Despite law firms coming under increasing pressure in recent years to retain senior talent, older faces are still a rare sight within partnerships. But is this approach depriving firms of valuable skills? Veteran lawyers who qualified in the 1970s and show no sign of slowing down speak out.

Only a handful of corporate lawyers continue rainmaking well into their sixties and beyond. The exceptions can be personified by country. In the UK there is Nigel Boardman, in the US there is Martin Lipton and in South Africa Michael Katz. But an increased working life and a rapidly rising population mean UK law firms are under pressure to accommodate more senior talent alongside stars like Boardman. Some are taking tentative steps towards this goal, but many agree that firms are simply wasting talent.

Since the UK’s default retirement age of 65 was abolished in 2011 many firms have opted to scrap fixed retirement ages or at least bump up the age limit.

Though law firm partnerships – unlike corporates – are not required to scrap default retirement ages for partners as long as they can justify them, many have chosen to do so.

Firms such as Linklaters, Ashurst and Hogan Lovells had already moved away from fixed ages in anticipation of rule changes.

“To justify a retirement age, a firm has to demonstrate a ‘proportionate means of achieving a legitimate aim’. That means the firm must have a good business reason for maintaining the retirement age and there can’t be a better, less discriminatory way of achieving that objective,” explains James Davies, partner and joint head of employment and incentives at Lewis Silkin.

In the most recent high-profile age discrimination case, the law firm involved was victorious but it still sent shockwaves through the profession. Leslie Seldon, a solicitor at Kent-based firm Clarkson Wright & Jakes, fought a litigation claim for almost eight years, raising a claim of age discrimination because he was asked to retire at 65. However, it was not upheld. In a final blow in May 2014, the case was appealed to the Employment Appeal Tribunal, which rejected it and concluded that the age of 65 was proportionate.

“As a result of the Seldon case, there are now far fewer instances of a fixed retirement age in partnership agreements,” says Ronnie Fox of partnership specialists Fox Lawyers. “The dice are loaded against the firm if there is a fixed retirement age because there’s now no default retirement age for employees.”

While not all firms are steering clear of fixed retirement ages, they are at least putting other policies in place. “It would be very difficult to justify a decision to retire someone at a given age if there was no pre-existing policy,” comments Davies.

Nabarro increased its fixed retirement age from 60 to 62 in 2013 but it brought in a provision allowing partners to continue working beyond this limit if they desire. These policies are still in place.

Instead of age, Linklaters considers years of service as a determining factor. However, the ages of the most recent 10 partners who retired from the firm in the UK were still below 60 – in the range of 40-57.

Meanwhile, Travers Smith has a “presumed” retirement age, explains senior partner Chris Hale (pictured, bottom), adding that a partner can only continue if they get the backing of the other partners.

At Slaughter and May, a press spokesperson says the firm does not have a “specific retirement policy”.

Lockstep pressure

Behind the scenes, older partners in the UK are still coming under pressure to retire. Part of the issue is the lockstep system. “I think lockstep makes a difference because you care if people are making a contribution,” says Slaughters corporate partner Nigel Boardman (pictured, right). “If you have an ‘eat what you kill’ policy, provided [partners] cover their rent costs then they don’t mind.”

Still deal-making in his mid-sixties, he remains one of London’s best-known M&A lawyers. Boardman, who qualified in 1975, personally advises several FTSE 100 companies. He joined Slaughters in 1973 and was made partner in 1982. Other than a brief spell at merchant bank Kleinwort Benson, he has been at the magic circle firm ever since.

Boardman is not alone among his Slaughters’ cohort: fellow partner Steve Edge, who also joined in 1973 and qualified in 1975, remains one of the highest-rated tax lawyers in the City.

At the commercial Bar, the experience that comes with age is widely revered. Many leading silks work through their sixties. At 70, Lord Grabiner QC remains the highest paid of their number – such is the universal demand for his services from City firms.
Meanwhile, the 12 justices of the UK Supreme Court – who have an average age of 67, while four are in their seventies – are used to working 12-hour days. Mandatory retirement only comes at 75.

But not all partners in commercial law firms want to continue working at the same pace until the early hours. “Some extremely talented people just decide that they have had enough and stop,” says Boardman. “That’s not how I feel but some of my colleagues and former competitors seem very happy retired.”

However, part of the problem is that there are not enough more flexible options available. Boardman continues: “Many people would like to have found some sort of glide path where they could slow down over time but I don’t think that works very well. You’re either fully committed or you’re not. I will carry on until I don’t get pleasure out of it anymore and I don’t know when that will be.”

Others say UK firms could offer more options to older partners who would like to continue working on a more flexible basis. “If those partners are doing a rather different job from the one they were doing when they were younger, they might not necessarily expect the same level of remuneration as they received when they were doing all-nighters and constantly travelling for clients,” Fox suggests.

But Hale says UK firms are also eager to clear the way for younger talent to rise up the lockstep. “I think experienced talent does get wasted,” he argues. “It’s not so true at US firms, but English firms have been encouraging partners at what seems a relatively young age to retire in part to make way for younger associates to come through to partnership.”

Berwin Leighton Paisner (BLP) senior consultant Alan Paul agrees: “Inevitably there are conversations that go on with people long before they’re 60.”

Global veterans

In the US older partners stay on longer than in the UK, says Peter King, corporate partner at Weil Gotshal & Manges in London. King joined Linklaters in 1981, qualified two years later and became a partner in 1990. He left for Shearman & Sterling in 2003 and joined Weil in 2008.

