We all have them; we just don’t know them. There’s no “sell by” date stamped on our foreheads for purposes of date of death, but there may well be one for our careers. It may be written in invisible ink, but sooner or later, there’s a “sell by” or “use by” or “not good after” date,” or at least it seems that way for many working people. Our profession whoops, business, is not exempt.
Columns I’ve written about the dumping of dinosaur lawyers for various and sundry reasons have prompted responses from dinosaur readers, some plaintive, some bewildered, some angry, but unanimous in wondering what is going on in the working world today. We all know what’s going on; it’s just hard to say the words: “age discrimination,” especially for lawyers who are charged with the responsibility to uphold the law.
For example, one lawyer, who has been a civil litigator for more than forty years as a partner at several AmLaw 100 firms (and who has bumped up against the age-driven limits of partnership), now finds that opening his own practice is the only option he has. He’s not willing to hang it all up. He applied for a number of in-house jobs and, in his words, “came to delight in often receiving, among the universally negative responses, that he is not as qualified as the other candidates moving forward in the selection process….” He also received responses that he was “over-qualified” and some employers even admitted that they were seeking candidates with “less experience.” Code words for age discrimination?
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Another lawyer, a graduate of an Ivy League law school, with 38 years of experience, more than twenty of those with Biglaw, now wants to transition to an in-house position. He’s run up against the wall of utter futility. Headhunters have told him he’s too old (hopefully not in so many words; I trust those recruiters and/or staffing people in HR departments are smarter than that). He says that he also has the depth and breadth of experience the positions seem to want, but after sending out dozens of resumes/applications, he’s received only one reply. He asks “what’s going on here?”
It’s very simple as to what’s going on here, so let’s not put lipstick on the proverbial pig: it’s age discrimination, folks. We dinosaur lawyers are in good company with other professions, but just because we are, that doesn’t make it any easier.
Lawyers are governed by the ABA Model Rules of Conduct, except here in the Golden State where we haven’t adopted the Model Rules. Being California (and I can hear snorts of derision….hey, not so fast, if we did a CalExit, we’d be the world’s sixth largest economy), we have our own set of Rules of Professional Conduct and provisions in the Business and Professions Code as well.
Right now, the State Bar of California is considering revisions to our Rules of Professional Conduct.
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The proposed revisions are presently out for public comment, and while I know there will be voluminous comments to these voluminous changes, proposed changes to one rule should give pause to the “ready, fire, aim” that is often the case in employment terminations.
Currently, Rule 2-400 (B) provides that “In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person….” “Law firm” includes corporate law departments, government agencies, as well as solo practitioners. At present, there can be no disciplinary action unless and until there has been a judicial finding that unlawful discrimination occurred.
The title of proposed Rule, 8.4.1, “prohibited discrimination, harassment and retaliation” is broader than the present Rule 2-400, which is “prohibited discriminatory conduct in a law practice.” The proposed Rule, among other things, prohibits discrimination in compensation or in “terms, conditions, or privileges of employment,” language that is more wide-ranging than the present rule.
It also expands the definition of “prohibited characteristics.” The current Rule limits “prohibited characteristics” to race, national origin, sex, sexual orientation, religion, age, or disability.” The expanded definition encompasses “ race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”
The proposed Rule ditches the requirement of a judicial determination of unlawful conduct before any disciplinary process can be initiated. Uh-oh. In an acknowledgement to the “gig economy,” the proposed Rule would extend to independent contractors.
The summaries prepared by the Commission for the Revision of the Rules of Professional Conduct run 286 (not a typo) pages. There’s a long-standing joke among clients that lawyers get paid by the word. Not in this case, which has been a huge undertaking by volunteers. As we know all too well, it’s not easy to get lawyers to agree on anything, let alone a wholesale reworking of the rules that govern lawyer conduct in a state known for….shall we say politely, litigious tendencies.
The public comments on this proposed rule should be most interesting. I will report back after the September deadline for comments; the State Bar’s Board of Trustees has to approve the rules and then submit them to the California Supreme Court for final approval by March 2017. (The last time the Bar submitted rule revisions, the Court sent them back unapproved.)
Meanwhile, the results of the recent Women in Law Hackathon at Stanford show that diversity in our profession still has a long way to go.
How about a hackathon to address age discrimination?
Perhaps the prospect of discipline will spur more action, but that can only do so much, and the State Bar has its own set of problems right now.
It seems that we dinosaurs have expiration dates for our careers. For many dinosaur lawyers, we didn’t think those dates would come so quickly.
Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. 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 old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at [email protected].