Canadian Lawyer

FOR MOST OF US, IT IS A VERY BIG STEP TO WALK AWAY FROM WHAT WE'VE KNOWN FOR MANY YEARS — THE BIG PAYCHEQUE, THE ORGANIZATION, JUST FEAR OF FALLING. . . . THE MOMENT YOU TAKE THE STEP, YOU LOOK BACK AND SAY 'THAT WAS EASY' AND THERE IS A WHOLE WORLD OUT THERE OF PEOPLE WHO NEED LEGAL SERVICES. JIM TITERLE, MILLER TITERLE LLP and those who can't be served by big firms because of their high legal fees or conflicts of interest. "I didn't want to be a painting on the wall," says Freiheit, who helped develop and then headed up the business law, insolvency, and commercial litigation practices over a period that saw Stikeman grow from 16 lawyers when he joined in 1968 to more than 500 today. "We will be able to get good work from different law firms that have conflicts or where the type of work or the client is not really appropriate for them because of the hourly rates," he says, bubbling with enthusiasm about his new life. "Being a smaller firm with a smaller overhead we are able to pro- vide services to them at a cost signifi- cantly less than at a major firm." Freiheit is a good example of the kind of successful transition many of the bigger law firms want for the grow- ing number of older lawyers in their ranks in order to make room for a new generation of practitioners. He was one of those responsible for imposing a mandatory retirement policy and agrees with it for the same reasons now. "It allows for the transitioning of clients to younger lawyers, so the firm is able to offer continuity to a client even as the lawyer gets older," he says. "If lawyers keep hanging onto their clients over time, the clients themselves change — there are new people taking over and they don't necessarily relate as well to the guy that has been there for all those years." But Freiheit and others suspect trick- times are ahead in applying the ier mandatory partnership retirement poli- cies because many more lawyers now want to continue practising beyond the age of 65 — a frequent cutoff age in many age-based partnership agree- ments — because of financial or profes- sional reasons. The fact is that bigger law firms with age-based policies have pushed the mandatory retirement age lower than it used to be and have started to provide fewer if any options for those who want to stay on longer. "Lawyers are going to resent and resist retiring at early ages despite the policies that are in place, so I predict that there is going to be a change in behaviour because the lawyers who don't want to retire are not going to transition their clients as easily as they did in the past," Freiheit asserts. "When you remove from the partner the assurance of a continuing retire- ment policy that takes him into his later years (after 65, 67, or 68, depending on the agreement), those partners who want to protect their future are going to retain their influence with clients so as to maintain their bargaining position. So what is going to happen is that there is going to be more individual negotia- tions on a case-by-case basis and an ad hoc retirement policy with all the risks that flow from that, including claims of discrimination, of favouritism, political favours, and all kinds of stuff once you start negotiating individual agreements. It is a difficult situation." Those with extra leverage are older lawyers with high billings and a public profile and there is anecdotal evidence that law firms are continuing to make exceptions for them on a discretion- ary and perceived strategic basis. Those exceptions come at the very time bigger firms with such policies are redoubling efforts to get other older partners to prepare to retire, with an ideal transition 28 M A RCH 2012 www. CANADIAN Lawyermag.com typically beginning three to seven or more years before the prescribed cut-off age through more aggressive client tran- sitioning campaigns. The case of British Columbia law- yer Mitch McCormick, who launched a discrimination suit against Fasken Martineau DuMoulin LLP over a dic- tate that he comply with mandatory retirement from the partnership at age 65 and accept no possibility of continu- ing employment after that, adds more uncertainty to the mix. Law firms with mandatory retirement policies have been analyzing their partnership agree- ments and combing their wording in the wake of the B.C. Human Rights Tribunal decision that it did indeed have jurisdiction to hear the merits of the McCormick case, a decision upheld by the B.C. Supreme Court that is set for another hearing before the B.C. Court of Appeal in April. While any favourable decision for McCormick could spawn other age- based discrimination suits against other firms, not everyone believes lawyers will rise up in a tide against the firms where they worked for so many years. And some suggest that law firms will keep, but adapt, any mandatory retirement policy on any judgment ruling that law- yers are employees rather than owners of a law firm through the partnership and continue to focus on the upcoming generation to secure their survival. In the meantime, the ongoing imper- ative of client transitioning and the gen- eral enforcement of mandatory retire- ment is a situation that has other con- sequences both for firms and individual lawyers. Some lawyers — Ottawa litiga- tor and former McMillan LLP partner

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