Confessions of a baby boomer
As I pen this article, it seems as though I’m writing about someone else—the older worker. Age and aging, it seems, are in the eye of the one looking back at you in the mirror. I have this theory, especially as it pertains to men, that when we look in the mirror, we still see that 20 year-old stud who can leap tall buildings. But I know that my vertical leap is not what it used to be. The reality of aging in the legal profession is upon me and those of our generation.

In many respects, I am the poster child for the baby boomers. I was born in 1947. I went to college and was drafted into the army during the Vietnam war. After my time in the service, I returned to the United States and graduated from Drake University Law School in 1975. I have practiced in the field of labor and employment law for over 30 years. I’ve been with the same midsize law firm (75 lawyers) in Denver, Colorado, for almost that entire time. I’ve been privileged to practice with a group of diverse men and women who make our firm a special place to carry on our learned profession.

I turned 60 this year. I’m in relatively good health. I hike, fish, hunt, ski, work out, and generally don’t feel old. But I now have grandchildren and some of my friends and high school classmates are retired or dead.

The conversations I now have with my wife and contemporaries often involve questions relating to retirement. How long are you going to practice? When do you plan to retire? Do we have enough money saved? What about health care costs? What will I do when I retire? Yikes!

Many of us in the boomer generation are struggling with these same issues. This article will explore the demographic issues relating to the baby-boomer retirement phenomenon and how it may affect the legal professional in the decades to come.

How old is old?
Perhaps as a starting point we might look to what Congress thought about this question. In 1967, Congress passed the Age Discrimination in Employment Act (ADEA), which defines anyone over 40 as in the protected class. But is 40 really old? I once defended an age discrimination case before our senior U.S. District Court Judge, the Hon. Alfred Arraj, now deceased. At the time he heard the case, he was probably in his late 70s. The plaintiff was a man in his 40s. I’ll never forget the editorial comment the judge made when he began to read the introductory jury instruction describing the case.

When he reached the point in the narrative that said, "Plaintiff claims he was discriminated against because of his age, 40," the judge paused, looked up from the bench, and said, "That’s old?" I was happy to be sitting on the defense side of the table for that one.

But Judge Arraj’s comment illustrates an important point. "Old" is a relative term. Today, the boomers are generally healthier and more active than their parents were at the same age. This increased vitality has altered the ambitions and lifestyles of the boomer generation.[1]

We’ve all heard the sayings "you're only as old as you feel," or "Fifty is the new 40." These statements appear to have some basis in fact. Public perceptions of how old is old, have changed. In a recent survey, men were considered old at 70 and women at 75.[2]

Also, the perception of how old is old varies depending on the job or profession. For example, according to one commentator, IT workers are considered old if they have children. Ballet dancers and professional athletes may be considered old in their 20s or 30s; airline pilots in their 50s, and Supreme Court justices in their 80s.[3]

So what does this mean for the legal profession? Are we going to see lawyers and legal staff working into their 70s?

How long do the baby boomers plan to work?
In a recent speech to the Denver Chamber of Commerce, Ms. Lynn Martin, the former Secretary of Labor, proclaimed that 76 million baby boomers are poised to retire by the end of the current decade. This means approximately 10,000 workers per day for the next 10 years. This will account for approximately 40 percent of the current workforce.[4]

But does this in fact mean that these boomers will actually elect to retire? The literature seems to answer this with a resounding no. What becomes apparent is that no "one size fits all" when it comes to whether, when, and how the boomers will elect to retire. Retirement is an individual decision.

The "normal" retirement age is usually pegged to when one can begin drawing Social Security benefits. Generally, those who turn 65 may begin to draw their Social Security benefits. This age will generally increase to 67 in 2022.[5]

For the older boomers, they can elect Social Security benefits if they turned 62 in 2000. This age bracket of 62–65 is simply the range we have traditionally considered as appropriate for retirement. But this does not mean that the boomers will elect to do so. There are several factors that weigh into the decision to retire.

1. Financial resources available for retirement. First, the longer one waits to elect Social Security, the greater the benefit. For instance, in my own case, I could elect to receive Social Security benefits in two years at age 62. But if I wait until age 70 to elect Social Security, then my monthly payment would increase by approximately 40 percent.[6]

Second, very few Americans have any traditional pension or defined benefit plan coverage anymore. Most employers in America today have some form of self-directed savings plans known as defined contribution plans, like our 401K plans.[7] Thus, for most boomers, their retirement nest egg will be determined by how disciplined they were in saving throughout their working careers. Obviously, if you have not done a good job of saving for retirement, then your economic incentive to continue working is greater.

2. Health care concerns.  In addition to the trend away from pension plans, the prospective retiree is concerned about the rising costs of health care and how to pay for health care needs in retirement. In a recent survey by Merrill Lynch, the unpredictable costs of illness and health care are by far the boomers' biggest concern. The boomers are more worried about how to cover major illness than about dying.[8] Another factor in this equation is that generally you are not eligible for Medicare health benefits until age 65.[9] Thus, many boomers may be motivated to continue working as long as they can in order to receive health care coverage provided by their employers.

