f/k/a . . . the archives

March 20, 2007

the Graying Bar: let’s not forget the ethics

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 10:22 pm

erasingF 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):

CertainJusticeJamesI 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.

ProfYabutS 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:

  1. to provide competent (Model Rule 1.1) and diligent (Rule 1.3) service to clients
  2. to reasonably consult with the client and keep the client reasonably informed about the status of the matter (Rule 1.4)
  3. 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
  4. 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
  5. 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).

mid-argument
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.

LawProAgingBoomersMar07G 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 . . .
autumn colors
black and white

. . . . . . . . . . . . . . . by andrew riuttaFull 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):

  1. pointerDudeNegS 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.”
  2. 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?]
  3. 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?]
  4. ProfPointer 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)
  5. 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.”
  6. 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)]
  7. stopwatchS 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.

budget monitoring
all of the managers
show a touch of grey

. . . . . by matt morden at Morden Haiku

podiumS 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

storm warning
the watercolorist
works in shades of grey

. . . . by Tom Painting from The Heron’s Nest

NoYabutsT 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)].

blackCheckS 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.

blackCheckS 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.]

stopwatchSN In a feature article headlined Graying of the Bar” fueling concern in court” (April 9, 2006), The Seattle Times sounded the alarm:

“The so-called “Graying of the Bar” — officially under way this year as the first wave of baby boomers turns 60 — is fueling concern that incompetence due to declining skills, failure to keep pace or dwindling mental acuity may soon rise in the legal profession. It’s a highly sensitive issue in a profession that traditionally honors its elders for long careers. “And, in fact, many practicing lawyers remain sharp and effective well into their later years. When there are impairments, though, what’s at stake for clients can range from a botched defense or an unfair divorce settlement to a lost claim for personal injury.

“Firms have their own legal liability to consider, and an aging attorney may face a black mark at the end of an otherwise unblemished career.”

Of course, the article doesn’t suggest that all older lawyers are incompetent. It notes, however, that

“Regardless of intelligence or education, age is the biggest risk factor for developing Alzheimer’s disease, which afflicts 10 percent of people older than 65 and up to half of those older than 85.”

The article continues with the reasonable assertion that, “Of greatest worry are older lawyers who aren’t ready to retire and who work alone or in very small firms with little oversight or backup to protect clients.” It also notes that, in response to cases they have started to encounter, “A few states, including Washington and Oregon, have created rules and alternatives to formal discipline in dealing with all kinds of impairments. They have trained staff on the symptoms of dementia, developed retirement counseling programs and offered assistance on closing a practice.”

A gray dawn –
last night’s poker cards
facedown on the table

……………………………….. by Rebecca Lilly- A New Resonance 2

Perhaps because the blawgiverse is oriented toward younger members of the profession, there was a surprising lack of response to ‘The Graying of the Bar” article at law-related weblogs. Despite the piece’s focus on disciplinary issues that might arise with the loss of mental acuity, I can find no mention of the article at either The Legal Ethics Forum or Ben Cowgill‘s Legal Ethics Blog. The f/k/a Gang was just about to enter our punditry hiatus and we didn’t even notice the article when it was published. At MyShingle, Carolyn Elefant pointed out that “the problem of a few older lawyers can spoil things for those older lawyers who remain sharp later into their careers” and recommended:

“If you find yourself working with an older solo or small firm lawyer, or up against one in court who you think might be suffering from a mental health issue, why not reach out and suggest tactfully that they seek help from a bar counseling program. Many of these older lawyers have mentored us and now, as they age, we can return the favor.”

erasingF Stephanie West Allen at Idealawg also had a brief response to the article. In her posting “Some lawyers go gentle into that good night, others do not” (April 9, 2006), Stephanie notes that “The balance between honoring older members of the profession and insuring that clients are adequately served will be requiring more and more attention,” and offers the notion of not going gently into the night (ala Dylan Thomas), concluding:

“The head beneath the grey hair often holds much wisdom; perhaps the aging heart represents the glue in a firm’s culture and values. I hope we will appreciate what greying lawyers have to give, no matter what form those gifts may take.”

Nobody seriously addressed the main point of the Seattle Times article: What should we do when decline in mental acuity and productivity actually threaten a lawyer’s ability to give the competent and diligent service to clients and the courts — with “reasonably necessary” legal knowledge, skill, thoroughness, promptness and preparation — that is required under our code of conduct? Lawyer coach and management consultant Ed Poll of LawBiz.com did write two columns in response to the ST article — “Too Old to Practice Law?” (May 29, 2006) and “Into the Sunset — How will you transition your practice” (June 2006) — which (like any good consultant) he combined and recycled into the Law Practice Today article “Should Auld Lawyers Be Forgot, and Never Brought to Mind?” (Dec. 2006). Here’s how he starts the December LPT article:

“For the first time in U.S. history, four generations are working side by side. Do the benefits of this multigenerational environment outweigh the “graying of the bar” as expressed in a Seattle Times article?”

