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April 2, 2007

NYSBA Age Discrimination Report adopted, but lacking

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:11 pm

      Over the weekend, the House of Delegates of the New York State Bar Association approved a report by the Special Committee on Age Discrimination in the Profession (Jan. 2007, 44-pp pdf.) which calls on law firms to end the practice of mandatory retirement for older lawyers.  The committee was created by Association President Mark H. Alcott and chaired by Mark C. Zauderer (press release, April 2, 2007).

The press release that accompanied the announcement of the Committee’s Report, on Jan. 19, 2007, stated:

ProfPointer Among the committee’s findings is that many lawyers achieve their greatest value to their clients as they grow older because their years in practice give them a perspective and judgment that is not available to less experienced lawyers. The Committee also noted that partnerships which rely on age as the determining factor for retirement “fail to make the more substantive, individualized qualitative analysis of the partner’s performance which, in terms of the firm’s well-being, is far more important that the partner’s advancing years.” 

The Committee offered the following suggested list of assessments to evaluate the individual senior partner’s continuing contribution to the firm’s well-being: “Criteria such as billable hours, business generation, pro bono activities, as well as the ability to create or maintain client relationships and the willingness to involve other lawyers in them and transition them to others, administrative activities, mentoring, collegiality, recruiting activities, marketing, and other functions that support their firm’s morale, reputation, growth, stability and profitability, are all relevant. These performance criteria, and not age, should help determine a professional’s employment status, duties and compensation in conjunction with the needs of the particular firm.”

 NoYabutsT  It’s readily apparent in my posting on ethics and the Graying of the Bar, that issues such as law firm finances and marketing, power dynamics between generations of partners, or even the legality of mandatory retirement under under equal employment opportunity laws, are low on my priority list when considering the graying of the bar.  Many able lawyers and firm managers are focused on those issues.   My concern is the effect of aging on the competence and diligence of legal service given to clients, along with the ethical responsbilities of the individual lawyer, his or her firm, and the professional as a whole as more and more lawyers work well past traditional retirement age.  Looked at from that perspective, the “Graying Bar” Committee’s Report is a dismal failure.

None of the assessment criteria mentioned in the Bar Association press release dealt with practicing law with competence, so I just read through the entire Report to see if the topic arises with the 40+ pages.  Here is all that I found, beyond the assertion that “many lawyers achieve their greatest value to their clients as they grow older” (emphases added):

1. At page 30, we are told  that “a senior partner can and should be evaluated individually in accordance with his or her unique attributes and interests and the firms’s generally applicable performance criteria, including the full range of strategic and tactical legal abilities and lawyering skills.”

2. At 35, one suggested assessment criterion is “the partner’s abilities and willingness to service . . . the firm’s clients.”

Over and over, the goals mentioned are the firms’s well-being and fairness to the senior partner.   I know there are members of the NYSBA who care about competent lawyering by aging lawyers.  But, I also know that words count — as do the absence of words.  We show what is important to us by giving it our attention.  Where is the NYSBA committee or task force that is attending to the ethical questions raised by the reduced (or, to be politically correct, changing) capabilities of the graying bar?  Curious consumers (and their advocates) want to know.


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