The Discrimination Tolerated By Lawyers
Are you willing to stop discriminating against our colleagues on the basis of age?
One of my very favorite topics to rant about is ageism in the legal profession, and Stephen Williams’s recent post, “Keeping Your Ageism In Check,” has given me another opportunity. To paraphrase Rahm Emanuel, President Obama’s first chief of staff and now mayor of Chicago, “never waste an opportunity,” and Williams’s post has provided one.
How to keep one’s ageism in check? Don’t be ageist. It’s no different than any other form of discrimination, but it can be more subtle and is more accepted. Do you want to call it “succession planning?” Sure. Do you want to call it “technophobic?” Why not? Do you want to call it “a need for more energy?” By all means. However you dress it up, it’s still lipstick on a pig but it’s permissible in our profession. Ironic, isn’t it that lawyers freely tolerate this form of discrimination, but of course, where dollars are involved, all bets are off.
Here’s what Williams said that particularly incensed me. Speaking about a more senior in-house colleague:
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I did not care that the technology in question mattered very little in how we would ultimate navigate our response; in my eyes, he was far too old to contribute any meaningful value to the conversation, and I arbitrarily tuned him out.
Whoa, thank you for sharing. His bias wasn’t even implicit. So, why not just consign this old fart and all other dinosaur lawyers to the fossil scrap heap? Why stop there? Why not shove him under the bus in the corporate scramble to climb the in-house ladder?
Fortunately, Williams copped to the age discrimination, said that he saw the error of his ways and promised to try to be less ageist. Should we dinosaurs give thanks?
Having been in-house for many years, Williams’s complaint that there aren’t bios of the in-house legal department staff on websites is true. However, at least here in the Golden State, we can check the State Bar website for bar admission dates. That’s not always an accurate barometer (people who have to take the bar exam more than once, people coming in from out of state who either have to take the bar exam or the attorneys’ exam, people who are registered in-house counsel), but it can offer a fair approximation of age, unless people had other careers before turning to the law.
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Full disclosure: I was admitted to the California Bar in December, 1976 after passing the bar exam the first time and after working as a broadcast journalist for several years right out of college before going to law school. How old does that make me? You figure it out.
So, here’s a novel concept in these days: rather than Googling a colleague, why not get to know your colleagues on a personal level? Conversation? Really? That’s so dinosaurial.
In-house departments often hire lawyers who are subject matter experts, whatever the subject, and usually that subject matter expertise is honed over years of practice. Those lawyers are hired for what they know, not what they look like or how old they are. Even though newbies may offer “more energy,” and senior lawyers may be “technophobic,” the latter are hired because they can hit the ground running (or in Williams’s perception, hobbling on a cane or even using a walker) and give thoughtful, grounded advice from the outset.
One of the concerns that in-house departments have with hiring younger or even newbie lawyers (and we’ll assume for the sake of discussion that these are lawyers in their 20s or early to mid-30s) is whether they have the emotional intelligence and maturity needed for in-house jobs. While I think that hiring attorneys with less experience is good (mold them, teach them, and mentor them), one issue needs to be looked at carefully and critically.
Does the young attorney have the ability to push back, to tell a client that a course of conduct is misguided (then it’s a business decision), or flat-out illegal (then it’s a legal decision)? Clients, especially in a corporate environment, can be very intimidating, bullying, even, trying to push in-house counsel to agree with the course of action that the client wants to take. Then, when it blows up, internal corporate politics can and do end in-house careers.
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An in-house attorney has to be able to stand his/her ground in that situation. It’s not easy; it can be uncomfortable and downright confrontational, (thoughts of “will I lose my job?”), but it has to be done. So, do newbie or younger attorneys have the life experiences to be able to push back discreetly but firmly when the client says “Jump” and the natural tendency is to say “How high?” In-house counsel needs to have life experience to be able to respond with a different question, that is, “Why?”
My email inbox is full of comments from dinosaur lawyers who have faced and do face age discrimination every day. Younger lawyer take note, that is, if you’re lucky enough to get old, you will find yourself devalued and demoralized.
Age should not be a limiting factor in a lawyer’s ability to have a successful career and a long one, if that is a choice one makes, rather than a choice that is thrust upon them by those who don’t see the value in wisdom, maturity, and knowing when to wander among the weeds and when to summarily cut them down. Those are life lessons, ones definitely not taught in law school, especially when students have gone from college to law school with no life experiences in between.
Just like with sex discrimination, gender discrimination, race discrimination, or any other form, age discrimination is a final frontier in the push for people to be evaluated on their merits and not on any artificial distinctions, such as gray hair, lines and wrinkles, and remembering where they were during Watergate. (I’d substitute President Kennedy’s assassination, but that is truly ancient history.)
Are you willing to stop discriminating against our colleagues on the basis of age? I see very few hands raised. Why am I not surprised?
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