Poll admits being a “lawyer of a ‘certain age’,” and says “I tend to ignore generational stereotypes.” Despite his age, Poll proves that he can create strawmen and obscure issues with the best legal advocates. His LPT article is written as if the Seattle Times piece had said that “age equals incompetence.” Rather than suggesting ways to handle the subset of older lawyers whose infirmities have already or are likely to cause incompetence, Poll “explains” why older lawyers are are no more likely than younger ones to violate ethics rules. He apparently believes that the solution for the only real problems likely to be caused by lawyer aging is having “a succession plan in place” and keeping up “with evolving professional rules and trends through MCLE” (two services that Poll’s LawBiz.com just happens to provide). With such strategies in place, Poll assures the aging lawyer that he or she “should have no trouble remaining in practice as long as desired.”

the aging gourd
and I
cast our shadows

. . . . . . . . . . . . . . by Issa (David G. Lanoue, translator)

At Idealawg, Stephanie Allen West then wrote that aging does not necessarily result in “dimming, dulling, and dawdling,” and that she agrees wholeheartedly with Poll that age does not “necessarily equal incompetence . . . nor the lack of creativity.” “Graying of the Bar? Try boomeritis prevention for your body and your brain” (Dec. 26, 2006) Of course, Stephanie’s conclusion is not the least bit controverisal and is in no way contradicted in the Seattle Times piece. Although she doesn’t address how to deal with practicing lawyers who do have significantly diminished capacity, Stephanie does optimistically exclaim that there are “many methods by which an aging lawyer can lessen the likelihood of loss of competence and creativity,” describing “a few available for the body and the brain.” The Idealawg post “Neuro-Boomeritis Prevention for the new year” (Jan 1, 2007) continues to present such resources, as does her recent posting on her OF COUNSEL article “Brain Management: Law Firm Leadership on the Neuro Frontier.”

ProfPointer I agree with Stephanie that aging lawyers will in many ways be a blessing for the profession and its clients, and that brain exercise and fit bodies may help some Boomers and older lawyers avoid or reduce a loss of mental acuity. Nonetheless, they surely won’t (even if miraculously practiced by all lawyers) totally prevent the diminished capacity that is sure to increase the incidence of poorly served legal clients as the profession super-ages. No amount of optimism or consultant happy talk will let us avoid the competence and diligence issues — as a profession, nor as individual firms and lawyers. [Not even Kevin O'Keefe's prescription for every ailment -- launching more lawyer weblogs -- will make the downsides of the graying profession go away.]

theological debate…
the creationist greying
at the temples

ed markowski, bear creek (2002)

Two more press articles — one in the mass media and one in a legal publication — are worth discussing. On December 8, 2006, the New York Times published “Happy Birthday. Vacate Your Office,” The article focused on the issue of mandatory retirement for law firm partners (including stripping them of their equity interests or management roles), and it featured the tale of antitrust lawyer A. Paul Victor, who was forced to leave Weil, Gotshal & Manges at the age of 68 (but recovered smoothly by moving to Dewey Ballantine). The main points in Happy Birthday are:

  1. Partner retirement is “a decision that a growing number of large white-shoe law firms are grappling with as aging, yet healthy, baby boomer lawyers look to remain vital and integral rainmakers at the firms where they built their careers. Those desires, however, are bumping up against the harsh new realities and economics that rule inside the clubby walls of many law firms.”
  2. “[A]s law firms adopt a more corporate-like structure that emphasizes revenue and profits per partner, [the options of aging partners] are becoming more limited. That corner office and, more important, the chunk of the firm’s annual profit pool, is being designated to hungry up-and-coming lawyers and associates rather than the legal eagles who once ruled the roost.”
  3. ProfPointer“Unlike corporate America, which, for the most part, dropped mandatory retirement ages decades ago, many big law firm partnerships are keeping up the practice of pushing out older lawyers to make room for new blood. . . . . Anecdotally, mandatory retirement ages seem to be skewing younger at a time when good health and longer life expectancy are increasing.”
  4. “While many bar associations around the country are trying to steer lawyers facing mandatory retirement policies to pro bono work, other associations are trying to change the mind-set behind the policies themselves. Mark H. Alcott, president of the New York State Bar Association, [says] “I’m calling on the profession to recognize that forced retirement of partners is archaic, it’s not necessary, and I’m trying to change the culture rather than impose liability and legal solutions on law firms.”
  5. The Equal Employment Opportunity Commission’s age discrimination suit, on behalf of partners from Chicago-based Sidely Austin (see EEOC v. Sidely & Austin, press release, Jan. 13, 2005), is being watched closely by the bar (and see, “Law Firms Keeping Close Eye on Sidley Case,” Legal Times/Law.com, March 13, 2007).

Despite the treatment of partner retirement in the high-profile New York Times, law-related weblogs gave the article and issue very little play. The Wall Street Journal‘s Law Blog, did give a summary of the article, in Peter Lattman’s post “Forcing Aging Partners to Retire: Fair or Foul?” (Dec. 8, 2006), which also asked:

Law Blog Question of the Day: Richard Davis, Weil Gotshal’s general counsel, told the Times that enforcing mandatory retirement “inherently has some risk,” “but on an overall basis, we think it’s the right approach.” But in a world where the all-stars of American industy routinely play into their 70s and 80s — e.g., Buffett (76), Greenberg (81), Redstone (83), Kerkorian (89) — is it?

Fewer than a dozen people Commented on the question. Similarly, there was virtually no response to the posting “When You’re Sitting in Court in Adult Diapers, Something Is Wrong” (Dec. 11, 2006), at David Lat’s oft-naughty legal weblog-tabloid Above the Law, where you can normally count on a long queue of rude or sophomoric Comments in response to Lat’s unique slant on lawyer news. Lat says “The story explores the pros and cons of having a mandatory retirement age — a legitimate and interesting policy question. But our primary reaction is summed up this by these commenters at the WSJ Law Blog: 1) “[I]f you’re pushing 70 and you really want to trudge in to the office every day there may be something wrong with you. and 2) “By 65, these guys have made plenty of money and should find something else to do . . . Leave some room so that the young bucks can have their day in the sun, too.” Lat concludes with:

One obvious rebuttal: many federal judges remain on the bench well into their old age. But which way does that cut? We can think of a number of judges who probably should have retired years ago. [we've omitted links to particular judges -- but point doubters to Leaving the Bench: Supreme Court Justices at the End (2000; reviewed here), by David N. Atkinson. which is filled with horror stories about U.S. Supreme Court justices who held on to their benches far too long.]

