My brain’s been doing a lot of “Scootering” lately: forgetting a fact, then remembering it, then forgetting it again. (see WaPo article, “Where’d We Leave that Darn Fact?,” Feb. 11, 2007) For well over a month, I’ve “forgotten” to fulfill my promise to write about our graying legal profession. That’s despite seeing many reminders in the news and coming across the following quote while reading the P.D. James novel “A Certain Justice” (Seal Book, 1997, reprint 2006, at 294):
“I shall, of course, be retiring as Head of Chambers at the end of the year. A lawyer whose mind is apt to go blank is not just inefficient, he’s dangerous.” - Hubert Langton, (the already-dangerous) Head of Chambers
What finally pushed me to finish this lengthy piece is the news from the Alzheimer’s Association, that “Alzheimer’s Disease Prevalence Rates Rise to More than Five Million in the United States” (March 20, 2007; full report, 28 pp pdf; fact sheet). Apparently, “One out of eight people age 65 and older has Alzheimer’s, with up to half a million Americans under 65 suffering from early onset Alzheimer’s. Ten percent of the lawyers in Washington State are over age sixty. If the numbers are similar for the entire country, there may already be 10,000 to 15,000 lawyers with Alzheimer’s disease. How many of them are still in practice? [update: (March 22, 2006): "State Bar Association Calls for Increasing Retirement Age for Judges [to 76],” NYSBA Press Release, March 22, 2007]
It’s been almost two years since our cranky alter ego “Prof. Yabut” wrote the posting “peridementia and the aging knowledge worker.”
Yabut defined “peridementia” as the period in which the subject starts to have a mild version of the loss of intellectual capacity that is associated with dementia — i.e., impairment of attention, orientation, memory, judgment, language, motor and spatial skills, and function.
As peridementia could very well occur long before one’s retirement, Prof. Y wondered when interference with job functioning becomes significant enough that something needs to be said and done about it within a firm or within the bar, given the ethical obligation of lawyers:
- to provide competent (Model Rule 1.1) and diligent (Rule 1.3) service to clients
- to reasonably consult with the client and keep the client reasonably informed about the status of the matter (Rule 1.4)
- to refuse or withdraw from representation of a client when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” (Rule 1.16a), and both
- to report to disciplinary authorities the conduct of another lawyer that “raises a substantial question” as to the lawyer’s fitness to practice law (Model Rule 8.3) and
- to “make reasonable efforts as a manager or supervisor to ensure that a law firm “has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (Model Rule 5.1).
the senior partner
has a senior minute
. . . . . . . . . . . . . . . . . . . by dagosan
Since then, the topic of a graying legal profession has gotten quite a bit of attention. Back in 2005, my alter ego fretted:
If my otherwise-healthy, middle class and professional, over-50 friends are any indication, there’s a lot of “peri-dementia” going around. People who joked a few years ago about their first batch of Senior Moments, aren’t joking any more. We seem to be having “brainos” that are quite a bit more worrisome than the increased numbers of typos found in our documents. They include episodes of mild confusion and disorientation; skipping steps in necessary tasks; and memory lapses considerably more important than the proverbial word on the tip of our tongues.
Because “76% of boomers intend to keep working and earning” after retiring from their regular job (Merrill Lynch survey, Feb. 2005), and large numbers of Baby Boomers (in both the U.S. and Canada) will in fact have no choice but to continue working, due to financial imperatives, Prof. Yabut opined that peridementia could become commonplace in the workplace. And, he asked a few pertinent questions:
What are actual or potential employers, and co-workers, going to do about peridementia? How should ethical requirements of competence affect the choices made by lawyers and other professionals? Will age discrimination laws become a shield for those who aren’t quite as sharp as they used to be? Does society want to offer such protection?
Professors Becker and Posner wrote in 2005 about the related topic of judges and law professors who “Overstay Their Welcome” Judge Posner focused on septuagenarians, noting that a loss in mental capacity from aging “may reduce the value of [their] entire output to zero.” Prof. Daniel Solove at Prawfsblawg wasn’t convinced that the problem of mental acuity is significant enough to warrant the testing suggested by Posner, but noted that “retirement is often the most effective remedy for dealing with a lazy or problem-generating judge or faculty member,” while preserving tenure.
the old days . . .
black and white
. . . . . . . . . . . . . . . by andrew riutta – Full Moon Magazine (2005)
Becker and Posner were talking about the pre-Boomer generation of judges and lawyers, whose aging problems are already with us. Even more than in 2005, there are strong reasons why I believe Baby Boomer peridementia is also very likely to blossom within the legal profession in the coming decade or two, as BoomerEsq decides to work well past the traditional retirement age (a trend already noted in studies such as “The Changing face of the legal profession,” which is discussed below):
- As the Pro Bono Institute’s Second Acts program has noted, “Legal researchers and demographers have determined that, over the next two decades, the number of lawyers in the United States aged 50 and older will triple.”
