Please provide an in-depth narrative. It is imperative that all recommendations, particularly negative recommendations, be appropriately supported. Committee members not in agreement with a committee recommendation should feel free to submit any concerns or questions they believe have not been resolved, either with the circuit report or as a separate mailing, addressed to the College’s Executive Director. If you wish, you may submit a cover letter with these materials outlining the recommendations of your committee; however, this letter does not relieve you from completing and returning a Nominee Evaluation Form for each candidate. Applications without a Nominee Evaluation Form will not be forwarded to the Board Credentials Committee (BCC) for final review.
Attached as Tab 1
With any questions or concerns, it is suggested that the first phone call be to our Executive Director, Susan Wan. Susan can either answer the question or point you in the right direction. In addition, the Board Credentials Committee has also designated liaisons to each circuit committee, who will be checking in with committee chairs during the process. Any confidential issues concerning a nominee should be directed to a member of this committee. Below is a breakdown of committee assignments
Arlene Steinfield – 1st, 5th and 10th Circuits
Yona Rozen – 2nd, 3rd and 11th Circuits
Cynthia Nance – 8th, 9th North, 9th South Circuits
Lori Ecker – 6th, 7th and Canadian Circuits
John Higgins – DC and 4th Circuits
CCCs should evaluate a candidate based on their entire body of work, not only the practice area they currently identify with. A recent change in practice area should not be the sole reason for a candidate to be denied admission. Similarly, CCCs should not disqualify a candidate who has recently relocated to a new circuit and is not well known yet. The full career, in all locations where the candidate has practiced and the groups therein, should be reviewed.
Clerkships early in a candidate’s career (first three years of practice) will count towards the twenty-year requirement. However, career law clerks will have to establish their labor and employment law practice as stated in the bylaws and as requested in the Nominee Part B – Advocate Form, question no. 9.
If a Circuit Credentials Committee (CCC) member is a nominator, the member can participate in discussions regarding the nominee, but must recuse him/herself from the final vote. If the CCC member is a law partner or colleague in the same organization as the nominee, the member must recues him/herself from the discussion as well as the final vote. If a CCC member is listed as a reference for a nominee, the member can participate in both the discussion and final vote for the applicant.
Instead of asking circuit credentials committee to do additional research to confirm that nominees do in fact meet the 20 years in practice rule, the responsibility should be placed on the nominee to verify they are in fact eligible. As such, the newly amended bylaw language regarding membership will be included in question no. 9 of the Nominee form.
Nominees will be asked to identify specifically the adversarial references listed on their application, in an effort to more easily confirm that this requirement has been met.
Often we are faced with the question of considering the spectrum of references provided and the weight that a committee should place on the variety of such references. Although the application form states that “where appropriate a broad array of references, including regular adversaries, is strongly encouraged,” committees should keep in mind that there will be exceptions to this standard, specifically academics, sitting judges, arbitrators, government officials and in-house counsel, whose exposure to opponents or court cases may not be as common. This lack of exposure to opponents or major litigation experience is not in and of itself reason for a recommendation against membership. References should be of a professional nature as opposed to a social nature, and where appropriate inclusive of opponents, judges, arbitrators and clients.
Circuit Credentials Committees are advised to review each candidate thoroughly and determine who is highly qualified in accordance with the information available. In an effort to have one standard of diversity, and not thirteen, the issue of diversity will be resolved at the Board Credentials level. Please use this same guideline when reviewing multiple candidates from the same law firm. If desired, you can point this fact out in a cover letter or on the recommendation form.
A due process procedure for addressing allegations of disqualifying nominee conduct is attached as Tab 2.
With respect to the reference reply forms received for a particular nominee, if, two weeks before the final recommendation is due, a minimum of four references have not been received, and follow up phone calls have been made, a CCC member will call both nominators and they will be advised that their nominee’s selection is in danger due to the lack of responses from the listed references. If, when the final committee vote is taken, the nominee does not have the minimum number of references, the nominee evaluation form will be completed as “Unable to Respond”. The candidate will receive a letter stating that he/she may re-apply the following year; however, if references do not respond timely the following year, he/she will not be allowed to re-apply for three years.
As you evaluate a government attorney candidate, please consider whether the individual is either setting or effectively recommending agency or departmental policy in the promulgating of rules, regulations and programs and/or deciding whether to bring litigation and the manner in which that litigation is conducted. In carrying out those responsibilities, the nominee should have earned the respect of the public and the community which the Agency or governmental department services by: 1) engaging in principled decision-making that takes into account the facts, the law, and parties’ position; 2) reaching out to the public by being accessible to individual members of the bar, speaking at labor-management employment conferences, participating in bar or association projects and similar initiatives; 3) and effectively facilitating the resolution of conflict by actively and creatively pursuing settlement at appropriate stages or by bringing parties together so that accommodations can be made.