stopwatchSN Another high-profile treatment of aging partners came in the article “Senior Lawyers Are Still Billing After All These Years,” by Zusha Elinson (The Recorder/Law.com, Jan. 2, 2007) Once again, however, issues of competence and service to clients were never broached. Elinson’s piece in The Record instead focused on the many ways large firms are dealing with the role of aging partners. Here are key excerpts from the article:

  1. “It’s a dilemma for many law firms: As their lawyers age, some still want to practice, sometimes at a still hours-intensive pace. Firms must decide how to keep these leading lights lit while making room for new blood — and, at the same time, avoiding, or at least structuring, awkward conversations with once-stellar lawyers.”
  2. “Large firms have phased out the partner pensions they used to offer. Today, big firms employ a variety of older-partner strategies that range from automatically stripping equity-partner status at a certain age to making individual arrangements.” . . . At some other firms, de-equitization comes knocking at an earlier age, at which point partners can decide to retire altogether or remain as of counsel.”
  3. ProfPointer“Heller Ehrman partners must give up their vote and equity stake earlier, at the age of 65. [antitrust litigation luminary] M. Laurence Popofsky, a former Heller chairman who now serves as a senior lawyer at the age of 70, said the policy helps the firm move forward, making room for new partners and new opinions. . . . Popofsky, like many older partners, now has more control over his schedule in his new role, and for him that’s meant fewer hours. . . . Although he doesn’t enter a courtroom anymore, Popofsky is still busy writing briefs and counseling clients. ‘I have always enjoyed and still enjoy the combat of ideas, which is what I specialize in,’ Popofsky said.”
  4. “Law firm management consultant Richard Gary . . . applauds law firms for finding ways to keep older lawyers around. ‘Many of the lawyers whom I know and whom I observe in firms in the [San Francisco] Bay Area may want to slow down as they grow older, but I’ve encountered very few people who want to retire completely,’ Gary said.”
  5. “The reluctance to talk [at many firms about retirement policy] may have something to do with the pending EEOC case against Sidley Austin in Chicago. The EEOC is seeking back pay on behalf of 31 partners it claims were demoted in 2000 to counsel status because of age, arguing that the partners should be considered employees, not owners, and should thus enjoy greater legal protections.”

old rocker —
a gray ponytail
keeps the beat

. . . . by dagosan

blackCheckS Popofsky’s transition from courtroom warrior to “writing briefs and counseling clients,” while reducing his hours significantly, seems like an appropriate move, as he keeps working into his seventies. Similar changes might be an option open to a small portion of aging partners, at large firms. But, the opportunity for analogous flexibility would surely be rare at solo or small Main Street firms. Again, the question must be faced: What should the profession, law firms, and individual lawyers do in response to the diminished capacity that many lawyers will suffer, and the risk of incompetence that may result?

podiumF As discussed above, the Seattle Times article “Graying of the Bar” made two important points: (1) “A few states, including Washington and Oregon, have created rules and alternatives to formal discipline in dealing with all kinds of impairments. They have trained staff on the symptoms of dementia, developed retirement counseling programs and offered assistance on closing a practice.” I have not been able to find materials online about the Washington and Oregon programs, and would very much appreciate any visitors to this site sharing with us information they may have (or may be able to point us to) about geriatric lawyer ethics issues and activities. Sources might be grievance committees, bar associations (especially lawyer assistance programs), and law schools, as well as professional publications or journals. And,

(2) “Of greatest worry are older lawyers who aren’t ready to retire and who work alone or in very small firms with little oversight or backup to protect clients.”

I’m looking forward to seeing the fruits of a Breakout Session to be held in Chicago on Saturday, June 2, 2007, as part of the 33rd ABA National Conference on Professional Responsibility and 23rd National Forum on Client Protection (May 30 – June 2, 2007). The Breakout Session is titled “Ethics for the Ages: Graceful Graying or Senior Tsunami” According to the Conference website:

The panel will discuss the aging of the legal profession and its impact on the lawyer regulatory system. What measures can be used to humanely and efficiently address the problems of age-related impairment and illness that are anticipated to arise with increasing frequency among practicing lawyers? Panel Leader: Donald D. Campbell, Kenneth J. Hagreen, Dr. Caroline Harada, Kim D. Ringler. [biographical information, here]

questionDude I hope the Session, and materials submitted by the participants, will directly discuss how age-related impairment relates to two important ABA Formal Ethics Opinions: Formal Opinion 03-431, “Lawyer’s Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment” (August 8, 2003); and Formal Opinion 03-429, “Obligations With Respect to Mentally Impaired Lawyer in the Firm” (June 11, 2003). Opinion 03-431 is summarized at the ABA professional responsibility website as follows:

A lawyer who believes that another lawyer’s known violations of disciplinary rules raise substantial questions about her fitness to practice must report those violations to the appropriate professional authority. A lawyer who believes that another lawyer’s mental condition materially impairs her ability to represent clients, and who knows that that lawyer continues to do so, must report that lawyer’s consequent violation of Rule 1.16(b)(2), which requires that she withdraw from the representation of clients.

The summary of Formal Ethics Opinion 03-429 on law firm responsibilities states:

If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

LawProAgingBoomersMar07G The current issue of LawPro Magazine (Vol. 6:1, Winter, 2007; via Stephanie at Idealawg) is a special “Aging Boomers” edition. Although there’s a lot of interesting information in the special issue, the Codger Competence issue is only touched upon indirectly. As mentioned early in this piece, “The Changing face of the legal profession” (LawPro Magazine, Winter 2007), a Canadian study suggests that the trend of lawyers deferring retirement is more prevalent in small firms, and in non-urban areas, with the trend being “particularly apparent in the personal legal services fields (real estate, family law, wills, criminal law).” In other words: Joe and Jane Client (not the wealthy or Wall Street variety) need the most protection.

