Wednesday, December 13, 2006

from legal watch blog

Legal Blog Watch

Mandatory Retirement at Law Firms

By his own admission, Bruce MacEwen of Adam Smith avoids staking out positions, preferring instead to focus on the in depth and astute quantitative analyses that have addicted his wide audience, myself included.  But in response to this New York Times story on law firms' mandatory retirement programs (12/08/06), MacEwen comes out swinging, decrying these programs as idiocy or atrocity and an inherently inhumane practice. And as I'll discuss in this post, many others in the blogosphere side with MacEwen, though as I'll conclude, I hold an opposing and apparently, minority view.

Before getting to his critique of mandatory retirement, MacEwen begins with the predictable justifications: younger partners need to take over client relationships, senior partners' draws mean less money for younger partners and senior partners are less productive. MacEwen dispenses with these arguments in short order. As to younger lawyers wanting a bigger piece of the pie, McEwen argues that today's firms are far better off than those of decades ago, which kept older lawyers on without any detriment to younger partners' earnings. As to the problem of underperformance, MacEwen correctly diagnoses it as an issue that afflicts some lawyers irrespective of age -- and should be treated on a case by case basis, rather than with a broad mandatory retirement policy. Finally, as to the rationale of "passing clients on to younger partners," MacEwen points out that clients may want to keep older lawyers with whom they've developed a relationship -- and they ought to have a say in the matter. 

For MacEwen, older lawyers have a valuable role to play in the firm. They can:

mentor, train, help transition client relationships to younger people, operate as ambassadors for the firm to important constituencies (lateral recruits, potential merger partners, law schools, even governmental and regulatory agencies).   They can, in other words, "dial back" while still providing valuable service to the firm -- service you might not want to sacrifice the high-priced billable hours of others to perform.

For a complete backstory on some of these issues, Jen Burke at Transcending Gender has an exhaustive overview of ageism at law firms, including the New York State Bar Association's recent statement that mandatory retirement is discriminatory and inhumane.  The Legal Profession Blog mentions the Times story here, as does WSJ Law Blog here, though the story only generated minimal comments from readers, which I'd attribute to what I'm guessing is WSJ Law Blog's  youth-oriented demographic. Finally, at Prawfs Blawg, Scott Moss analyzes the   legality of mandatory retirement programs.

As for me, I definitely hold a minority view on all of this.  First, if these older lawyers had the kinds of relationship with clients that is claimed, why don't more of them take their portfolios and walk, like the attorney Victor Morris described in the Times story. What I suspect is what I've written before: that many of the lawyers being sent out didn't have a stake in the firm or the clients, but were nothing more than highly paid employees. 

Second, I have to admit that it's difficult for me to feel sorry when these older lawyers, who've spent their careers earning millions at large firms, are told to leave. If there's ever a group of people who had options, it's this segment of the population. Many retiring biglaw attorneys have earned enough during their career so that they're not tied to a steady paycheck. They can teach, embark on other careers, start a legal clinic or consult with emerging companies. They can, if they have the portfolio, pack up their clients and start a new firm. They can run for political office or use their contacts to apply for judgeships. Why stay put for comfort when you have a whole new opportunity to leave your mark on the law? 

Posted by Carolyn Elefant on December 11, 2006 at 03:47 PM | Permalink | Comments (0)

Tolerating Different Viewpoints Is a Good Thing

In this post,  Rees Morrison reminds company general counsel that their viewpoint and demeanor has a trickle-down effect on others' willingness to express their views.  Morrison writes:

Once the top lawyer takes a position, everyone else typically scrambles to support it or freezes into silence (See my post of Jan. 17, 2006 on passive-aggressive behavior.). Although some techniques help thaw the chill (See my post of Feb.1, 2006 with two.), the sina qua non is sensitivity by the general counsel to the conversation-stopping risk.

Morrison writes that any issue of importance will invariably have two sides.  Thus, it's necessary to encourage an atmosphere where all views are vetted and worked through.  So top lawyers may want to wait to express their position until they have a chance to hear from everyone else.

