend have more unique needs for more senior work-e.g. someone to handle the caseload of a departed partner, or to spell an employee leave-of-absence.

Third, the work tends to be Mid-range Associate level in terms of "degree of difficulty." Thus, it requires some significant familiarity with substantive practice and the processes of law firms--essentially disqualifying semi-annual legions of recent bar-takers awaiting (and awaiting! as we know) their results. Most firms are also partial to experienced attorneys who are already admitted in CA. Although it's not always clear that local admittance is strictly necessary to do the work, that preference avoids the need to analyze the issue, and also seems to be a source of some comfort in terms of both professional competence and familiarity with local practice.

Fourth, the work has traditionally tended to relate to litigation, rather than to routine transactional undertakings-probably a 2-1 split. Until very recently, however, experienced Corporate, IP and Real Estate practitioners were in very high demand. The overall statistic may reflect the relative proportions of such legal work generally, or relate to the fact that a litigation case is a classic "project" by its nature.

Next, there is a "hybrid" HR institution known as temp-to-hire. In it, the candidate is engaged as a temporary worker during some period wherein both Parties can determine whether an ongoing employment relationship is desirable. The duration varies, but should typically be three-months or longer, according to the industrial psychology literature. Where an agency is involved, the candidate may be "converted" to the firm's payroll during the mutual try-out period, upon payment of a fee that approximates a direct-hire placement fee, with credit given for "time-served" in the employ of the agency.
Finally, project engagements can vary widely in terms of duration, from a few days or weeks to perpetually part-time. Most often, the work consists of full-time episodes tied to project completion or other relatively certain events, like conclusion of an employee leave-of-absence. Occasionally, however, the much-coveted long-term part-time opportunity does arise.

The Pay
The work drives the pay, much more importantly than the particular qualifications of candidates (usually, they are over-qualified-see The Competition, below). It is almost always denominated in terms of time, usually per hour, and there is a very wide range of compensation: from $20 to low hundreds for attorneys, and from $10 to the forties or even fifties for very senior, specialized legal assistant projects. The great run of engagements fall in the $35-60/hour range for lawyers and $15-30 for legal assistants. Please note: compensation in the high extremes of these ranges is rare, and usually arises out of personal, rather than agency relationships.

It is important to note here that classification as an independent contractor or employee significantly affects compensation. Classification is a function of both IRS and not-entirely-consistent state regs, all of which concern factors like independence, duration, discretion over the means of accomplishing the work, and economic risk. Most attorneys and nearly all para-professionals are engaged as employees-of the firm or agency. The employer then pays a share of FICA and state unemployment comp taxes, and withholds income taxes at the employee's designated W-4 rate. A good rule of thumb is that an "employee rate" is about 10% better after-tax than a "contractor rate"--$50/hour as an employee being worth about $55/hour as a contractor.

Employees must also be paid promptly, within strict statutory time limits, whereas contractors might be paid only upon completion of the work--and then may also "bear the float" between that time and when the firm receives payment from its client. There can be a significant time lag in receiving such compensation, to say nothing of the possibility of bearing some collection risk. Finally, there are often differences in professional liability and other insurance coverages depending on the status of the worker. In light of these factors: 1--it is usually better to be an employee, and 2-it is always essential to be clear on these terms from the outset.

The Competition
"Fortune" magazine has called the Bay Area a "Brain Magnet," and that label certainly applies to the contingent legal work force. Another article by this writer attempted a census of the local contract attorney population. Suffice it to say there is a very capable, experienced talent pool of lawyers who prefer to work on temporary or part-time bases-for reasons unrelated to the job market.

The members of this prime group are typically from 5-15 years experienced, and have some life factors (e.g. parenthood, novels-in-process, business ideas, educational undertakings), which have disinclined them to traditional career tracks. Accordingly, they tend to be over-qualified for the available work-a real advantage for their employers, since they tend to be efficient providers of the services they're asked to contribute. They are joined by new arrivals to the Bay Area, attorneys in transition between jobs, newly minted lawyers and a few very senior practitioners who are keeping a hand-in. Available attorneys are most often litigators, with good corporate practitioners still in relatively short supply. Very specialized practitioners, such as ERISA specialists or patent prosecution attorneys, are rare.

Because of the continuing availability of specifically experienced attorneys, it is unusual for a lawyer to get to "try out" or transition into a new field as a Temp. Those opportunities are best pursued via personal contacts, rather than in competition with other contract attorneys.

The paralegal market is generally in much shorter supply across most skill sets, with good IP practitioners being particularly difficult to find. Thus, there may be better chances to create professional transitions via the temporary employment route among these skill sets.

The Agencies
There is some evidence to suggest that the very first enterprise to specialize in contract attorneys was founded right here in the mid-80s, although the original paralegal agencies here and elsewhere pre-date that timing by several years. Indeed, this segment of the staffing industry was once primarily a province of local agencies, but the growing popularity of professional staffing has drawn-in quite few major general-purpose staffing companies-sometimes with pseudonyms peculiar to the industry, and other times trading on their national names. The current market is a crowded mix of local and national firms, who tend to approach the market differently.

