Herb Rubin is a 100-year-old attorney who still practices in New York. (Photo: David Handschuh/ALM)

When Herb Rubin’s partner died, he was recruited by a big law firm with a mandatory retirement age. Rubin, 100, the name partner at Herzfeld & Rubin in New York, is glad that he turned that offer down. Otherwise, he would have been forced to retire 35 years ago.

Paul Weiss partner Mordie Rochlin, 106, did retire 35 years ago when he reached the firm’s mandatory retirement age of 70. But Rochlin couldn’t imagine life without the firm, so he never actually left.

Mordie Rochlin, who is 106, still has an office and an assistant at Paul Weiss 35 years after his retirement. (Photo: David Handschuh/ALM)

“As you might imagine, some of my partners welcome retirement and may even choose to retire before their mandatory retirement age is hit,” said Paul Weiss chairman Brad Karp. “Others strongly resist retirement and would prefer to work well beyond their designated retirement age. They’ll point to my partner Mordie Rochlin, who still comes to the office at age 106.”

Nearly 40 percent of law firms had mandatory retirement ages 15 years ago, according to a study conducted by Altman Weil for the American Bar Foundation. But, when The American Lawyer surveyed 68 firms in 2016, only 16 mostly elite firms still had an age cutoff. In the past couple of years, law firm leaders have acknowledged making exceptions for lawyers who bring in the most business.

While policies differ, one thing is consistent across the industry: Older lawyers who want to stay resent being pushed out, but younger lawyers don’t think their elders are turning over the business soon enough. Terrence Tarver, 39, a personal injury lawyer who chairs the young lawyers section at the New York State Bar Association, objects to mandatory retirement policies but understands why they’re popular among his peers.

“It’s like going to high school when the seniors never graduate and the seniors are the partners,” said Tarver who stressed he wasn’t speaking for the state bar.

A third of respondents to ALM Intelligence’s 2016 law firm leaders survey said that senior partners are keeping work that they should have passed on to the next generation, and more than 60 percent said some partners are staying on too long.

Eric Seeger, a principal at Altman Weil who specializes in succession planning, agrees that there is a generational divide.

“Anecdotally, it’s consistent with my experience that younger lawyers tend to want the senior lawyers to move on, and the senior lawyers resent being asked to leave,” Seeger said.

Former Chief Judge Jonathan Lippman, who reluctantly left the Court of Appeals when he hit the mandatory retirement age of 70 in 2015, was at the annual meeting of the state bar in January to hand out pro bono awards named in his honor. The awards were given by the senior lawyers section, which had gathered to discuss how senior lawyers can lead productive professional lives well into old age.

“I think the answer is we have to as a profession place more of a value on lawyers’ expertise,” said Lippman, who was a proponent of a failed 2013 ballot proposition to raise the age limit for judges. “There is a tendency in our society to downplay wisdom and experience.”

Henry “Hank” Greenberg, a shareholder at Greenberg & Traurig and president-elect of the state bar, said law firm mandatory retirement policies should be eliminated and the retirement age for judges raised.

Henry Greenberg, president-elect of the NYSBA

“In this room, the talent would take us to Mars and back,” he told the senior lawyers section.

Often, firms without retirement policies benefit from that talent.

Prominent bankruptcy attorney Richard Levin, a primary author of the 1978 U.S. Bankruptcy Code, made no secret of the fact that he left Cravath, Swaine & Moore for Jenner & Block in 2015 because he would have had to retire the following year at the age of 65.

“You lose a lot of talent with mandatory retirement,” he said in an interview Monday. “The real value is in the years of experience, and you can’t bill for that by the tenths of an hour.”

Luise Barrack, managing member of Rosenberg & Estis, said her firm was happy to have Neil Underberg, a prominent commercial real estate attorney who was forced into mandatory retirement, work at the firm until shortly before his death at 88. “We did not terminate him at 88; he terminated us,” she said.

The debate over mandatory retirement has been waged for quite some time, and, with people living longer, healthier lives, it shows no sign of abating.

Mark Zauderer, name partner in Ganfer, Shore, Leeds & Zauderer, chaired the special committee on age discrimination in the profession for the state bar way back in 2007. In a strongly-worded report, the committee recommended that mandatory retirement policies be scrapped.

“Our argument was much of the objection to doing away with mandatory retirement was based on a false premise that there was a finite pie,” he said. “Keeping on people who wanted to work expanded the pie and created value to the firm.”