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The Equal Employment Opportunity Commission, which is suing Sidley Austin Brown & Wood for age discrimination, has moved to disqualify the law firm’s defense counsel from representing a former firm administrator who described a mandatory partner retirement policy in a 1999 letter to the Social Security Administration. In the letter, then-financial director William B. White wrote on firm letterhead: “Please be advised that it is the general policy of [Sidley Austin] not to permit a partner of the firm to continue as a partner commencing the first of the year following the year age 65 is reached.” In papers filed Monday in federal court in Chicago, the EEOC, which sued the firm last year on behalf of 31 partners it claims were demoted in 2000 because of their age, said the letter by the now-retired White “flatly contradicted” Sidley Austin’s argument that it never had an age-based retirement policy applicable to partners. “[I]t is an extraordinarily probative piece of evidence and potentially fatal to certain of Sidley’s defenses in this action,” the EEOC claimed in its moving papers. “Thus, in order to exculpate itself, Sidley has an exceedingly strong interest in demonstrating that White made a false representation to the SSA.” Toward that end, the agency said, the law firm’s main defense counsel, Gary M. Elden of Grippo & Elden, had interrupted deposition questioning of Sidley Austin partner and executive committee member Virginia Aronson, to declare the letter false himself, a position then backed up by Aronson. “An attorney with any loyalty to Mr. White, much less undivided loyalty, would have no occasion to make such a pronouncement in such an extraordinary fashion,” the EEOC said in moving for Elden’s disqualification from representing the former financial director. Grippo & Elden partner Maile H. Solis-Szukala wrote the EEOC on April 26 stating that her firm would be representing White, a nonparty witness. Elden on Monday declined to comment on the EEOC’s disqualification motion. According to a partial transcript of the Feb. 23 deposition of Aronson, Elden’s interruption was in response to what he saw as repetitive questioning of Aronson about whether the firm has a policy preventing partners from continuing as partners after age 65. She denied there is such a policy. “You have done this five times without showing her the letter,” Elden berated EEOC lawyer Laurie Elkin, according to the transcript. “We understand the letter says that. The letter is wrong. You don’t have to keep beating around the bush.” Later in the deposition, Aronson stated that she only saw White’s letter for the first time a few days prior and that the firm’s management committee had not been aware of it. “I have no idea why he wrote this letter,” she testified. “It is untrue.” According to the deposition transcript, the EEOC lawyers noted White’s letter was never produced in the course of the four-year investigation that preceded the filing of the agency’s January 2005 suit, during which time Sidley Austin consistently denied it had a mandatory retirement policy. They also expressed skepticism that the letter, sent to a government agency presumably with regard to some financial issue, would have gone uncorrected for so many years if it were untrue. Aronson responded that she was confident that her firm’s general counsel’s office was addressing the issue. Policies like that described in White’s letter continue to be common at many firms. Most law firms have traditionally seen mandatory retirement as necessary to ease out partners as their productivity declines, permitting rising stars to be more amply rewarded. But most firms also have not worried about EEOC scrutiny of such policies because partners have generally been considered employers exempt from the protection of federal anti-discrimination laws. In its suit against Sidley Austin, the EEOC has taken the controversial position that the demoted partners were employees because they never voted on firm policy and all decisions, including partner compensation, were made by an unelected executive committee. The suit, which is seeking back pay for the demoted partners, could have far-reaching effect on the profession, as many large law firms have adopted similarly centralized management structures in recent years.

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