As you evaluate an in-house counsel candidate, the usual litigation criteria would be applicable, to the extent that the nominee is involved in litigation. Further, as to being a student of the law, in-house counsel would more likely be involved in state bar activities or be associated with other organizations that have a legal or community service orientation. In addition, eligible in-house counsel would be people who have taken the lead on projects such as diversity which could impact the activities of corporations, associations or labor organizations.
The ideal candidate for the College is a person who has not only earned the respect of clients, opposing counsel and the courts, but who also shows evidence of a preeminent practice reputation such as published writings by way of articles, law journals and learned treatises; speaking engagements at well recognized forums on issues involving labor and employment law; leadership by service as officers or other positions of responsibility within organizations of the Bar as well as external community organizations; academic achievement such as professorships in the area of labor and employment law, or other similar teaching assignments; engaging in significant pro bono activities, as well as community activities within their local, regional or national communities; or distinguished government service in the area of labor and employment law. It is important to remember that each candidate should be judged on this standard, and not how they compare to the other candidates in their circuit.
The ideal candidate for the College is a person who has not only earned the respect of clients, opposing counsel and the courts, but who also shows evidence of a preeminent practice reputation such as published writings by way of articles, law journals and learned treatises; speaking engagements at well recognized forums on issues involving labor and employment law; leadership by service as officers or other positions of responsibility within organizations of the Bar as well as external community organizations; academic achievement such as professorships in the area of labor and employment law, or other similar teaching assignments; engaging in significant pro bono activities, as well as community activities within their local, regional or national communities; or distinguished government service in the area of labor and employment law. It is important to remember that each candidate should be judged on this standard, and not how they compare to the other candidates in their circuit.
The required number of references that a candidate is asked to provide will now be eight (8), with at least one of the two adversarial references coming from an opposing counsel in a legal proceeding. References should include attorneys who can address skill and conduct from the past five years, but no longer than ten years. Circuit Chairs are also asked to ensure that Nominee Evaluation Forms completed by individual committee members all contain descriptive comments and that the format is consistent on every form.
The Guide of Judiciary Policy addresses concerns that some have raised regarding the use of sitting judges as references is attached as Tab 3.
The solicitation of comments from our Fellows regarding candidates is a very important aspect of the election process and should be given serious consideration. However, when reviewing a candidate’s materials, please keep in mind that any verbal comments which directly contradict a written reference from the same person cannot be accepted. As we acknowledge a Fellow’s right to remain confidential in his/her remarks, we are unable to accept any contradiction of those remarks. It is also important to remember that written reference letters are confidential, and
any copies not returned to the College offices with the Nominee Evaluation forms should be destroyed at the completion of your Circuit Credentials Committee duties.
The CCC chair or committee members should advise the Fellow that any claims will need to be verified in order to be considered during the nominee deliberation and strongly urge the Fellow to assist the committee to this end. Please stress that confidentiality is a top priority. Committees should not consider anonymous accusations or claims that cannot be verified or confirmed.
1 Year Wait – This is given to a nominee who would have been deemed highly qualified but for certain limited shortcomings such as incomplete or inadequate reference response, diversity of references, listing of all scholarship and leadership activities. These are considered to be curable items for the nominee and the nominators may resubmit the nomination the following year, subject to doing so timely.
3 Year Wait – This is given to a nominee whose shortcomings with respect to qualifications required for admission are not considered likely to be curable in one year. By way of illustration and not limitation, such shortcomings may be the absence of sufficient scholarship in the field of Labor and Employment Law; the absence of demonstrated leadership; questions related to the nominee’s civility and professionalism, all resulting in the absence of a consensus among the Board of Governors that the nominee is highly qualified. The three-year wait will provide a nominee the opportunity to build a stronger resume. Following the three-year wait, the nominee may be re-nominated.
5 Year Wait – This is given to a nominee wherein serious concerns have arisen regarding the nominee’s professionalism and civility; where there has been a substantiated allegation of disqualifying behavior; or, where, in the view of the Board, the nominee does not now have nor will likely develop the qualifications in order to be considered for admission. The wait for re-nomination is five years. The Board believes that no nominee should be told they can never apply again, but a five-year wait infers that it is highly unlikely a nominee will be admitted as a Fellow.
Attached as Tab 4.
Attached as Tab 5.