Meanwhile, the LawPro Aging Boomer article “The boomer challenge: Are lawyers ready?” (Winter 2007, 4-pp pdf) focuses on how lawyers will be affected by the wave of aging clients (offering, e.g., Tips on having an elderly-friendly practice and links to elder law materials). Nevertheless, it makes a couple points quite relevant to Bar Overtimers and their overseers: 1) “Dabblers beware!” — lawyers who work with seniors and their families will need to be well-versed in “Family law, real estate, capacity issues, wills and estates – they’re all part of elder law practice and the lawyer doing this type of law needs to know about all of these and more to help the client make the right decisions on a number of issues.” Lawyers need to remember that “doing a will cannot be a loss leader” and “a lawyer needs to take the time to interview thoroughly, and then take the time to draft information thoroughly into the will. We must all become more diligent and detail-oriented.” 2) As a result, lawyer must “invest in CLE to keep abreast of legislative changes, new techniques, and precedent-setting cases that are redefining behaviour standards.”

Stephen P. Gallagher’s contribution to LawPro‘s Aging Boomers edition, “Winding down the law practice: Retirement as a renewal process” deals with the important (though touchy-feely) topic of retirement as a growth stage — “The transition we call retirement is actually the beginning of a new career/life stage called “renewal. The key to success in this renewal stage is how well a person prepares for it.” Gallagher stresses that “The renewal stage is a time when even ‘hardchargers’ re-evaluate how they live their lives.” It’s a stage in which you learn to pursue “your passion, your dream, your own goal, not someone else’s.” The article tells law firms that they must help in this retirement/renewal process — “which may take years to accomplish” — recommending the provision of pre-retirement coaching, as he did in the July 2004 Law Practice Today. (for a similar approach, see The Senior Lawyer Boom by Heather Bradley, CPCC, and Miriam Bamberger Grogan, CPCC, Minority Corporate Council Association Magazine, July 2006.) There is, however, little here that would help a firm deal with the lawyer whose skills are faded and may have stayed too long. Indeed, Gallagher even suggests firms might end up bringing older lawyers back to solve a leadership scarcity. He asks: “Could it be that the same senior partners that many firms are now looking to sunset may become the untapped resources firms will need to lead the talent pool of the future?”

ClosingYourPractice LawPro does point to a document that should be of great practical help in planning to wind down a law practice. It is the Guide to Closing your Law Practice, which was put together by the Law Society of Upper Canada and LawPro. The Introduction states:

“There are many circumstances in which you, or others, may have to deal with the transfer or wrap-up of your practice: a transfer between firms, retirement, sudden illness or accidental death. Leaving a law firm will have a greater impact on the solo or small firm where, unlike larger firms, there may be no one available to immediately carry on with, or to wind-up the practice in an orderly fashion.

don't forget “Your duty of competent representation includes an obligation to take appropriate steps to safeguard your clients’ interests in all circumstances. A failure to properly plan or prepare for both anticipated and unexpected departures from your practice may expose your clients to significant damages or prejudice, and subject law partners and family members to financial and delay your preparations. The time to plan for retirement is when you are in good health with sufficient time to allow you to thoroughly prepare. If possible, start planning 10 to 15 years before your anticipated retirement date.”

Each of the Guide’s 9 sections “provides a brief overview, a checklist, and references to precedents and articles relating to the topics covered.” The section titled Special Considerations, Illness, Disability or Death proclaims “Your duty of competent representation includes safeguarding client interests in the event of the lawyer’s death, disability, impairment, or incapacity. If you are a sole practitioner (or in a small firm), make arrangements for an assisting lawyer to step into your shoes.” Nonetheless, the focus is “preparing for the unexpected,” not preparing for or dealing with a slow decline that may precede by many years the definitive “illness, disability or death” that leaves no doubt that a lawyer’s practice is (or should be) over. Similarly, the New York Bar Association’s Planning Ahead Guide for Solos, which is 168 pages long, never uses a term more specific than “disability,” and never addresses who will, or how to, determine disability related to the solo’s aging body or mind. [Also, see Jim Calloway's Law Practice Tips piece, Indispensable People, for the Oklahoma Bar Association Management Assistance Program]

judgeAngry As best as I can tell, the only segment of the legal profession that has begun to take the issue of aging and fitness to practice seriously (by trying to act in a systematic manner to deal with the problems) has been the judiciary — led by the federal Ninth Circuit (and following the example of programs available in the California court system). Beyond their special responsibilities and very public scrutiny, a look at the demographics of the federal judiciary (who do not face mandatory retirement rules) helps to explain why it is at the forefront of the declining capabilities issue. As judicial “wellness” expert Richard Carlton explains in “Addressing disability and promoting wellness in the federal courts” (Judicature, Volume 90, Number 1 July-August 2006), “In subtle and some not so subtle ways, the federal judiciary has become increasingly dependent upon judges over age 65 to handle a rapidly growing caseload. As was reported in a Ninth Circuit task force report:

“… the judiciary needs these judges to continue working, because the number of authorized judicial officers has not kept pace with increasing case loads. There also are many judicial vacancies, some of which have existed for several years. Hence, unlike any other professional model that the task force could find, the federal judiciary encourages, and is dependent on, men and women over the age of 65 to handle its crushing caseloads. (Final Report of the Judicial Disability Task Force of the Ninth Circuit Judicial Council, May 2000)

“Few federal judges choose to retire when they become eligible, even though most would continue to receive their full salary. Instead, the majority take what is called “senior status…”

The Ninth Circuit’s report reviewed Article III judges eligible to resign in 1999. It found that fewer than 9% of the judges chose retirement, while 11.6% chose to retain active status (and full caseloads) and 79% took senior status (staying on the bench with reduced caseloads). The Ninth Circuit Task Force noted that

fjudge “As a consequence, the average age on the federal bench is nearing 70 and is considerably higher than in most state courts. This fact has a profound impact upon the frequency of age-related problems that arise in this population of judicial officers.”

