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Mandatory Retirement at Law Firms

By his own admission, Bruce MacEwen of Adam Smith avoids staking out positions, preferring instead to focus on the in depth and astute quantitative analyses that have addicted his wide audience, myself included.  But in response to this New York Times story on law firms' mandatory retirement programs (12/08/06), MacEwen comes out swinging, decrying these programs as idiocy or atrocity and an inherently inhumane practice. And as I'll discuss in this post, many others in the blogosphere side with MacEwen, though as I'll conclude, I hold an opposing and apparently, minority view.

Before getting to his critique of mandatory retirement, MacEwen begins with the predictable justifications: younger partners need to take over client relationships, senior partners' draws mean less money for younger partners and senior partners are less productive. MacEwen dispenses with these arguments in short order. As to younger lawyers wanting a bigger piece of the pie, McEwen argues that today's firms are far better off than those of decades ago, which kept older lawyers on without any detriment to younger partners' earnings. As to the problem of underperformance, MacEwen correctly diagnoses it as an issue that afflicts some lawyers irrespective of age -- and should be treated on a case by case basis, rather than with a broad mandatory retirement policy. Finally, as to the rationale of "passing clients on to younger partners," MacEwen points out that clients may want to keep older lawyers with whom they've developed a relationship -- and they ought to have a say in the matter. 

For MacEwen, older lawyers have a valuable role to play in the firm. They can:

mentor, train, help transition client relationships to younger people, operate as ambassadors for the firm to important constituencies (lateral recruits, potential merger partners, law schools, even governmental and regulatory agencies).   They can, in other words, "dial back" while still providing valuable service to the firm -- service you might not want to sacrifice the high-priced billable hours of others to perform.

For a complete backstory on some of these issues, Jen Burke at Transcending Gender has an exhaustive overview of ageism at law firms, including the New York State Bar Association's recent statement that mandatory retirement is discriminatory and inhumane.  The Legal Profession Blog mentions the Times story here, as does WSJ Law Blog here, though the story only generated minimal comments from readers, which I'd attribute to what I'm guessing is WSJ Law Blog's  youth-oriented demographic. Finally, at Prawfs Blawg, Scott Moss analyzes the   legality of mandatory retirement programs.

As for me, I definitely hold a minority view on all of this.  First, if these older lawyers had the kinds of relationship with clients that is claimed, why don't more of them take their portfolios and walk, like the attorney Victor Morris described in the Times story. What I suspect is what I've written before: that many of the lawyers being sent out didn't have a stake in the firm or the clients, but were nothing more than highly paid employees. 

Second, I have to admit that it's difficult for me to feel sorry when these older lawyers, who've spent their careers earning millions at large firms, are told to leave. If there's ever a group of people who had options, it's this segment of the population. Many retiring biglaw attorneys have earned enough during their career so that they're not tied to a steady paycheck. They can teach, embark on other careers, start a legal clinic or consult with emerging companies. They can, if they have the portfolio, pack up their clients and start a new firm. They can run for political office or use their contacts to apply for judgeships. Why stay put for comfort when you have a whole new opportunity to leave your mark on the law? 

Posted by Carolyn Elefant on December 11, 2006 at 06:47 PM | Permalink | Comments (2)


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