The New York Judge Rules Law Partner is Not an Employee, Cannot Sue for Age Discrimination
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A favorable decision for Holland & Knight in a long-running fight over the termination of a former partner could make it harder for other law firm partners to sue over alleged unfair treatment, at least it is in the Empire State.

According to the court papers, John Weir, who has been battling his former firm since 2002, was expelled from the partnership at the age 55 over what the firm claims was just a disagreement abut the direction of their labor and employment practice. Weir, who became the so-called New Class B Capital Partner at Holland & Knight after the firm had merged with Haight Gardner Poor & Havens back in 1997, which led the firm’s labor and employment group in New York at one point.


Weir sued Holland & Knight initially back in 2005 in the Manhattan federal district court, claiming that the firm had let him go because of his age and because it didn’t want to have to pay for the retirement benefits he says he was entitled to under the ERISA plan he had. After the judge After the judge had heard the case, and dismissed Weir’s claims back in 2007, on the statue-of-limitations grounds, Weir changed his complaint and then tried to sue Holland & Knight in a New York state court.

On December 9, New York Supreme Court Justice Marcy Freidman ruled on the summary judgement by dismissing Weir’s entire complaint, which included the claims of the age discrimination and retaliation, breach of the fiduciary duties, breach of contract, and fraudulent inducement.

In tossing around Weir’s discrimination claims, Friedman relied in part on a six-part test established in a US Supreme Court case, Clackmas Gastroenterology Associate v. Wells, that was first used to determine whether a shareholder in a professional setting can be considered an employee under the Americans with Disabilities Act. The decision has since then been applied by courts outside the context of the ADA.

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Friedman said that Weir did not pass the Clackmas test, nor did he ”submit any evidence to show that he was not a bona fide partner” with some control over the firm.

Robert Hillman, who is a professor at the University of California, Davis School of Law and an expert on partnership, said that as the law firms begin to grow to include what, in some instances, are hundreds of partners, the line between the partner and the employee has grown increasingly blurry.

”This case reminds us that there’s an issue here, and it affects a lot of law firms,” Hillman says, adding that the facts related to an individual fight often determine how influential a given partner is within his or her own law firm.

Friedman’s ruling departs from the one issued by the US Court of Appeals for the Seventh Circuit in connection with a case brought by the Equal Employment Opportunity Commission against Sidley Austin.

In that case, the EEOC alleged that the firm had taken 32 former partners of their equity stakes due to their age. This case was settled in 2007, with Sidley Austin agreeing to pay a total of $27.5 million to the former partners, but not before a three-judge Seventh Circuit panel had ruled that the EEOC appeared to have enough facts to show the Sidley partners qualified as employees and were therefore protected by the anti-discrimination laws.



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