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Why Does the ABA Oppose Mandatory Retirement... But Not Other Alternatives for Older Lawyers

With the graying of the bar and an increasing number of law firms implementing mandatory retirement programs (topics that we posted on here and  here several months ago), it's not surprising that the ABA just addressed the issue of mandatory retirement at last week's annual meeting.  As reported by the WSJ Law Blog, the ABA adopted a recommendation that law firms reject mandatory retirement programs.  Right now, 57 percent of firms with more than 100 lawyers have such policies in place, but the ABA is asking these firms to rethink their policy.  According to the WSJ post, those opposed to mandatory retirement argued that it is inconsistent with other industry workplaces, where mandatory retirement is unlawful.  But opponents argued that the ABA should not tell law firms how to run their operations.

Though I have issues with the ABA adopting political positions, I don't find it inappropriate for the ABA to make recommendations to law firms about work-life balance, diversity or mandatory retirement -- since these issues directly impact practicing lawyers.  (I draw the line at ABA recommendations carrying any weight, but see nothing wrong with the ABA offering advice or recommendations as it did here).

At the same time, I find it ironic that while the ABA opposes mandatory retirement programs, it has also issued an ethics opinion holding that law firms can ethically make retirement benefits contingent on a lawyer's agreement to sign a non-compete clause (as a general rule, law firms cannot bind lawyers to non-compete agreements because to do so would violate the client's unfettered right to a lawyer of his or her choosing).   In other words, the ABA is willing to say that mandatory retirement is wrong.  But the ABA won't do anything to provide real relief to lawyers who are the victims of mandatory retirement who would like to retain their rightfully earned retirement benefits and at the same time, open a law firm that may compete with their former firm.  To me, this inconsistency suggests that while the ABA opposes mandatory retirement officially, in the end, it doesn't really care much about the plight of older lawyers.

Posted by Carolyn Elefant on August 16, 2007 at 07:22 PM | Permalink | Comments (1)


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