My firm does/does not have a mandatory retirement policy. I do/do not believe we should have one.
Discuss.
This comes up because of the near-even split in the industry between firms that have such policies and those that don ‘t—57% of all firms with more than 100 lawyers do, and 43% don’t, according to Altman-Weil—as noted in "Desperately Seeking Seniors" in The American Lawyer.
Coincidentally, the New York State Bar recently issued a report urging firms to repeal or not adopt these policies, and is now asking individual law firms to pledge to abide by its principles. (The ABA has also opposed mandatory retirement policies.)
Let’s hear the case for these policies:
- Senior partners "have been making money for a long time, and for the young people to make more, the old people need to go," according to James Matthews III, a lawyer at Fox Rothschild who represents law firms in labor and employment matters.
- Younger partners can’t ascend to leadership until older partners are gone, and it’s important that younger leaders take over.
- "’Mandatory retirement allows a natural succession to take place,’ says Richard Davis, 61, a partner at Weil, Gotshal & Manges. At his firm, partners retire at 68, with a few exceptions made for so-called firm grandfathers who led Weil’s early development, like Ira Millstein and Harvey Miller."
- Older partners who know they’re facing sunset provisions will be more likely to share their clients with younger partners and enable smooth transitions.
- In lockstep firms, if older partners don’t perform on par with their younger (but top-of-lockstep) peers, moderate to severe economic wind-drag can be imposed.
- Finally, mandatory retirement helps avoid uncomfortable conversations about declining performance.
There’s the for side. Here’s the against side:
- Senior lawyers who don’t want to let go of clients won’t and don’t have to. This scarcely smooths the transition. Indeed, this seems to have been the experience of Pillsbury Winthrop, which just this year ended its "out at 65" policy. "Instead, Pillsbury will design a succession plan for each partner. [Firm chair James] Rishwain hopes that by inviting seniors to help set the terms of their departures, they will be more committed to transitioning clients smoothly."
- And what if senior partners are still profitable? In that case, kicking them out is "just lunacy," says Robert Link, Chair of Cadwalader. A man after my own heart, Link says that "economic arguments in favor of age caps are bogus." The assumption that seniors must leave to make way for younger stars assumes that revenues and profitability are flat. As Link observes, "As long as a firm is growing, it should be able to pay the lawyers driving that growth, be they 45 or 75."
- Finally, whence the assumption that age = unproductive? You may be physically more likely to bill 3,000 hours/year when you’re 40 than when you’re 70, but sight unseen I’d take the Rolodex of the 70-year-old over the 40-year-old’s on a dare. Moreover, are we such a youth-obsessed society that we’ve devalued perspective, wisdom, and the virtue of the long view?
You may be ready, at this point, to guess where I come out on this.
First, this is none of the bar associations’ business. Last time I checked, their job was to enforce professional standards (which is different from enforcing cartels), and to encourage the profession, in general, to aspirational goals such as more pro bono work, defense of the indigent and representation of the impoverished, participation in public service, continuing legal education, and, most broadly, promoting the rule of law. (See the footnote* for the full text of the "ABA Mission & Association Goals".)
I do not see, in that list of (mostly) admirables, any reference to overseeing matters of internal firm governance, much less micro-managing and second-guessing issues such as mandatory retirement policies. What new omniscience has infected them?
Second, if the issue is under-performing, you need to deal with that outside of the pretext of age. Underperformers need to be counseled, cajoled, submitted to moral suasion, and ultimately excused, be they 25, 45, or 75.
Third, if the question is passing clients along, this should come naturally with the territory and shouldn’t require the blunt instrument of enforced retirement. In the course of any typical client engagement, the firm will marshal an array of talent, bringing to bear promising associates, junior and mid-level partners experienced in "keeping the trains running on time" and getting the matter handled in a timely and utterly competent fashion, and lastly the sagacious seniors providing overall strategic direction and key insights. Clients expect to be exposed to this full range talents; lawyers expect to provide it. Burying everyone save the senior-most member of the team in the background is not only ineffective, clients will see it as bordering on the odd.
Finally, as to the "avoiding difficult conversations" argument? Get over yourself; and do so in a big hurry. That’s what you’re paid for. Or, as a friend likes to say, "there’s a reason they call it work." Hanging one’s hat on this should be the last refuge of a coward.
But perhaps the most important dimension of mandatory retirement is that it undercuts a dimension I’ve become more attuned to over time: Culture.
We all speak in reverential tones of the value of our firm’s culture, but it is not transmitted by osmosis or through WiFi in the reception area and conference rooms. The DNA of your firm’s culture resides most powerfully in its most senior members. Treasure that. Value that. Hand that down. Respect your elders to take a critical role in making it happen.
Or, to paraphrase Benjamin Franklin about our young Republic’s democracy, "You have a culture. If you can keep it."
*The "ABA Mission and Assocation Goals" follow, in full:
The following mission statement and Association goals were adopted by the House of Delegates:
ABA Mission
The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.
Association Goals
Goal I
To promote improvements in the American system of justice.
Goal II
To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition.
Goal III
To provide ongoing leadership in improving the law to serve the changing needs of society.
Goal IV
To increase public understanding of and respect for the law, the legal process, and the role of the legal profession.
Goal V
To achieve the highest standards of professionalism, competence and ethical conduct.
Goal VI
To serve as the national representative of the legal profession.
Goal VII
To provide benefits, programs and services which promote professional growth and enhance the quality of life of the members.
Goal VIII
To advance the rule of law in the world.
Goal IX
To promote full and equal participation in the legal profession by minorities, women and persons with disabilities.
Goal X
To preserve and enhance the ideals of the legal profession as a common calling and its dedication to public service.
Goal XI
To preserve the independence of the legal profession and the judiciary as fundamental to a free society.
If you see anything in there about second-guessing major policies of firm management, let me know.
