The Importance of Background Checks for Law Firms
A law firm background check can provide more than a well-rounded view of a candidate’s qualifications. If your firm is going to hire people, it needs to know who they’re hiring. These hires impact your firm’s ability to fulfill its ethical obligations and to promote a viable work environment.
At the very least, your law firm should be using a pre-employment screening service that includes verification of education and employment, as well as a nationwide criminal history search. Identifying issues before you hire a new attorney or support staff is definitely worth whatever due diligence cost you incur.
You may need to dig deeper, depending on the level of fidelity that the person would be entrusted with at your firm. Do you have to trust your accountant not to steal from you? Then spend the money to learn if he has ever been investigated for stealing at a previous firm. Ethical lapses track a candidate who has committed a variety of misdeeds , some of which are attorneys’ duty. Other violations of the law are categorized as crimes. They indicate that an attorney’s behavior isn’t trustworthy or sustainable. Even if an attorney has not been convicted of a crime, it still serves your firm’s interest to know that the person has not committed ethical violations that could be a bar to practice in most jurisdictions.
If the law firm hires an attorney who has recently been disbarred, for example, the bar association takes notice. The couple of thousand dollars you saved on that background check investment can be the difference between keeping your license and losing it after a disciplinary action. Your colleagues will remember the goings-on at your firm when you have let in a dangerous or unethical employee just to save a buck on due diligence.
Components of a Law Firm Background Check
A comprehensive law firm background check will include a variety of elements that seek to verify who the law firm is, what they are telling you about themselves, and determine whether or not they’ve been sued before, what their financial situation is, and what their reputation is in the community.
Criminal record search Depending on your reason for hiring the law firm, you may be concerned with their criminal history. Finding out if they have any convictions for crimes within the state or federal court system can go a long way toward helping you understand what type of people you’re dealing with.
Financial stability You must determine whether the firm has the financial wherewithal to handle your case. If they are a small firm, their financial situation may depend heavily on the cash flow from a few large clients and any income they generate through their hourly billing practices.
Bankruptcies If the firm has had bankruptcy proceedings in the past, this could be a red flag about their ability to manage financial situations and indicates a potential problem with internal controls over their accounting practices. They may also have experienced a recent level of hardship that could result in the loss of key staff members, which would probably have a negative impact on the handling of your case.
Civil litigation search If the firm has been sued before, this information can be crucial to know. Have they been sued multiple times for similar reasons? This is especially important information when it comes to hiring litigation attorneys, as a lawyer with a poor reputation among their peers for being litigious may not be the best choice for a case where a good relationship with the judge can make a major difference in the outcome.
Lawyer licensing status In order to ensure that the attorneys you are speaking with are licensed to practice law in your jurisdiction, you must examine their licensing status with the appropriate state bar association as well as any disciplinary history, such as numerous complaints filed against them or disciplinary action taken by the bar.
Professional references References can only be indicative of their professional reputation – not necessarily their personal one. It’s not uncommon for a lawyer to have a list of references made up of close friends, family, and clients that they have paid to act as references.
Legal Issues Related to Conducting Background Checks
It is important that you ensure the information obtained is accurate and in compliance with applicable laws and regulations. Be advised that not all background check programs are created equal. As an employer, you need to consider what is legally permissible before you begin your search.
EEOC Guidelines
The Equal Employment Opportunity Commission ("EEOC") guidelines require you to consider three factors when using criminal records as part of your background check: These EEOC guidelines require employers to ensure that the exclusion of individuals with particular criminal records is "job related for the position in question and consistent with business necessity." The Kentucky Bar Association has adopted this guideline in Rule 8.4, Comment 2. However you should remember that these guidelines are not prohibitive, and an employer will be entitled to ask questions about criminal history and exclude candidates for a range of reasons that are not inconsistent with the EEOC guidelines. We recommend that you set up procedures to determine whether the criminal history at issue disqualifies a candidate for a position in your firm.
Privacy Laws
Employers need to determine whether any state privacy laws affect how and what types of information can be obtained by a background check. A state may restrict the type of information that is made available in a report. In addition there may be restrictions on how employers may obtain information to be used in the background check. This is often the case where state license boards have limitations on the type of information they will provide in response to a request for information. States also limit the amount of time criminal matters can appear on the record. In Kentucky, misdemeanors and other minor offenses are removed from an individual’s record series after five years, while felonies are removed after ten years. States like Hawaii and California, do not allow employers to review any convictions older than seven years. Canada does not allow employers to obtain any information about criminal offenses that are older than five years. State laws will define what is considered confidential. For example, in Kentucky, arrest and interrogation records are considered confidential and, without written consent, an employer will not be able to ask any questions of the Kentucky Board of Nursing concerning these items. You should also be aware that information regarding a candidate’s education may be protected by federal family privacy laws. Before asking schools, colleges, universities, or other educational institutions for verification, employers must first obtain the applicant’s written consent. But no authorization is necessary if the information is obtained from an "educational institution where the claimant was enrolled and which the claimant attended" or from the National Student Loan Data Systems, which does not require an authorization. As an employer, it is your responsibility to ensure that you do not violate a potential employee’s privacy rights or violate the EEOC guidelines. If your firm has already violated the EEOC Guidelines, you could face liability for discrimination claims by the affected candidate.
