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The U.S. Equal Employment Opportunity Commission has moved to compel testimony about recent conversations between Sidley Austin partners and a former financial director who signed a 1999 letter stating that the firm had a mandatory retirement policy. Sidley has denied having such a policy in the face of an EEOC suit claiming the Chicago-based law firm discriminated against 31 partners on the basis of age when it demoted them to counsel in 1999. The EEOC has claimed the financial director’s letter “flatly contradicts” the firm’s position. The letter, dated Oct. 21, 1999, and addressed to the Social Security Administration in Chicago, states 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.” The letter is signed by William B. White, financial director. According to the EEOC motion filed last Tuesday in Chicago federal court, Mr. White testified at a July 26 deposition that he believed the letter to be an accurate statement of the firm’s retirement policy at the time he signed it. But he also testified that, after conversations earlier this year with Sidley partners William F. Conlon and Theodore N. Miller, he realized the letter did not accurately state firm policy. The lawyer representing Sidley at the deposition, Michael Conway of Chicago’s Grippo & Elden, objected to questions about these conversations on the grounds that they were privileged. The EEOC is seeking to compel Mr. White’s testimony about them. “This motion presents the classic example of a Defendant seeking to use the attorney-client and work-product privileges to improperly thwart the Plaintiff’s discovery into areas that are potentially damaging for the Defendant,” the EEOC claims. The agency argues the conversations are not privileged because Mr. White, who is retired but still works at Sidley on a contract basis, was not seeking legal advice from either Mr. Miller, who is vice chairman of the firm’s management committee and a member of its executive committee, or Mr. Conlon, an executive committee member who acts as the firm’s general counsel. “The fact that Conlon and Miller are lawyers does not render every conversation that they have about this case privileged,” the EEOC says in its motion. Mr. Conway did not return a call seeking comment but, according to a partial transcript of the July 26 deposition, he justified his objection on the grounds that the partners “were offering legal advice.” “Mr. Miller was acting as counsel to the firm in connection with this matter,” said Mr. Conway. “Having a conversation with Mr. White about activities during the scope of his employment I think is privileged.” The EEOC had moved in June to have counsel separate from the firm appointed for Mr. White. The firm quickly agreed to the appointment, but the letter received some media attention at that time, including articles in the Law Journal and the Chicago Tribune. Represented at his deposition by his new counsel, Michael Hannafan of Chicago’s Hannafan & Hannafan, Mr. White testified that he first became aware the retirement policy stated in the letter was not correct after he read the June 6 article in the Tribune. That morning, he said, firm executive director Timothy Bergen showed him the newspaper and told him he was a “celebrity.” Mr. Bergen then told him to call Mr. Miller. Mr. White later testified that Mr. Conlon also had called him about the letter and its possible inaccuracy in February 2006. In his deposition, Mr. White also said he did not actually write the 1999 letter, only signed it. He said the letter was drafted by now-retired partner Wilbur C. Delp, who asked the financial director to sign the letter “so he could put it in his file in case there was a problem with his self-employment tax on his retirement payments.” In the past, law firms have not worried about EEOC scrutiny of their partner retirement policies because partners have traditionally been considered employers exempt from the protection of federal anti-discrimination laws. In its suit against Sidley Austin, the EEOC has taken the novel position that the demoted partners were employees because they never voted on firm policy and all decisions, including partner compensation, were made by the firm’s self-selecting 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. Anthony Lin can be reached at [email protected]

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