The Ninth Circuit implemented many of the recommendations of the Task Force’s Report. As Carlton explains, “The Private Assistance Line Service (PALS) was launched in June 2001. PALS is a resource for immediate telephone consultation and for referrals when requested to local licensed therapists who have experience working with legal professionals. Calls are received via a toll-free number known to Ninth Circuit judges, their families, and chambers staff.” Although PALS provides assistance to judges suffering from a broad array of problems, “in practice much of the focus is on the special needs of senior judges”:

“Due to the particular demographics of the target population (described above), the most common concerns presented are related to aging . . . [T]he majority of calls have been from judges and court staff seeking advice about how best to approach a bench officer exhibiting signs of declining mental acuity due to age, depression, or other health problems.”

Clinical psychologist Isaiah M. Zimmerman describes some of the issues raised by an aging judiciary in Helping Judges in Distress, Judicature, Vol. 90, No. 1 (July-August 2006).

“Aging presents a new set of issues. Due to the gravity and responsibility of their work, mandatory retirement terms are in place in most jurisdictions, except in the federal courts.

When a sitting judge on active service begins to exhibit signs of cognitive or physical decline, it is quickly noted and guardedly discussed within the court family and bar. At the same time, ranks close around the judge, and there arises a great disinclination to question the judge’s capabilities. It is easier to help judges in senior status, as most face periodic re-certification.

However, an older full-time judge may suffer for a considerable period and operate marginally and in denial before help arrives. The federal circuits have issued guidelines for chief district and bankruptcy judges who may face this matter. A wellness-based judge-to-judge assistance program might help the spouse or family of the judge in question to obtain discreet medical and psychological guidance to deal with the massive denial and indignation often involved. The properly oriented presiding or chief judge can develop procedures for a graceful and dignified departure by a marginally functioning older judge.” [emphases added]

mountain village–
the old man doesn’t know
the dance

……… by Kobayashi Issa, translated by David G. Lanoue

tight rope Clearly, many of the issues raised by mental impairment among aging judges also exist generally for aging lawyers. It is particularly worrisome that aging judges so often put off retirement, despite their special responsibility to the public and the profession and their serving in the public eye. Also quite troubling is their postponing of retirement well past traditional retirement age, despite having ample pensions available to them — a financial safety-net not available to many lawyers. The American Judicature Society editorial A Fresh Look at Judicial Impairment (August 30, 2006) correctly states that courts need to ensure that disability and retirement benefits “are sufficient to allow judges to plan for and consider either partial or full retirement if the effects of aging or bad health make full service no longer the best choice for both the judge and the court.” Many lawyers working for government agencies and corporations, as well as a shrinking number practicing in large law firm, can count on adequate retirement benefits if mental acuity becames a serious issue in their practices. Who is going to ensure such options for Main Street lawyers?

my old age–
even facing a scarecrow
ashamed

……………….. by Kobayashi Issa, translated by David G. Lanoue

Noting that “public confidence in the judiciary is seriously undermined” when issues such as “declining mental acuity due to age” are ignored, the above-mentioned American Judicature Society editorial, A Fresh Look at Judicial Impairment, made additional points worth repeating: .

  1. [C]ourts should have in place resources that make it as simple as possible for judges to obtain help. Policies and practices should afford sympathetic support to a judge with an addiction or disability as long as the judge, too, acknowledges the necessity of finding a remedy.
  2. ProfPointerJudicial collegiality needs to be redefined so that looking the other way to avoid embarrassment or confrontation is no longer acceptable, and intervention is expected and encouraged. (emphasis added)
  3. Education about the availability of programs and information about other wellness issues needs to be provided in new judge education and regularly reiterated at judicial meetings in substantive sessions rather than just a five-minute reminder. Handbooks, websites, and newsletters can keep the issue from being pushed to the bottom of the agenda until the next headline. There should also be outreach to family members who may be struggling with how to obtain help for their judicial relative.
  4. pointerDudeNegS Judges with supervisory authority should receive intensive training about how to intervene after receiving complaints about a judge’s behavior,” and “Staff and attorneys need to be encouraged to bring their concerns to the appropriate authorities while a confidential solution is still possible rather than to cover up a judge’s behavior until there is a public scandal.
  5. . . . a culture change [is needed that will] remove any stigma attached to disability retirement.

cuckoo
what did you forget?
retracing steps

. . . by Kobayashi Issa, translated by David G. Lanoue

don't forget Clearly, we need to help judges and lawyers understand that they have a duty to resign, retire, or withdraw from practice, when physical and mental disability poses a significant threat to their competence and diligence, and to the adequate performance of their duties to clients.

[By the way, before you say "easy for him to say," please note that I have practiced what I preach: I gave up the practice of law ten years ago (two decades before normal retirement age and without even a flimsy financial safety-net), when chronic health problems made it unlikely that I could consistently or predictably give clients the level of diligence and timely competence they deserve in my solo practice.]

In addition, whether it is collegiality, compassion, or cowardice that keeps colleagues and staff from raising the issue of mental impairment at the bench or bar, we need to change the culture of the profession — including heightening the sense of professional obligation — so that the interests of the public/clients are paramount.

