NEW YORK, May 4 (Reuters) - A 67-year-old attorney has sued
his former firm, Frenkel, Lambert, Weiss, Weisman & Gordon for
age discrimination, underscoring a persistent problem for law
firms as they confront a graying corps of baby boomers.
Former associate Stephen Marcus's complaint in Manhattan
federal court alleges partners pressured him to accept a 50
percent pay cut in August 2009 before terminating his
employment three months later after two decades at the firm.
"It's a problem for the profession," said Mark Alcott, a
former New York State Bar president who created a committee to
study the issue of age discrimination during his tenure.
Although not an issue in Marcus's case, some firms have
mandatory retirement policies.
"We have large numbers of lawyers who are entering their
60s, progressing through their 60s, and they're retiring --
many by choice, some because they run afoul of these policies,
and it's leaving a void," Alcott said.
Calls to Frenkel, Lambert seeking comment were not
returned. The lawyer representing the firm, John Porta of
Jackson Lewis, was unavailable for comment.
In 2007, Alcott's committee issued recommendations, later
adopted by the state bar association, that law firms end
mandatory retirement policies for partners. The American Bar
Association followed suit the same year.
While some firms elected to do just that, a number have
continued to enforce retirement ages, even as a sizable cohort
of lawyers reaches senior citizen status. Alcott said such
rules are rarely enforced in other industries.
The policies are limited to partners, not associates, and
rely on the argument that partners are employers rather than
employees and thus are not entitled to the same level of
protection under anti-age discrimination laws.
PRACTICING LAWYERS OLDER
Nevertheless, the Equal Employment Opportunity Commission
filed suit against Kelley, Drye & Warren last year on behalf of
Eugene D'Ablemont, a partner forced to give up his equity when
he hit age 70. The case remains unresolved.
In 2007, Chicago-based firm Sidley Austin settled a similar
lawsuit from the EEOC for $27.5 million, a case that signaled
to other firms with retirement policies that they could be
vulnerable, Alcott said.
Jeffrey Burstein, the EEOC lawyer handling the Kelley Drye
case, said the commission chooses its cases carefully.
"Certainly the number of lawyers who currently are
practicing or want to practice past ages that previously had
been considered retirement ages has been growing," he said. "I
think that's pretty clear."
Only a tiny fraction of age discrimination complaints filed
with the EEOC in 2010 were aimed at law firms, according to the
agency's statistics. Of 878 complaints filed in New York State,
just three named law firms; nationally, 39 of 23,264 complaints
were filed against law firms.
Unlike the plaintiffs in the EEOC lawsuits, Marcus was not
In addition to age discrimination, the filing alleges that
the firm committed fraud by telling Marcus that there weren't
enough profitable cases available in his area of expertise.
"Frenkel, Lambert's decision forcing Marcus to take a
reduction in pay -- all the while saying that higher paying
work was not available -- was simply a pretext for age
discrimination," the suit states.
Marcus's lawyer, Neal Brickman, said Tuesday that the firm
had targeted Marcus because of his age and his paycheck.
The case is Stephen H. Marcus v. Frenkel, Lambert, Weiss,
Weisman & Gordon, LLP, et al, United States District Court,
Southern District of New York, No. 1:11-cv-02905.
For Stephen Marcus: Richard Jefferson and Neal Brickman.
For Frenkel, Lambert: John Porta of Jackson Lewis.
(Reporting by Joseph Ax; Editing by Howard Goller)