How to Conduct a Thorough Background Check
Although each firm can organize its background check differently, the steps outlined below may be used as a guide.
- is to confirm the legal and ethical requirements for the industry within your jurisdiction.
- is to gather information about the individual. Information gathering is done through public records search (such as court records, professional certifications, real estate records, Department of Motor Vehicle records, and more), networking and contact their references, and observing social media activity. For example, a person who is willing to falsify their academic achievements may have an interest in expanding their educational past on social media. Additionally, a good professional reference will alert you to any behavioral issues.
- is to carry out the background checks. There are a variety of tools available. LexisNexis has an expansive people profiler that taps into their vast data resources and does so for just under $10. Yellow Pages and the white pages can be beneficial when looking for a personal connection. For example, a law firm that looks to cross-reference its prospective partner with a law firm at which he was a summer intern may find value in seeing the name of his contact person. Finally, professional associations may have their own database of members, but given the prevalence of membership in these associations they do not give a big enough picture. If people are affiliated with organizations that are less common, such as private groups, it can be more valuable to the company to be associated with those groups.
Ultimately, an investment in doing a thorough background check pays off.
Background Check Challenges and Solutions
One of the most common challenges when running a background check is incomplete records. This could be because a person was arrested years ago and moved to a different state before their records were updated, or it could be a result of clerical errors and out-of-date databases. Outdated information can be a big challenge too, especially if someone was arrested in connection with a crime that has in the meantime been decriminalized, giving the impression that they have a criminal history when in fact , they do not. Other common challenges could include an over-reliance on self-reported information, finding no record when it comes to social media, or falling for scams from third-party services conducting prayer requests under the guise of background checks. Many of these issues can be avoided by working with a trusted background check service like those offered through a company that operates under Fair Credit Reporting Act (FCRA) guidelines and state and federal laws.
Confidentiality and Ethics in Background Checks
There is a natural proclivity for anyone conducting a pre employment screen to want to tell as much as possible about the candidate and his or her background. There are significant federal laws and regulations that apply, however, that when ignored can result in major liability for your firm. Federal laws such as Title VII of the 1964 Civil Rights Act, the Fair Credit Reporting Act (FCRA), the Age Discrimination in Employment Act (ADEA) and the Americans With Disabilities Act (ADA) are all implicated as you consider how to conduct, retain, and analyze the information you gather.
First, it is important to note that there are certain exceptions to those state privacy laws that might appear to be applicable. The main state law exception is if the relevant information is either open to the public or if the firm is notified and provided a copy, under seal of confidentiality, by third-party governmental agencies that the records being requested about the employee are confidential. In addition, the records can be exempted from disclosure by a court or administrative tribunal. If there is a provision for the disclosure of the document under the seal of confidentiality, limit your inquiry to those specific items. Otherwise, you are in a major bind.
Going above and beyond what is required by statute can put the employer in a dangerous position. With this in mind, it is critical that the person that has been tasked with doing the initial screening of the candidate maintains strict confidentiality and doesn’t over share or over reach as to information collected.
In other words, it may be that the court or agency has information that is relevant for one purpose, but because the person conducting the inquiry doesn’t recognize the distinction, they ask the question in a way that can result in a strong argument that there was an invasion of privacy.
Not only should there be confidentiality notices on any written communications and/or documents used in the process, but the person who reviews this information for the firm must be aware that certain pieces of information, even if gathered legally, shouldn’t be disclosed. For example, even information that is legal to ask of the potential employee as part of the initial interview, wouldn’t be disclosed to any third parties.
The person doing the review of the background information must also be aware that they cannot use the information for other purposes; such as to discriminate against the employee if the information could be seen as a potential basis for discrimination.
The Future of Law Firm Background Checks
Background checks at law firms are evolving beyond basic criminal and credit record checks. The trend is to integrate AI tools into the hiring process. AI can scan a candidate’s public-facing social media profiles for red flags.
A recent report stated that AI is rapidly changing the outcomes of the hiring process and that 72% of firms that use some sort of AI tool say it is helping them find better candidates. These firms included those in highly regulated industries such as law firms.
Some of the processes being automated include: Many law firms now use Resume Screening software to quickly scan and filter resumes, using hiring criteria set by HR managers to weed out unsuitable candidates at a very early stage.
One of the most controversial trends is the wide use of psychometric testing. Ethical concerns have been raised about its use to match a candidate’s characteristics with those of top performers . Another concern is that psychometric testing is used mainly to narrow down the list of candidates quickly and that even manager-led interviews become a process of validating the psychometric results. The Psychology Profiler – Personalized Online Psychometric Assessments – is a very good example of this trend. Candidates are given assessments that help employers make better decisions without subjective biases. Other tools available, such as HR Tools – The PEAK Performance Appraisal System™, aim to help employers build a workplace culture that improves performance by optimizing employee development and enhancing team success.
Finally, there is AnRecruit – Video Interviewing + AI – that will conduct face to face interviews with candidates and analyse tone of voice, facial expressions and answers to determine suitability for a particular role. In a San Francisco start-up recently, none of the candidates even met a live person until they were hired.