3. Working to stay active.  Today, most boomers hold down jobs that are less physically demanding than their parents experienced.[10] A recent AARP survey found that 91 percent of workers 45 years and older say that working helps keep them healthy and active.[11] Most boomers including, I would assume, legal professionals, would concur with the conclusion that working is a way to stay physically and mentally active.

The fact is that most of us work because we find it just plain enjoyable.[12] For those who don’t like what they are doing, early retirement may be their out.

4. Increased family responsibilities of the boomer generation.  Many of us are now also in the so-called sandwich generation. We are caught between supporting teenage or college-age children and elderly parents. In general, boomers who are supporting or caring for dependent family members are less likely to retire from the workforce. [13].

What does the boomer retirement phenomenon mean to the legal profession?
For those of us in the legal profession, we are simply a subset of these boomer statistics and surveys. Much of what is said about the boomers and retirement applies to our profession as well. However, lawyers also hold a unique and privileged position in society that permits us to retire from active private practice and yet continue to benefit society through public interest or pro bono activities.

Over the next 20 years, the number of lawyers in America over 50 will triple. By and large, this group will be the healthiest and wealthiest generation of lawyers to approach retirement.[14] This may mean a wholesale transformation of our law firms and the private practice of law.

One study completed in 1999 found: "After a generation during which older lawyers were relatively scarce compared to the abundance of younger lawyers, the profession is entering an era in which older lawyers will be equally plentiful."[15] In addition, the consolidation of private law practices in the legal industry since the 1960s has shown the decline of the solo or small firm and the growth of the large firm enterprise. "In 1960, only a few thousand lawyers were in firms of fifty or more lawyers; today there are over 100,000."[16]

Large firm practice, with its emphasis on billable hours and profitability, has become a "young person’s game."[17] In fact, one study of large Chicago law firms concluded that there is an inverse relationship between the size of the firm and the presence of older partners. Therefore, the larger the firm, the fewer older lawyers.[18] These numbers suggest that lawyers in larger firms are likely to end their tenure earlier than their colleagues in smaller firms.[19] Whether these older lawyers retired voluntarily or involuntarily is an open question.

If you think that issues of age discrimination are not alive and well in the law firm business, then I commend to your reading the various articles about the age discrimination action brought by the EEOC on behalf of a number of former Sidley & Austin partners who were involuntarily downgraded or expelled from the partnership in 1999.[20] The law firm world is now paying close attention to how to handle the graying of its partners.

Many law firms have mandatory retirement ages for partners ranging from 62 to 70. But many lawyers in this age bracket are not ready to retire.[21] In a recent study conducted by Altman Weil, Inc., most lawyers surveyed were opposed to mandatory retirement. "It was no surprise that the lowest support for mandatory retirement is found among older lawyers."[22]

There is a new reality in the private practice of law—that 65 is not old anymore. Many firms with mandatory retirement limits are losing healthy, experienced, and productive partners because of an archaic view of when a lawyer should retire.[23] On the flip side, some older lawyers continue to practice when they shouldn’t.[24] However, as Dudley Panchot, chair of the Washington State Bar Senior Lawyers Section, stated recently, "Most attorneys don’t want to practice beyond the time they’re capable."[25]

All of these surveys and comments are instructive to lawyers and their law firms in trying to manage the older lawyer. First, mandatory retirement provisions in partnership agreements must be revisited. Losing an experienced and vibrant partner because of some rigid age requirement is not sound business judgment. This is not to say that as lawyers age, there is no need for any oversight of their practice habits. Some oversight of the cases and matters handled by the older lawyer may be necessary in order to ensure the client is being well-served and to prevent any malpractice issues.

Second, but more importantly, law firms need to be flexible in how they treat or handle their aging partners. There are good reasons for both a law firm and the older lawyer to work cooperatively to phase in retirement.

Not everyone is ready to retire or give up his practice entirely. Every person will have a different view of when and how she will retire. In order to capitalize on this rich and experienced resource of the older lawyer generation, law firms must be willing to make retirement arrangements with each lawyer that are fair to both the firm and the individual. This, of course, may mean fewer billable-hour expectations along with a commensurate downward adjustment in compensation.

For other legal professionals and staff, this flexibility may mean a number of different types of work arrangements like shorter workweeks, fewer hours, flex hours, job sharing, etc.[26] Much as law firms have adjusted their work requirements to meet the maternity needs of their young professionals, they now must adapt to the needs of the older legal professional who desires to continue working. Flexible work schedules and time off will permit law firms to retain the experienced legal secretary or assistant and also meet the desires of their employee.

As for the retiring legal professional, there are numerous pro bono and public service opportunities available to all of us. Retirement is an opportunity to truly follow your passion. As trained legal professionals, there is surely an organization or cause that can utilize our talents.

So for us boomers in the legal profession, we have many opportunities and challenges ahead as we approach retirement. But one thing is for certain: the boomer retirement will affect the business of the private practice of law for the next 20 years.

For now, I’m "just lookin' for fun and . . . feelin' groovy."[27]