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Legal industry tackles ageism

iStock image used with permission.

A total of 1,105 complaints of age discrimination in the workplace were filed in New York state in 2009, according to the U.S. Equal Employment Opportunity Commission.

Of those, just four involved the legal industry.

Nationally, 22,157 charges of age discrimination were filed last year, 40 against law firms.

Age discrimination made up almost a quarter of the total employment discrimination charges filed in 2009. National Employ Older Workers week — Sept. 19 to 25 — is sponsored by the U.S. Department of Labor to bring greater attention to the issues older workers face.

The current economy has been tough for older workers to maneuver.

“I think the fact that we are in a very difficult economy adds some complex layers to that. There are reductions in staff and there are fewer opportunities for everyone going around, and of course, sometimes when there are staff reductions, the most senior people are most disproportionately affected,” said Justin L. Vigdor, senior counsel with Boylan, Brown, Code, Vigdor &Wilson LLP.

Age discrimination is prohibited under the 1967 Age Discrimination in Employment Act, which “promotes employment of older persons based on their ability rather than age and prohibits arbitrary age discrimination in employment.” The act covers virtually all law firms with 20 or more employees and employees or applicants 40 years of age and older.

New York’s Code of Professional Responsibility provides that it is “misconduct or grounds for attorney discipline for a lawyer or law firm to unlawfully discriminate in the practice of law, including hiring, promoting, or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status, or sexual orientation.”

The NYSBA through the years has introduced several efforts to prevent age discrimination in the legal field, said Vigdor, who also serves as chairman of the NYSBA’s Senior Lawyers Section.

In 2008, the NYSBA charged the Special Committee on Senior Lawyers with conducting a Senior Lawyer Survey. Of the 2,270 lawyers who responded, 74 percent retired between the ages of 55 and 69.

Of respondents who had not yet retired, 20 percent said they planned to retire before age 65, 23 percent planned to retire between the ages of 65 and 69, 24 percent said they did not plan to retire until after age 70 and 12 percent said they never plan to retire. Twenty-two percent of the attorneys who responded said they were uncertain.

The survey also resulted in the creation of the NYSBA’s Senior Lawyers Section, which now boasts more than 2,000 members. There are 11 committees within the section, all tasked with consideration of issues such as retirement planning, health and recreational issues, and even continuing education, particularly in technology.

Vigdor said the chief justices of both the U.S. Supreme Court and the New York State Court  of Appeals have adopted Attorneys Emeritus programs, which waive the annual registration fees and mandatory legal requirements for retired lawyers who still perform pro bono work.

Vigdor, 81, said he has reduced his hours and shifted some of responsibilities at his firm, but he does not plan to retire. He took on the title of senior counsel when he reached 75.

“I wanted to have a reduced commitment in terms of time and work load,” he said. “I didn’t want to retire and I still don’t want to retire. I want to keep being involved and I don’t want to rust away.”

What was found

The NYSBA appointed a special committee to report on age discrimination in the profession in 2007.

The committee studied practices in the profession that disadvantage lawyers because of their age, including certain hiring and firing practices, mandatory retirement policies, “up-or-out” policies, age-based hierarchical staffing of cases, policies concerning retention of counsel,  and the fixing of time charge rates and non-compete clauses combined with mandatory retirement policies, among other questionable practices.

Vigdor the state bar’s Senior Lawyers Section has developed efforts to dissuade firms from enforcing mandatory retirement age, and to allow lawyers to continue practicing as long as they are willing, able and productive.

“We have tried to get voluntary pledges from law firms that they would not require automatic retirement,” he said. “Many have a contractual retirement age built into their partnership agreement, and we have urged firms to remove such terms from their partnership agreements.”

When Boylan, Brown, Code, Vigdor and Wilson LLP was formed 15 years ago, Vigdor said he made certain no mandatory retirement age was included in his contract.

Increasing significance

As the first wave of post-World War II lawyers approach their early to mid-60s, the issue of age discrimination has taken on increasing significance.

Until recently, the NYSBA’s 2007 report states, lawyers older than 50 were only a minority in the profession. In 1960, for example, the median age of lawyers in the United States was 46. By 1980, after the baby boomers entered the profession, lawyers’ median age dropped to 39.

Today, the median is rising once again.

“By the year 2018, the youngest baby boomers will be in their mid-50s and the oldest will be in their early 70s,” the NYSBA report states. “This large number of lawyers who, within a narrow span of years, will all reach the chronological point at which most Americans retire, will lead to renewed and urgent evaluation of how law firms should manage the experience of retiring from the partnership.”

Not only are more older attorneys working today, but the number of practicing attorneys generally also continues to rise: The number of lawyers has increased from about 300,000 in 1960 to 1 million today.

“Many lawyers choose to stay in practice into their 60s or later, either because of client demands, the satisfaction which they derive from the law practice, or because of personal financial needs,” the report also states.

The members of that group, especially within firms of 100 or more lawyers, are impacted most directly impacted by age-based mandatory retirement policies, according to the 2007 report.

Vigdor said with age comes experience, wisdom, and also name recognition in communities, all of which can help bolster a law firm’s reputation.

“Other cultures venerate age,” he said, “but we have always, here in the United States, tended to be more youth-oriented.”

“There are certain advantages based on experience,” he said. “One could also argue that it really is an irrelevant factor, and that it should be based on the individual. Some individuals are old and useless at age 40, so it really is something that should be determined on an individual basis, not chronological age.”

Amy Cavalier is a Rochester-based freelance writer.