“It’s always good to have options to carry on as long as you want and clearly the US model does provide those sorts of options,” King comments. “It’s fair to say that people are staying longer at UK firms but generally speaking they stay [even] longer at US firms.”

He adds that partners of all levels remain heavily involved in deal-making: “At US firms, we tend to have a very ‘hands on’ approach to our work. Partners of all levels of seniority are personally involved with clients and their deals, and spend less time on management tasks.”

Moreover, US outfits could credit part of their success establishing themselves in London to their senior workforce, says Fox. “I believe that one of the reasons US firms have been so successful in establishing themselves in London is because they are simply better at utilising the talents of older partners.”

At elite New York firm Wachtell Lipton Rosen & Katz, partners are not required to retire at a specific age, explains founding partner Martin Lipton. “There are partners in this firm who have retired at 60 or 65 but they are not required to, and there are partners in the firm who have continued like I have into their 80s, and we are quite productive.”

Lipton pioneered the ‘poison pill’ in 1982, a strategy that is used by corporations to discourage hostile takeovers. He qualified in 1955.

In South Africa Michael Katz, director of ENSafrica in Johannesburg, who qualified in 1968, says he is not feeling any pressure from colleagues to stand down. “I cannot think of any other South African rainmakers at this age. But if you add value and your firm sees you add value then there is no good reason to leave simply because you’ve reached a senior age. It could deprive the firm of talent.”

Battle scars

Seasoned veterans today have fought through economic crises and worked on cases dating back to Britain’s days of empire. “Both the recognition of later retirement patterns as people live longer, and the placing of greater emphasis on the value of experience since the financial crisis, seem to be slowing the earlier retirement trend in the UK and offering broader opportunities,” says BLP corporate partner David Barnes, who joined the firm in 2012 shortly after retiring from Linklaters, where he was global corporate head.

These partners can offer a wealth of varied experience beyond pure M&A. Boardman worked on the recapitalisation of the British banks during the financial crisis. “It was tense and you knew what you were doing would be subject to enormous scrutiny,” he recalls. “I experienced a similar sort of stress during some of the privatisations but not as great; that was the greatest. We were just running out of time to have a solution.”

Though better known for his private equity work, Hale once acted for two Canadian provinces in relation to the patriation of the Canadian constitution that led to its sovereignty in 1982. “At the time changes to it required the approval of British parliament,” he explains. “The Canadians decided that it was a colonial vestige that should be ended. There was a row between the federal government and the provinces as to how this was to happen.”

In addition, veterans can lend gravitas to resolve conflict, suggests Boardman. “Experience is good but also you have more gravitas so people are more likely to listen to you and take you seriously, and that goes for regulators as well as clients and people on the other side of the table.”

For example, Boardman has contributed to resolving conflicts at management level. “Those challenges are often things that never make the newspapers, such as a split between the finance director and the chief executive and how you can get them to work together. I suppose as I’ve got older it’s been easier for me to help on those kinds of issues.”

On the other hand, experience is not necessarily the most vital factor for UK firms to consider, says Boardman. “Experience is not the criterion I would use for whether you should retain people. The question is whether they make a contribution in a full sense, not just financially. Are they good partners? Do they help bring on younger people? Are they still developing a practice, do they still have enthusiasm for it? Are they still a good role model?”

New trends

However, UK firms are becoming increasingly aware of the need to retain senior talent. “I think there is some talent that is lost and wasted,” comments Hale. “In doing so, value, experience and contacts can be lost. My sense is that UK firms are beginning to rethink this approach.”

In the past few years, BLP has been cherry-picking retired veterans from magic circle firms. Ex-Linklaters partner Barnes started working for the firm on a four-day per week basis. Since the start of the year, he has reduced this to two days per week after he was appointed as director of client law firms for the University of Law. “I think BLP does have flexibility,” Barnes says. “We have a number of senior partners. We’re not exactly part time but we’re on a flexible compensation system and we are less full time than we previously were. BLP has probably done it more than others.”

In 2012 BLP also hired one of Allen & Overy’s most senior corporate partners, Alan Paul, as a senior consultant in its corporate practice. He made partner at the magic circle firm in 1985.

Paul added another string to his bow in 2014 when he founded consultancy and business coaching company APC&C, targeting mainly law firms in the UK and lawyers individually. BLP continues to use his services as a business consultant through APC&C.

“I think flexible working will increase,” says Davies. “Firms are seeing how it can work effectively for working parents and are confident that the numbers will rise at all ages. Partners coming up to traditional retirement ages can often afford to work reduced hours.”

In addition, UK firms are recognising that older partners are well-suited to particular roles. “I’ve heard of some older partners who do not take on client work but deal with professional indemnity issues and regulatory matters, as well as making recommendations for resolving complaints,” Fox points out.

Paul believes that UK firms should be more flexible about allowing their older partners to work as consultants across several firms. “There ought to be a major market for good older partners to become consultants and lend their services to more than one firm,” he says. “A few firms might not like it but as long as there are no conflicts I don’t see why they shouldn’t be able to work for multiple firms.”

In future, Boardman’s eternal career may not seem so exceptional. He concludes: “If children are going to live to be 100 and want to keep the same lifestyle in retirement, more or less, they’re going to have to work until they are 85, so rather than being the exception I think I might be the early example of the new rule – the changing rule.”

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