Posted by Carolyn Elefant on December 11, 2006 at 03:29 PM | Permalink | Comments (0)

Blawg Review #87

Hannah Hawsl-Kelcher of the Legal Literacy Blog hosts this week's holiday-themed installment of Blawg Review #87, which features both the naughty (like Leon Gettler's discussion of prosecutors behaving badly or use of PowerPoint to improve congressional debate as described at Freedom to Differ) and the nice (such as Bruce McEwan's discussion of ways to use technology to effect an exchange of ideas).  Next week, watch for Blawg Review #87 at Health Care Law Blawg.

Posted by Carolyn Elefant on December 11, 2006 at 03:26 PM | Permalink | Comments (0)

Hey 7th Circuit -- Why Not Cut Lawyers Some Slack?

Howard Bashman, author of How Appealing, warns in an article ("Commentary: Have 7th Circuit Judges Gone Off the Deep End?") that the 7th Circuit judges Posner and Easterbrook risk becoming "fusspots and nitpickers" when they berate or sanction attorneys for minor and inconsequential mistakes.   If you think that Bashman's use of  words like "fusspots and nitpickers" is a bit harsh, bear in mind that he's merely quoting  the honorable Judge Posner.

Bashman's column discusses a recent 7th Circuit decision, Smoot v. Mazda Motors, that Bashman first wrote about in depth here at his blog.  In accordance with the federal rules of appellate procedure and the Seventh Circuit's local rules, the parties were required to set out a statement of jurisdiction and specify the basis for diversity jurisdiction and the amount in controversy.  In Smoot, neither the plaintiffs nor the defendants provided an accurate statement of jurisdiction, so the court ordered the parties to provide supplemental statements describing jurisdiction. Again, as Bashman describes, the parties erred:

One of the statements said that the amount in controversy was $75,000, even though the applicable statute requires that the amount in controversy exceed $75,000 in order for diversity of citizenship jurisdiction to be proper. And because the insurance company defendant had its headquarters outside of the United States, and was created under the laws of another country, the basis for establishing diversity of citizenship was a bit more complex than in the average case.

The errors, albeit minor to many, caused Judge Posner, joined by Chief Judge Easterbrook to lash out at counsel: 

We have been plagued by the carelessness of a number of the lawyers practicing before the courts of this circuit with regard to the required contents of jurisdictional statements in diversity cases. It is time ... that this malpractice stopped. We direct the parties to show cause within 10 days why counsel should not be sanctioned for violating Rule 28(a)(1) and mistaking the requirements of diversity jurisdiction. We ask them to consider specifically the appropriateness, as a sanction, of their being compelled to attend a continuing legal education class in federal jurisdiction.

Judge Evans dissented, disagreeing with his colleagues' characterization of the lawyers' errors.  Evans wrote: 

Sure, the plaintiffs should have said the amount in controversy exceeds $75,000, not that it is $75,000. And sure, both sides stumbled on their declarations regarding the dual citizenship of the corporate defendants. But, at best, these are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as 'blunders,' nor would I come close to saying this is 'malpractice' which must be stopped."

Bashman recognizes the importance of enforcing jurisdictional limits, but ultimately, he supports Evans' approach. Bashman writes that there's no reason to berate attorneys or elevate minor mistatements to the level of malpractice. Bashman also suggests that responsibility for ensuring jurisdiction lies with the federal district court and that judges should review the district court's opinions to determine whether jurisdiction has been properly established.    

Posted by Carolyn Elefant on December 11, 2006 at 03:19 PM | Permalink | Comments (0)

What Hope Do We Have for Security When Unlicensed Lawyers Elude the Military?

As our government works towards improving homeland security, perhaps the first place to look for breaches is in our own backyard. As The Washington Post reports here (12/10/06), the Air Force just discovered that one of its top lawyers, Colonel Michael Murphy, who served both in the White House and in a senior position in Iraq, had been practicing law without a license since he was disbarred for professional misconduct by the Texas Bar in 1984.  The investigation is ongoing.

Though there's no excuse for the Air Force's oversight, I predict that we'll see less of it in the future. Many bar associations maintain online data bases that enable other lawyers, employers and the  public to quickly and accurately check an attorney's standing with the bar. And the ready availability of this information ought to deter lawyers from lying or failing to reveal disbarment or lack of good standing to an employer.

Posted by Carolyn Elefant on December 11, 2006 at 03:05 PM | Permalink | Comments (0)

Rodrigo R. González Fernández
Renato Sánchez 3586, Dpto. 10
Las Condes * Santiago * Chile
T: (56-2) 245 1168