- Many organizations and bar groups are encouraging older attorneys to move into public interest legal roles after they retire from the “first legal career”. See, e.g., “The Coming Wave,” Harvard Law Bulletin, Fall 2006; and Marc Galanter’s 1999 law review article “Old and in the Way“. The 2002 ABA family law pro bono report noted (at 9): “senior attorneys are a prime source from which to recruit new pro bono attorneys. ” [Aside: Will peridementia -- or worse -- follow affluent lawyers who retire from their first careers and enter a public interest Second Act? How will this affect their new, at-risk or low-income clients? How closely can or will volunteer lawyers be monitored, and by whom?]
- The trend of Boomer undersaving continues, making it ever more likely that many lawyers will need to continue working well past “traditional” retirement age. (e.g., Register-Mail/AP, Boomers may face funding shortage: Saving at lowest rate since Great Depression,” Feb. 2, 2007). [Aside: Is it safe to assume that this phenomenon particularly affects "public interest" and "solo" attorneys, who have less income than their professional brethren? What does that mean for their clients?]
- The factors that are most predictive of delayed retirement — “Lower rates of retiree health insurance offers from employers, higher levels of educational attainment, and lower rates of defined benefit pension coverage” — fit many segments of the legal profession closely. “Why Do Boomers Plan to Work so Long?” (Urban Institute, December 2006)
- Bar associations are working to convince law firms to end the practice of mandatory retirement for partners, while partners are suing their former firms for age discrimination after being forced out or offered unfavorable retirement packages. Such trends could allow lawyers to keep working longer. See, e.g., “Happy Birthday. Vacate Your Office,” New York Times, December 8, 2006; EEOC v. Sidely & Austin, press release, Jan. 13, 2005; “Freshfields hit with age discrimination claim” (TimesOnline, Jan. 31, 2007; via The Barrister Blog); “Law firms in dock as over-50s file first ageism suits” (The BusinessOnline, Jan. 10, 2007); and “Mayer Brown ‘De-Equitizes’ 45 Partners” (New York Law Journal/Law.com, March 5, 2007), plus Prof. Bainbridge, “Does a Partnership Breach Fiduciary Duties by Firing Partners to Become More Profitable?” (March 2, 2007). update (March 22, 2007): New York State Bar Association Calls for Increasing Retirement Age for Judges (Press Release, March 22, 2007), calling for a uniform 76 years for all judges, and saying the practice of mandating retirement among attorneys in private law firms was “both unwarranted and unwise.”
- Baby Boomers seem far more inclined than previous generations to deny (or cover-up) the effects of aging (including their gray). They also give very little credit to the ability of the coming generation of professionals (see Washington Lawyer, From the President, Feb. 2007). Ellen Goodman recently pointed out these attributes in her Boston Globe column, “Junior envy,” January 26, 2007, asking “Is it possible that the same generation that famously didn’t trust anybody over 30 when they were 20 doesn’t trust anybody under 50 now that they are turning 60?” And, Goodman notes, “One of the charms of the boomers . . . is how they are managing to age without getting old. My favorite factoid comes from a Yankelovich study showing that boomers define ‘old age’ as starting three years after the average American is dead. It’s a new wrinkle on the 1965 lyric by The Who: ‘I hope I die before I get old’.” [And see "Is Looking Your Age the New Taboo?" (New York Times, March 1, 2007)]
- With so many of them spending long periods of time taking modern serotonin-uptake antidepressants, Baby Boomers are facing a potentially enormous mental-neurological time bomb. Thus, in his book Prozac Backlash (2000), Joseph Glenmullen, M.D., warns of potential side effects from Prozac and similar serotonin-boosting antidepressants. Dr. Glenmullen points to memory loss problems and structural “silent brain damage” due to the brain’s “backlash” reaction to artificially elevated levels of serotonin. The backlash may make users prone to prematurely develop neurological conditions (including dementia) or leave them with unsafe levels of healthy brain cells when faced with the normal aging process. (see Chapter 1, The Awakened Giant’s Wrath: Risking Brain Damage) [Could this be why so many Boomers seem to have memory problems at a far younger age than their parents did? Or is it the Teflon and microwaves?] Because lawyers are well-known to suffer depression at rates above all other professions, it is safe to say that a large number of us have experienced long periods of articifically-elevated levels of serotonin.
