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With hordes of attorneys poised to assume senior status, achieving a consensus among partners to ditch mandatory retirement policies is just the first step � and perhaps the easiest � in switching to what many say is a fairer system. Kirkpatrick & Lockhart Preston Gates Ellis recently did it, Pillsbury Winthrop Shaw Pittman made the change, and others are expected to follow. And while these firms report that reaching the decision to abandon age-based retirement was relatively painless, implementing a merit-based system for evaluating older attorneys will not be a simple feat for most. “It takes time for people to internalize what this means,” said Deborah Johnson, a member of Pillsbury Winthrop Shaw Pittman’s executive committee and the firm’s chief human resources officer. Pillsbury Winthrop in April decided to get rid of the provision in its partnership agreement that, in general, created a rebuttable presumption that when lawyers turned 65 it was time for them to give up full equity status. In light of the firm’s decision, Johnson has worked with other firm leaders to devise a system that provides flexibility but holds attorneys accountable for their contributions. She estimates that the change affects about 10% of the firm’s partners. The full results of the decision at the 755-attorney firm will take at least a year to realize, Johnson said. In the meantime, the firm is operating under its newly implemented program that includes refined partner evaluations, stated goals from senior partners, revised financial planning services and an increased role for career consultants in working with “seniors.” The firm defines seniors not by their age but by year of service. It considers as seniors those who have practiced for 25 years or more. More expected More firms are expected to follow the lead of Pillsbury Winthrop and K&L Gates, said Ward Bower, a consultant with Altman Weil. According to a recent survey by the consultancy, 50% of law firms have such policies, although less than 40% of lawyers are in favor of them. Several factors are driving firms to rethink their policies, Bower said. First is the increasing percentage of baby boomer partners who will enter retirement age. According to the Bureau of Labor Statistics, between 2002 and 2012, the number of people in the labor force who are 55 and older will increase by 51%, and those 65 and older will increase by 43%. Second is the American Bar Association’s resolution calling for law firms to end mandatory retirement. In August, the 413,000-member organization took the official position of urging law firms that require their attorneys to retire at a certain age to throw out those policies. The ABA resolution followed a report issued in March by the New York State Bar Association, which concluded that mandatory retirement was outdated and contrary to public policy. Third is the recent settlement between the U.S. Equal Employment Opportunity Commission (EEOC) and Sidley Austin. In October, the 1,859-attorney law firm agreed to pay a $27.5 million settlement to end a closely watched age discrimination suit brought by the EEOC on behalf of 32 former partners. Although the conclusion of the case did not include a decision on its merits, the specter of a multimillion-dollar hit has created some anxiety among law firms with age-based retirement. To varying degrees, the vast majority of firms already have evaluation instruments in place to measure the performance of associates and partners. But dealing with older partners, many of whom at one time were top performers but whose capacities may become diminished, is “trickier,” Bower said. On one hand, law firms want to make certain they do not run afoul of age discrimination laws. On the other hand, they want to avoid potential liability for malpractice if older partners lose their edge, or worse. “It requires a lot more scrutiny,” he said. “You have to have a way to get senile people out of there.” In large firms, providing more scrutiny likely will become the responsibility of practice leaders, which could eat up time they otherwise could be billing, he said. Although abolishing mandatory retirement can lead to uncomfortable conversations with less productive partners who continue to hang on longer than the firm would like, the vast majority of situations work themselves out, said Gregory Markel, chairman of the litigation department at Cadwalader, Wickersham & Taft and a member of the firm’s management committee. “We find that people’s own choices take care of these issues,” Markel said. Cadwalader was one of several New York firms that signed a letter last summer from the New York State Bar Association calling for an end to mandatory retirement. The 721-attorney law firm has operated without age-based retirement since 1991, with much involvement from practice leaders, Markel said. In some cases, the firm has reassigned older partners to tasks that are “more appropriate for a lesser hour load,” he said. But he added it is “surprisingly rare” to have a situation in which firms want someone to leave who is unwilling to do so. “We try to accommodate.” One of the greatest fears law firms have about getting rid of mandatory retirement is the effect it may have on younger attorneys, said Jon Lindsey, managing partner of the New York office of Major, Lindsey & Africa, a legal search firm. “They worry that the people who should leave will never leave and younger partners won’t come into their full glory,” Lindsey said. Requiring attorneys to change their equity status at a specific age provides an automatic way for clients to transition from an older partner to a younger one. Such a move can be more difficult when an older attorney is still in the picture. But there is a way to make it happen: money. “We’re incentivizing people,” said Johnson at Pillsbury Winthrop. “We adjust the reward to get the kind of behavior we want.” But again, such systems require oversight and manpower, Bower said, from supervising attorneys who must set up the incentives and ensure that they are working correctly. “There’s an economic opportunity cost to this kind of management,” he said. “It’s like the top salesman who becomes the sales manager.” But Peter Kalis, chairman of 1,381-attorney Kirkpatrick & Lockhart Preston Gates & Ellis, described the worries that some firm leaders have about eliminating age-based retirement as “bogus.” “It’s a cop-out by law firm management not to engage in a proper evaluations and reward system for lawyers of any age,” Kalis said.

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