The recently-released “Breyer Report”, Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Hon. Stephen Breyer, Chair, Sept. 2006, 188 pp. pdf) states that approximately 7000 formal complaints are filed every year under the Judicial Conduct and Disability Act. In addition to complaints about judicial misconduct, the Act permits any person to allege conduct reflecting a judge’s inability to perform his or her duties because of “mental or physical disability.” The Report notes, however, that complaints “by court officials were especially rare, averaging only one per year.” Rather than use the formal complaint process, the judicial branch continues to use “activity outside the complaint process” as the primary mechanism for dealing with “difficult problems or judicial misconduct and disability.” Indeed, “The main problems that the informal efforts seek to address are decisional delay, mental and physical disability, and complaints about the judge’s temperament.”

blackCheckS Despite all their grousing and gossip in the Lawyers Lounge, attorneys virtually never complain, formally or informally, to court officials about impaired judges. (We may not condone that inaction, but we can all understand the reasons for it.) The Breyer Report wants lawyers to be more active in reporting such problems, and it recommends that: “Circuit councils should ask all courts in the circuit to encourage the formation of committees of local lawyers whose senior members can serve as intermediaries between individual lawyers and the formal complaint process.” Unfortunately, without a significant change in attitude, the recommendation will surely be ignored, as was a similar proposal by The 1993 Report of the National Commission on Judicial Discipline. Although the 1993 recommendation was also endorsed by the Judicial Conference, “few committees have been created” over the past 13 years. It seems lawyers and judges like the current omerta custom just fine — and, again, it’s easy to understand why.

podiumF In December 2003, in his column Ethically Speaking, Delaware lawyer Charles Slanina wrote about ABA Formal Ethics Opinion 03-429 and “a lawyer’s professional obligation when a colleague within the lawyer’s firm becomes impaired due to a problem such as substance abuse, mental illness or age-related dementia.” Slanina reminds the reader:

The [ABA Ethics] Committee noted that Model Rule 8.3(a) makes it an act of misconduct for a lawyer who knows that another lawyer has engaged in unethical conduct that raises a substantial question about the lawyer’s fitness to practice to fail to inform the appropriate disciplinary authority. They go on to conclude that the impaired lawyer’s failure to discontinue representation when suffering from an impairment that materially impairs his or her ability to practice (as required by Model Rule 1.16(a)(2)) could raise a substantial question about the lawyer’s fitness to practice.

Slanina’s summary of Opinion 03-429 continues with the admonition from the Opinion that

a lawyer may not shut his eyes to conduct reflecting generally recognized symptoms of impairment” such as ongoing memory or other inexplicable behavior not typical of the affected lawyer, including even a single aberrant act. On the other hand, the Committee said that a lawyer need not act on mere rumors or on problems observed outside of the practice of law such as heavy drinking as social events. In order for the reporting requirement to be triggered, “A lawyer must know that the condition is materially impairing the affected lawyer’s representation of clients.” (emphasis added)

The column then notes several suggestions by the Committee as to how a concerned lawyer may respond to such information:

  1. broach the subject with the impaired lawyer;
  2. consult with a mental health professional about what the attorney has observed or learned;
  3. talk to partners or supervising lawyers in the firm where the lawyer practices; or
  4. report the conduct to an approved Lawyers’ Assistance Program.

After touting Delaware’s “excellent Lawyers’ Assistance Program which stands ready, willing and able to assist you and an impaired lawyer,” Slanina reminds the reader that the relationship between a lawyer and the Lawyers’ Assistance Program Committee is the same as that of attorney and client and is, therefore, exempted from the normal Rule 8.3 reporting requirements. (see Model Rule 8.3(c))

Note: According to the American Bar Association Commission on Lawyer Assistance Programs “all fifty states have developed lawyer assistance programs or committees focused on quality of life issues. These programs employ the use of intervention, peer counseling, and referral to 12-Step Programs to assist in the lawyer’s recovery process.” Click for a Directory of State LAP Programs. (Canada has a similar legal profession assistance network.) However, whereas the PALS program discussed above for Ninth Circuit federal judges explicitly offers help for mental impairment issues relating to aging and is frequently used for that purpose, I have not found any information online suggesting that state or local LAPs are trained to deal with such aging issues or advertise the availability of such services. Please leave a comment or send an email if you are aware of LAPs that are working with impairments related to aging, rather than substance abuse or mental illness, with links to any relevant materials.

ProfPointerIn 1990, the ABA Adopted a Model Law Firm/Legal Department Personnel Impairment Policy and Guidelines (pdf – 28K). It was focused on assisting “lawyers and their support personnel who have impairments arising from emotional or behavioral problems and including drug and alcohol abuse and dependency.” Its guidance is also relevant in many instances to impairments relating to aging. For example:

“Sole practitioners may lack the resources available to law firms to establish programs for themselves and their administrative personnel, if any. Bar associations should explore the possibilities of establishing group programs for them.”

“The policy statement and guidelines also place responsibility for implementation at a high level, make clear that the policy is proactive rather than passive, and emphasize the importance of confidentiality.”

pointerDudeNegS “The Problem: Impairment of professional and administrative personnel contributes to the deterioration of their well-being. It also directly and adversely affects the ability of a law firm or legal department to provide quality legal services and can lead to exposure to unnecessary professional liability, to the violation of professional conduct standards, to loss of public esteem, and even to criminal law violations.”

“The purpose of this policy statement and guidelines is not to punish, degrade or embarrass impaired persons but to identify and assist them to recovery. The emphasis of the policy statement and guidelines is on assistance, treatment and the return of impaired persons to productive service.” [Ed. Note: Of course, returning to productive service may not be a feasible goal when aging is the cause of impairment.]