The Locals tend to take a lower key approach, trading on targeted relationships with firms and corporations established over time. Their recruiters tend to have been at this trade longer than many of their counterparts, and often they are owners of the firm. They may be somewhat less generally visible, given their typically lower promotional budgets. The same individuals tend to be involved in both ends of the transactions-both candidate evaluation and placement with clients. Some locals may provide fewer amenities than do their larger counterparts, in terms of benefits options, insurance and employment v. contracting, as above.

The national staffing companies tend to be more aggressive in terms of promotion to clients, they often separate "recruiting" (interviewing) from the "sales" (placement) functions, and their employees tend to be non-owners who may have less experience in the field and local market. They may be higher-tech in terms of their processes, making good use of database technology (although good staffing software is widely at reasonable cost), and sometimes offering employment benefits like direct deposit, 401K programs and holiday pay eligibility upon completion of qualifying hours.

Neither group is particularly high-tech in terms of e-commerce, although a few agencies have begun posting candidate qualifications on their websites in various ways, and some offer clients a means of searching for particular qualifications (cf. www.bels.com, and www.cblawlink.com). Job opportunities may be posted on agency websites, but this is more common with regular-hire ("permanent") positions, as the timing on temp jobs is typically quite urgent . As with most things related to the Internet, the importance of these capabilities will grow over time.

There are also important similarities among agency practices. All act as clearinghouses, filling orders from a roster of pre-qualified (interviewed) candidates, rather than custom-searching in all but the rarest of circumstances. All are compensated solely by their clients, usually by means of a mark-up percentage on the employee/contractor's pay. The mark-up percentage tends to be higher for lower paid positions, probably averaging 65-80% at the lower end, and 50-65% at the high end. There seems to be significant variation among agencies in their typical mark-up percentages at any particular level. That mark-up variability can make a significant difference to the candidate's portion of the total fee to clients. As a corollary, if a candidate can place her/himself directly in a particular position, s/he should command some significant portion of that mark-up for having performed the "marketing" function.

Because of the clearinghouse function, there is no exclusivity-of-dealing between candidates and agencies in the legal staffing market. It pays to be registered with more than one agency, and to interview with as many as will see you. Typically, registration is accomplished with a resume and cover letter. Because careful agencies always interview and reference-check before promoting candidates for particular opportunities, that follow-up step is important to your practical opportunities.

Finally, as a caution, we've noticed that not every agency seeks the candidate's permission in advance of sending that person's resume out to clients. This probably happens because of the general notion that "first-in-time is first-in-right" where two or more agencies submit the same candidate for a particular opportunity. Such duplication can also cause client confusion and agency embarrassment, however-and can damage the prospects or even preclude consideration of the candidate (clients hate agency cat fights). Thus, we believe it's important to confirm interest and availability ahead of promoting an individual to a client, as it avoids wasting their time on unavailable candidates. As a candidate, you may also prefer dealing with one agency over another, in terms of compensation, benefits, ongoing relationship or other source of personal choice. We thus recommend that you maintain control of your resume to the extent of requiring contact prior to submittal to clients.

Dealing with The Agencies
The following is a Top 10 Checklist for candidates to use when dealing with agencies.

1. Send your resume in clear, consistent, easy-to-OCR font (e.g. Times New Roman 11), as many database programs also offer OCR to facilitate keyword searching. Originals by e-mail or hard copy "OCR" better than faxes, and electronic faxes are better than mechanical faxes. Also, check your resume for applicable "keywords" likely to be searched by a recruiter.
2. Follow-up in a week if you haven't heard back from the agency, seeking to confirm their processing and ascertain their interest in conducting a "live" interview.
3. Bring an original of your resume, three professional references and I-9 form information to the interview. The I-9 form verifies your right to work in the USA. Most common verification data are a current or expired passport, or driver's license and either your social security card or birth certificate. A writing sample is also very helpful for agencies to maintain on-file.
4. Ask about the agency and get to know your recruiter: who are their clients? How long have they been doing this work? Do they handle both recruiting and placement? Do they share clients and/or candidates with their colleagues at the agency? How long have they and the agency been in-business in the Bay Area? How are they compensated, e.g. primarily salary or commission?
5. Ascertain whether you will be placed as an employee or independent contractor.
6. Ask about benefits availability, eligibility and waiting periods. Specifics include direct deposit, holiday pay, 401K accounts (contributory/non-contributory), vacation and health benefits and their terms.
7. Ask about mark-ups: what's typical of their practice, and whether they will reveal specific terms on particular engagements they offer you. Will everyone on a group project be paid the same?
8. Determine whether they will call you in advance of sending your resume out, and if not, why not?
9. Find out whether you will be covered by E&O or other liability insurance regarding your activities at the client's office.
10. Ask who bears the risk of collection from the client, and what happens if there's a dispute over hours billed or work quality.
    

In an important book titled "Job Shift-How to Prosper in a World without Jobs," author William Bridges predicts that we are moving toward an economy where every individual is CEO of his or her own skill sets. In that model's purest form, talented people will gravitate toward interesting work, do it and then re-form elsewhere, with others, on the next project. Obviously, we're not to that stage yet, but there is ample evidence of evolution in that direction. The legal profession will never lead the parade, but it is becoming cognizant of the significant benefits of temporary workers. We wish you happy hunting, and hope this primer will assist you on your way.

Tom Cushing is a founding Principal of Cushing Bicksler Group, which provides direct-hire and temporary placement services for attorneys, paralegals and other legal professionals in the Bay Area.