Ruth Bader Ginsburg, the oldest Justice on the Supreme Court, will turn 83 next March. Antonin Scalia, her BFF, will hit 80 just four days before. (They're both Pisces!) If they were practicing in many Big Law firms, both would have faced mandatory retirement policies years before.
Sorry, Ruth and Nino. When it comes to many firms, 65 is too old to practice.
It's Not Just an Issue of Competence
When it comes to aging attorneys, many commentators focus on the perceived competency of retirement-aged lawyers. An article by the American Bar Association's Bar Leader is fairly representative:
An experienced, well-regarded attorney has given his heart and soul to the profession and his clients-and served them well. He's not yet ready to retire. But, due to aging, his hearing is going, his memory is spotty, and he's no longer serving his clients well.
CBS's long-running lawyer drama, The Good Wife, began its seventh season last night with Cary Agos stuck in a partner meeting full of snoozing septuagenarians. But when it comes to mandatory retirement ages, many firms say competency is just one piece of the puzzle. (Competency, of course, can be judged on a case-by-case basis. Many lawyers are incompetent long before they're 65.)
Some justify law firm retirement requirements as a way of keeping older partners from hanging on to clients for too long. An article in The American Lawyer argued last May that mandatory retirement makes firms stronger. "When aging senior partners preside over an eat-what-you-kill Big Law compensation system," 61-year old Steven Harper writes, "their only financial incentive is to hang on to client billings for as long as possible." Send those old mares to the glue factory, the logic goes, and let the younger foals start enjoying the big bucks.
A Common but Waning Practice
Mandatory retirement ages are common but not universal. A 2007 survey by Altman Weil found that 50 percent of firms with over 50 attorneys had mandatory retirement ages. Thirty-eight percent of those with the requirement forced lawyers out of the door at age 65. Thirty-six percent waited until they were 70.
Those numbers are likely to have declined in recent years, driven by age discrimination actions by the EEOC and the increased in lateral hiring. Last year, the EEOC investigated Deloitte over its mandatory retirement policy. The Commission had previously taken actions against Sidley Austin and Kelley Drye & Warren.
But it could be lateral hiring that pushes more firms to abandon mandatory retirement. Older partners with large books of business can often find firms that are more than willing to take them in. Sheila Birnbaum, the "Queen of Toxic Torts," left Skadden in part because of its mandatory retirement. She easily found a new home at Quin Emanuel. Richard Levin, a celebrated bankruptcy lawyer, ditched Cravath because of its retirement policy. Like Birnbaum, it wasn't hard for him to find a new firm. He's now practicing at Jenner & Block.
And, of course, even firms with strict policies can make exceptions. Fox Rothschild forced out its chair emeritus when he was 72, but has kept around one Murray Shusterman even as he's turned 102.
So don't worry, Ginsburg and Scalia. If you ever decide to go back to private practice, I'm sure some firms will make an exception for you.