Part I of this article describes the legal framework for analyzing whether a partner can sue under the Age Discrimination in Employment Act ("ADEA"), focusing on two fairly recent decisions in this area: (i) The U.S. Supreme Court's 2003 decision in Clackamas Gastroenterology Assoc., P.C. v. Wells, a case in which the Court had to determine whether director-shareholder physicians in a medical clinic should be deemed employees for purposes of the Americans with Disabilities Act ("ADA"); and (ii) the Seventh Circuit's 2002 decision in a lawsuit brought by the Equal Employment Opportunity Commission ("EEOC") against the law firm Sidley & Austin ("Sidley"), in which the agency alleged an age discrimination claim on behalf of 32 demoted former equity partners in the firm. While several years have passed since the courts rendered these decisions, recent developments within the legal community, combined with current economic conditions, have exacerbated significantly the impact of these cases. Part I discusses the holdings of these two cases, describe some of the reactions within the legal community to these two cases, and highlight some potential concerns regarding the outcomes in these cases, particularly when applied to the modem large law firm.
Because this article focuses on the impact of Clackamas and Sidley on law firms, particularly the larger ones, Part II sets forth an analysis of the modem large law firm, describing how modem firms have evolved in terms of their hierarchy, demography, goals and objectives. Part II focuses in particular on recent changes within the structure and culture of large law firms and discusses the impact that these changes might have on firm lawyers.
Part III begins to bring together the above information, describing in greater detail how cases like Clackamas and Sidley might undermine the operations of modem large law firms. Part III will discuss some of the specific steps that firms may take in response to these cases and will describe how those steps might impact lawyers in a firm.
Finally, Part IV proposes some solutions to this dilemma, suggesting ways in which law firms might provide partners with the protections potentially required by Clackamas and Sidley, while still running their firms in an effective, efficient, and profitable manner.
Jessica K. Fink, A Crumbling Pyramid: How the Evolving Jurisprudence Defining “Employee” Under the ADEA Threatens the Basic Structure of the Modern Large Law Firm, 6 HASTINGS BUS. L.J. 35 (2010).