all of the managers
show a touch of grey
. . . . . by matt morden at Morden Haiku
I strongly agree with pundits who herald the wisdom that can only come with age, and who plead that the elderly be treated with dignity and respect. But, there can be little doubt that many of the mental faculties that are important in everyday law practice are adversely affected by old age. For example, “older adults are not only more inclined than younger adults to make errors in recollecting details that have been suggested to them, but are also more likely than younger people to have a very high level of confidence in their recollections, even when wrong.” See “Older Adults May Be Unreliable Eyewitnesses, Study Shows,” Medical News Today, 25 Feb 2007 (via Idealawg). Moreover, in the vast hinterlands of legal practice in America (outside the realm of elite law firms) — where most lawyers toil and most clients are served — there are a lot of older lawyers who have failed to keep abreast of changes in the law, even in areas where they regularly practice.
For every sage jurist or lawyer who brings glory to the profession, we have all winced over (or smirked at) the courthouse lawyer who has overstayed his welcome in the profession. What will the Bar do to protect our clients (and our profession) when the Overtimers greatly multiply in number over the next couple of decades?
not on the tip of my tongue –
forgetting the name
of the pretty one
………………………………. by dagosan
works in shades of grey
. . . . by Tom Painting from The Heron’s Nest
My primary concern continues to be the same as when this weblog was called ethicalEsq: the welfare of the “average” client, whose lawyers work on Main Street, not Wall Street. The legal profession has never done an adequate job of policing its ethical rules — and that is especially true of the demand that lawyers practice with competence and diligence. (see, for example, this post and that one; and my recent piece at shlep on “Family Law Civil Gideon, March 9, 2007). I’m willing to assume that most large law firms (“BigLaw”, “White Shoes”, etc.) have or will have in place procedures that will help assure that the workproduct of aging lawyers is monitored and competence maintained — with valued partners given the chance to adapt their practices to their changing mental and physical realities. Unless prevented by age discrimination laws, it’s most likely, of course, that financially “unproductive” lawyers will be pushed out by larger firms prior to becoming a competence problem [see below, and the recent flap over "de-equitization" at Chicago-based Mayer Brown, which has provoked concern from Rick Georges and Eric Mazzone, and outrage by Larry Bodine (via LegalBLogWatch)].
With the obvious disclaimer that no generality fits all members in any category, I have much less confidence in solo, duo and other small firms being prepared to deal with the problems of aging lawyers. Despite all the attention given to the BigLaw crowd in NYC, such firms make up 80% of the practicing bar here in New York State. In “SmallLaw” firms, the person deciding what to do about a problematic older lawyer is very likely to be that very same lawyer (or maybe his brother or childhood friend, who will be facing the same issue soon). [An analogous situation is the lack of built-in monitoring and "self-discipline" in solo and duo firms, which has resulted in a higher incidence of theft from clients by lawyers in such firms (see this prior post).]
According to a recent study of the legal profession in Ontario, Canada, the trend of lawyers deferring retirement is most apparent in nonurban areas, and is also more prevalent among sole practictioners — which are “over-represented in the ‘over 55′ age group” — than large firms. Moreover, the trend is “particularly apparent in the personal legal services fields” (real estate, family law, wills, criminal law). “The Changing face of the legal profession,” LawPro Magazine (Vol. 6:1, Winter, 2007; via Stephanie at Idealawg). Clearly, the Main Street legal client has more to worry about than clients of Wall Street/Biglaw as the profession ages.
Under the fold, I look at press, weblog, and periodical coverage of issues relating to the Graying Lawyer, note the general failure to look at the competence/ethics issues, and spotlight a few approaches that have been suggested as possible solutions. If you want some food for thought and a collection of useful links, keep on reading. Ditto if you’d like to help combat the mix of protectionism, pride and poor people’s skills that will surely keep far too many lawyers practicing well past their pull date. If you’re looking for definitive answers, you may already be suffering from peridementia. [Beware (or Rejoice): this essay grew to 11,000 words.]