“A personnel impairment program should be structured to make self-referral the most used method of entering evaluation, treatment and rehabilitation programs, but procedures for identification and early intervention by the entity and third-party referrals to LAPs and EAPs are equally important. The availability of these services and resources should be widely publicized (for example, in the entity’s newsletter and in new personnel orientations) and listed in the entity’s telephone directory.”

tight rope An article from Bench & Bar of Minnesota,Ethical Responsibilities for an Impaired Partner” (October 2003), by Kenneth L. Jorgensen, Director, Minnesota Office of Lawyers Professional Responsibility, does a very good job explaining the obligations of firm members when a partner is impaired — due to substance abuse, mental or emotional impairments, or “the mental decline or deterioration associated with aging that can reach the level of impairment before a lawyer retires.” Jorgensen makes an apt observation:

“Most law firms recognize the civil liability exposure associated with impaired members of their firm who are unable to properly discharge responsibilities to clients. Apart from malpractice judgments, law firms can suffer loss of clientele and goodwill due to the grumbling of disserved clients. Probably fewer lawyers comprehend the extent of their ethical obligations for an impaired partner or other lawyer employed by the firm.”

Jorgensen’s article gives a nice summary of the obligations of partners embodied in ABA Formal Ethics Opinion 03-429 — to both (1) adopt measures to prevent impaired lawyers from violating the ethics rules; and (2) report ethical violations committed by impaired lawyers in the firm. He warns of The Ostrich Phenomenon, which was described by Patricia Sue Heil, in “Tending the Bar in Texas: Alcoholism as a Mitigating Factor in Attorney Discipline” (24 St. Mary’s L.J. 1263, 1278-79 (1993). Heil contends that despite the fact our profession is self-regulating:

“most lawyers are reluctant to report incompetent or impaired work. Instead, impaired attorneys are frequently protected or enabled by their colleagues and staff, which in turn fosters opportunities for misconduct and unethical behavior.”

Jorgensen notes that: “This type of ‘enabling’ behavior is sometimes motivated by misguided concern for the impaired lawyer.” Other firm members “rationalize their inaction by characterizing impairment as a personal problem not appropriate for law firm involvement” or simply are “too emotionally uncomfortable” to bring up the matter. He also explains that impairment is not itself an ethical violation. Instead, “The threshold issue is determining whether the impaired lawyer’s ability to represent clients is ‘materially impaired’.” Jorgensen continues:

podiumF “A pattern of missed filings or hearings, frequent unexplained absences, or multiple instances of neglect and noncommunication caused by a lawyer’s continuing impairment clearly meet this standard and require firm action.”

And, when an impairment oscillates over time, “the ABA suggests that if the impairment has ‘an appreciable likelihood of recurring,’ partners may have no choice but to conclude that representation of clients will be materially impaired.” Where the impaired lawyer is unable or unwilling to address the impairment, “partners are obligated to take steps to ‘assure the impaired lawyer’s compliance with the Rules of Professional Conduct.’ Where possible, partners may wish to consult with a psychologist, psychiatrist, or other trained health professional.”

The article acknowledges that “Confronting an impaired partner is the first and most difficult step in protecting client interests,” and covers several practical issues. One additional important topic discussed by Jorgensen is accommodation of the impairments:

“Depending upon the severity of the impairment, some impairments may be accommodated. Accommodations may include reassigning the lawyer to a less pressured environment or changing the type of legal work (e.g., from litigation to transactional representations). Where the impairment is so severe as to preclude accommodation by the firm and the lawyer’s ability to represent clients is materially impaired, the firm is obligated to institute measures to prevent the lawyer from rendering legal services to firm clients.”

weak with age–
can’t even break kindling
with my knee

……… by Kobayashi Issa, translated by David G. Lanoue

For a look at lawyer impairment from the risk-management perspective, check out “Managing Your Practice: Lawyer impairment should not be overlooked,” by Emily Eichenhorn (Oregon State Bar Bulletin, July 2003). She notes that firms often aren’t aware of impairment issues until they create a major problem. The following two points are among her suggestions to avoid being unhappily surprised:

“Periodic peer review of legal services, as well as regular review of lawyers’ progress toward marketing goals, billing and recovery goals or other standards, are processes that can promote interaction among lawyers in a firm and raise the likelihood that impairment will be discovered and effectively addressed.”

“Sole practitioners can look to share office space or participate in professional organizations to maintain contact with other professionals and build a base of support.”

CertainJusticeJames In January 1999, the WSBA BarNews contained a thoughtful and useful article by Zella Ozretich, of the Washington State Bar Association Lawyer Services Department — “Make a New Year’s Resolution to Plan for Retirement.” Ozretich recommends that:

“Lawyers should resolve to take time to think about retirement planning for themselves and/or for older lawyers in their firm. Is there a plan in place through the firm which will help ease the transition for those who are near retirement age? Does each individual have a plan that includes both the financial and personal implications of retirement?”

Ozretich correctly notes, “This is a difficult topic to broach with others, particularly if an older lawyer does not see the need to make adjustments in his or her duties or to retire.” She offers the following advice for When a Lawyer is not Willing to Retire:

“Under certain circumstances, a lawyer may not be ready or willing to retire. The reluctance to retire may be due to lack of financial preparation, or personal connection to the profession as the person’s sole identity. If this situation arises, then the firm or others concerned for the individual lawyer and his or her practice may need to intervene. For the lawyer unable to function in the legal milieu because of age-related mental or physical impairment, the issue becomes one of how much accommodation and/or support the legal setting can offer before the client, the firm and the lawyer are put at risk.

“The firm must then ask how skilled at evaluating the situation are those in positions of authority; how comfortable are the firm members in initiating some sort of intervention; who, what, and where are the resources for the firm when assistance is needed. Like any type of intervention, intervention leading towards retirement should address specifics and include respect for the aging colleague’s abilities.”

The article has a helpful sets of “Compassionate Intervention Guidelines” and discusses how to “proceed with an intervention:

“Treat the person with dignity. Be kind without being condescending. Avoid being confrontational. Talk about the problem as it presents itself now. Plan to address the issue over a period of time. Be specific. Talk about the events and situations you have observed. Talk about the impact of the lawyer’s behavior on those people and things he or she values. Avoid using medical terms. Focus on the behavior.”

