How old is too old?

That's an issue facing lawyers across the country as the American Bar Association and state organizations consider proposals to eliminate mandatory retirement ages at many of the biggest and most prestigious law firms.
 
Forced retirement at an arbitrary age -- as early as 60 in some cases -- creates openings for new partners and helps firms avoid tough decisions on whether an older partner is still performing up to standards.

"It's easier to have a bright-line test" -- a clearly defined rule -- said Drew Berry, chairman of the executive committee at McCarter & English, New Jersey's largest law firm.

That way you avoid the difficult problem of making distinctions between two partners, he said. "How do you tell one he can stay and one that he can't?"

But forced retirement can also cost firms some of its most skilled and productive members, including some who might take clients with them, Berry said.

Last month, the ABA endorsed a recommendation from the New York State Bar Association that calls upon law firms to discontinue the practice. Law firms should evaluate senior partners individually based upon the performance criteria used to evaluate other lawyers in the firm, the ABA said.

"Senior lawyers should not be forced to leave their firms solely on the basis of age when they have many productive years left and are still making valuable contributions to the firm," said Mark Alcott, a past president of the New York bar association.

"Forcing lawyers to retire solely because of age, regardless of performance, regardless of objective criteria, is not an acceptable practice and not in the interests of the legal profession," he said.

Because law firms are partnerships, the partners are owners, not employees. As a result, firms can have mandatory-retirement policies despite laws that make them illegal for some of their clients.

But change may be coming.

"While young lawyers represent our tomorrow, we also have a cadre of experienced lawyers who still have much to offer our association and our profession," Lynn Fontaine Newsome, president of the New Jersey State Bar Association, said in a statement on the association's Web site.

She has endorsed a program to explore ways to "reengage senior lawyers so that we can all benefit from their accumulated knowledge and expertise, and enable them to continue to be active bar members."

That's what has happened at Hackensack-based Cole Schotz Meisel, Forman & Leonard, Bergen County's largest law firm, which has no mandatory retirement age.

"What we have is a very flexible arrangement," partner Steven Leipzig said. "We recognize that partners and senior members of the firm continue to make valuable contributions to the firm well into their 60s and 70s."

Name partners Morrill Cole and Edward Schotz are both in their 70s "and continue to practice law vigorously and make a valuable contribution to the firm," Leipzig said.

Absent forced retirement, the firm can attract older partners from smaller firms that will give them and their clients continuity, he said. "That certainly benefits the firm."

Practical considerations prompt some firms to rewrite their rules, as happened at Newark-based McCarter & English this year.

"Like many law firms, we are in transition," Berry said. "We have had for many, many, many years -- try 35 years -- a mandatory retirement age for equity partners of 70. That meant after age 70, you would cease being an equity partner. You could be 'of counsel,' meaning you kept your desk and secretary. But it was all very informal, and you didn't get paid" by the firm.

That system "seemed to work for the firm for a long, long time," but when faced this year with the loss of a highly regarded litigator, simply because he turned 70, the firm decided to change its policy, Berry said.

Attorneys must still retire as equity partners at age 70, but if they are "still in the game, want to keep working, and the law firm wants them to keep working," they can remain on an annual contract basis, he said. They no longer share in earnings and don't vote on firm matters, but are expected to continue practicing at high levels.

"Without falling over into cliches, compared with 25 years ago, some people are active and healthy and 'in the game,' " Berry said. "That's the relevant phrase for me as chairman of the firm. If they're in the game and they're engaged and they're doing well, what are you going to do?"