Law firms and prospective clients often show grey discrimination when choosing a lawyer. Like clients, most family law firms want attorneys who are “seasoned” – but not over-ripe.
By Henry Gornbein, Family Lawyer and Author
Are aging family lawyers put out to pasture too soon? When is it the “right” time to retire?
These are interesting questions. Let’s first define what is meant by “aging family lawyers.” I have been practicing family law for over 50 years. Looking back on my career and those of many of the leading family law attorneys where I practice, some of the most productive years for family law attorneys are in their 50s and 60s. I believe that it takes at least 10 years to really know your craft in family law.
It is important to have an understanding of the law, but it is just as important to know the workings of the legal system where you practice. This takes time. The old saying that a good attorney knows the law and a great attorney knows the judge is very true! It takes time to learn the nuances of the city, county, state, province, or region where you practice.
Unlike medicine, the laws are different in every state or province. Practices differ from court to court and this can make a difference. I have learned over the years that a given set of facts can produce a different result depending upon the judge. This is true even in the same courthouse where there are several different family law judges.
Grey Discrimination in Family Law Firms
In my experience, most family law attorneys enter their prime in their 40s and can still be excellent lawyers into their late 60s.
There is also a difference between working for a medium-large law firm and having your own small firm or individual practice. Many law firms in the past would have mandatory retirement ages. With some firms it might be 65, others might make someone step down at age 70.
In Michigan, where I practice, judges cannot run for reelection once they reach 70; they can finish out their term and then must retire from the bench. Many older attorneys in firms will be put into an “of counsel” situation where they work fewer hours at a greatly reduced income. However, we are now living longer and things are changing.
Family Lawyers Must Also Be Rainmakers
The other key issue is that in family law, more than in many other legal specialties, bringing in new clients is critical. In most law firms, income and bonuses are geared towards those who are rainmakers more than those who are called the grinders. In family law, the ideal is to be able to bring in the clients and do the work as well. These attorneys are the most highly compensated and valuable to a law firm.
Family law diverges from other practice areas in many significant ways. Unlike many other practice areas, in family law, we must reinvent the wheel every day. Whenever we close a case we must find a replacement. Unlike corporate or tax lawyers, for example, family lawyers do not have clients who will be staying with us for many years – or even for our entire careers. (We may have repeat clients for second marriages or divorces, but we certainly cannot count on this.) Family lawyers have to be out there looking for new clients all the time.
We are only as good as our last case – which can be problematic because there are often no “winners” and neither party is really happy with the result. Divorce is a difficult time in our clients’ lives; even when we achieve 99% of the client’s goals, they tend to focus on the missing 1% because their emotions are running high.
Looking back over my career, I think that clients want an experienced attorney but they don’t want one who looks like he or she has been around too long. Being “long in the tooth” can be a drawback. This translates into the ideal attorney being in their 40s or 50s.
Grey Discrimination: Seasoned vs. Over-Ripe
The 60s can also be very good years for an attorney who has an excellent reputation. Once you hit the 70s, however, it can be much harder to bring in business, and the grind of family law can also take its toll on the attorneys as well. The area of family law is not only physically demanding with the constant court and hearing dates and deadlines, but it can also take a huge emotional toll because of the psychological issues that go hand in hand with every divorce or custody battle. During this pandemic, a family law attorney who is in his or her 50s or 60s and out of work or laid off is going to have a much harder time being reemployed, especially if he or she is no longer a rainmaker.
There is definitely discrimination against attorneys who are greying – from law firms as well as prospective clients. Like clients, most law firms want attorneys who are seasoned but not over-ripe. Many successful lawyers have much of their identity wrapped up in their careers, and they cannot imagine themselves living a life that doesn’t involve practicing law. Unfortunately, some aging lawyers are not as sharp as they used to be; they do not have as much energy and they are often more burned out than their younger counterparts.
Grey Discrimination: When to Call it Quits
A final issue is knowing when to retire. Here are some questions to ask yourself:
- Do you have enough money to retire?
- Do you still have the energy to grind out the hours for hearings, depositions, and trials?
- Do you still look forward to meeting with clients and trying to solve their family law problems?
- How is your hearing?
- Are you still mentally sharp?
- Do you sometimes fumble for words?
- Do you have “senior moments?”
- Are judges and referees or other court officials still listening to you?
- Are you losing patience with clients and their problems?
- Do you find that you look forward to that hearing or trial or do you find it becoming more and more burdensome?
- Are you still able to be retained by clients for their family law matters?
Henry S. Gornbein is a Fellow of the AAML and IAML and a past president of the AAML’s Michigan chapter. He is the author of Divorce Demystified: Everything You Need to Know Before You File for Divorce, and coauthor of Child Custody: A Complete Guide for Parents. He is also the founder and legal editor of Gracefully Greying. www.gracefullygreying.com
Gender-Based Discrimination in Family Law: Forging a Path in a Man’s World
The fact that we’re now talking about gender-based discrimination, racism, and other biases in the family law system is a step in the right direction.
Call for Submissions: Diversity, Prejudice, and Discrimination in Family Law
There have been scholarly articles and research papers published on the topic of discrimination in family law, but we’re interested in what you have seen or experienced when it comes to diversity, prejudice, and discrimination in the family law system – both from a career standpoint and from the laws as they apply to your clients.