Biglaw, In-House Counsel, Old People, Partner Issues

Inside Straight: Aging Out

Here’s a sad tale that I’ve heard repeatedly recently from senior partners at major law firms.

When these partners were associates, they were superstars. They did great work, were in high demand, and sailed through the ranks.

These folks were invited into the partnership along with (or even before) their peers.

As junior partners, these folks remained superstars. Senior partners were anxious to delegate responsibility to these people, and the then-junior partners were flattered to be asked. The junior partners were doing interesting work, being paid handsomely (if not royally) for their efforts, and were contentedly busy.

But a funny thing happened on the way to retirement. My correspondents became senior partners, and this crippled them (professionally). They had aged out of utility to their firms. . . .

It’s easy for a 55-year-old partner at a big firm to delegate work to one of his 40-year-old colleagues; that’s the natural order of things. But it’s terribly difficult for a 55-year-old partner to delegate work to one of his 58-year-old colleagues; that is decidedly not how things work. So the sad sack who hits age 58 without having an independent client base finds himself — for reasons unrelated to work quality, dedication, or loyalty to the firm — sitting on his thumbs.

Why does this happen?

For most corporate transactions, clients expect the lawyer they retained to head up the deal. That lawyer is often assisted by junior partners or associates, but clients might raise an eyebrow if, for a typical deal, their hand-chosen lawyer tried to foist off the transaction on some other, more senior, lawyer. (That’s not to say this never happens. A senior specialist in tax, or antitrust, or something else, might kibitz on a major transaction. But it’s generally difficult to hand off the main role to someone older than the lawyer who has the client relationship.)

So, too, in litigation. If a client retains a 45-year-old litigator to lead the charge on a case, the client probably expects that person to handle the case. The client would be surprised — and perhaps dismayed — to find that a different senior lawyer was now taking the reins. (Again, it’s not inconceivable that litigation assignments get handed up through the ranks. If a 55-year-old partner is at the helm of a 1000-case mass tort, for example, it’s easy enough to hand off one trial to a very senior colleague. But that’s the exceptional situation at most law firms; it’s not the rule.)

Why might a lawyer reach a certain vintage without having reached the professional stature that attracts business?

Among other reasons, the lawyer may simply have loyally performed the tasks that the firm asked of him over the decades. As a young lawyer, our sad sack handled defensive discovery in major litigation matters. As a senior associate, the lawyer developed an expertise in epidemiology, and so worked with expert witnesses to develop testimony in assorted cases. Over time, the lawyer developed a knack for jury selection, and so worked with trial consultants on various cases to identify preferred juror profiles.

All of those tasks were essential to the cases, and the lawyer performed them all brilliantly. But these roles involved relatively little contact with clients, and almost no extended contact with particular clients — which is how competent lawyers often attract new business. By being loyal to the firm and doing the tasks requested, the lawyer caused himself to age out of usefulness.

That’s just one example of how a lawyer can reach a certain age without attaining a certain client base. There are many other ways this could happen, including, for example: (1) the lawyer is introverted and doesn’t naturally attract business; (2) the lawyer in fact was responsible for a large matter, but it ended after the decade of litigation had run its course, and the client had the good fortune not to confront another similar spat; or (3) the lawyer had a substantial client, which was acquired by another company that already had established relationships with other counsel.

Needless to say, under-employed senior lawyers pose problems for law firms. These folks are typically relatively highly compensated, and they’re no longer earning their keep. Moreover, firm management may misunderstand the problem. I recently met the global litigation practice leader at an Am Law 50 firm who told me, “We owe it to the firm to move under-utilized senior lawyers out of the partnership. If there’s neither internal nor external demand for their work, then they’ve probably lost a step or are resting on their laurels.”

I’d say that’s half right: There is insufficient demand for these lawyers’ work. But that’s not necessarily related to the lawyers’ performance, competence, or diligence. It may be related almost exclusively to the lawyer’s age and the firm’s inability to put certain senior lawyers to productive use.

Firms should think hard about the “aging out” problem. That poses a challenge to management, but to misdiagnose the issue is to disserve loyal, competent colleagues who obediently devoted their professional lives to the firm.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at

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