Ozretich also notes that “Lack of planning and the assumption by firms and/or individuals that every lawyer can work in the same capacity indefinitely can contribute to the painful necessity for intervention.” She then discusses potential obstacles to taking the needed steps required by a lawyer’s impairment (a firm’s organizational structure or various contractual obligations; discrimination laws, etc.), and suggests a firm “Consider amending any documents now to avoid problems or confusion in the future,” while remembering that such internal organization issues cannot be allowed to prevent necessary action when impairment is causing or likely to cause damage to the lawyer or others.

NoYabutsT You may recall my warning above that this essay would offer no definitive answers for treating the ethical issues that arise from the physical and mental impairments that will surely come with the Graying of the Bar. One point should, however, be perfectly clear: each lawyer, every firm, and the profession as a whole, has the ongoing obligation to help prevent unethical performance due to the diminished capacities that so often come with aging. No profession-wide ethical peridementia can excuse the failure to protect our clients from our frailties.

checkedBoxSImportant Request for Follow-up (March 26, 2007): If you agree that this topic deserves more discussion and the focused attention of bar leaders, law firms, and individual lawyers, please let your local, state and national bar groups know you would like to see Ethics and the Graying of the Bar on the agenda of Continuing Legal Education programs (on professional responsibility, office management, retirement planning, etc.), and to see Aging-Competence Intervention actively incorporated into Lawyer Assistance Programs. Click for contact information for: state and local bar associations; the ABA Center for Continuing Legal Education – ABA-CLE, the ABA Commission on Lawyer Assistance Programs; and State LAP committees.

a migrating servant
laid off
at age sixty

……… by Kobayashi Issa, translated by David G. Lanoue

SayItToSeniorsL Afterward: There is a lot of wisdom in David Solie‘s book How To Say It to Seniors: Closing the Communication Gap with Our Elders. (Prentice Hall Press, 2004)  Dealing with seniors in general, it offers insight and practical guidance for those who are interested in constructing and implementing respectful and effective ways to help older lawyers transition out of the practice of law, or out of segments of practice in which they are no longer adequately competent. Solie’s book helps us to understand “our senior adults’ unique developmental agendas:” their need to maintain control and search for a legacy (that is, how they will be remembered); to “learn to communicate effectively and effortlessly” with aging family members, friends, colleagues, and clients; and to become advocates for our elders.

follow-upHealth and Age had a series of excerpts online from How to Say It to Seniors, but they are no longer at the website.  You can see extensive excerpts from the book at its Google Books page. Also, go to David Solie’s website and weblog.

One important chapter in Solie’s book is titled The Myth of Diminished Capacity. Solie discusses studies, including work by Richard Restak, M.D. that show:

SayItToSeniors “[T]he brain of an older person does show some changes in the prefrontal cortex, its prime platform for working memory capacity and the area rsponsible for processing new information. But all the other brain activities, including IQ and the capacity for verbal expression, language, and abstract thinking, remain gloriously intact. Yes, the body does wear out and slow down — that’s a reality of aging. And because of these changes in the prefrontal cortex, the aging brain loses some ot ifs ability to perform multiple mental manipulations. As a result, the external world may begin to fade, distraction set in, and focus becomes compromised. But the slowing of these mental processes enhances the ability to reflect and make informed judgments. . . . “. . . The body’s aging forces us to stop the frenetic pace of our youth and middle age, and begin to search for the pattern of what’s happening in our lives. In doing so, we naturally turn from the external world, with its pagers and cell phones and instant messaging, and focus on our internal world to begin a lengthy life review. [you can find excerpts from this chapter at Health and Age, Dec. 22, 2004]

Although Solie strongly argues that diminished capacity is a myth, it seems clear from his own words that some mental functions important to lawyering are indeed lessened with age. Our capacities change and in many ways for the better. Nonetheless, the obligation of each lawyer — or of those around him or her — is to acknowledge the changes and act to assure that clients receive the competent and diligent services to which they are entitled.

early Alzheimer’s
she says she’ll have . . .
the usual

………………… by John Stevenson from Quiet Enough

dagIcon thank-full postscript: (March 25, 2007) Even when under the spell of peridementia, I hope I’ll never forget Mama G’s rule about being humble and grateful when someone says something nice about my work. Tonight, I want to thank Diana Skaggs, at the [KY] Divorce Law Journal, for her generous write-up on this post in Blawg Review #101 — and, especially, for sharing the most kind words of Prof. Alan Childress, who had the best reaction I could have desired from a professor of Professional Responsibility: “It will be required reading for every legal ethics class I teach.” [Hey Bar Leaders, CLE classes could use a lot of exposure to this topic, too.] Alan was also the first weblogger to point to this essay, in a post at the Legal Profession Blog. Legal Blog Watch‘s Carolyn Elefant and Idealawg‘s Stephanie Allen West have also pointed here, with very positive words, and I’ve emailed them with my thanks. I’d tell you what they said, but I’m supposed to stay humble. Stroking is nice, of course, but knowing that more people will be reading and thinking about this important topic is even better. update (March 28, 2007): thanks to Evan Schaeffer for pointing here from his Legal Underground; and special thanks to Tim Kevan for putting this post this week at the top of the very selective “best of the blogs” section of the Barrister Blog‘s Weekly Review. update (April 2, 2007): Many thanks to George Wallace of Declarations & Exclusions for breaking Blawg Review custom and including this essay a second time, in Blawg Review #102.

update (April 4, 2007): Special thanks, as expressed at length here, to Jim Calloway, for the most grudging recommentation yet.

follow-up: See “Growing Old Together” by Martin A. Cole, Director Minnesota Office of Lawyers Professional Responsibility, reprinted from Bench & Bar of Minnesota, April 2008, which raises important issues but offers little guidance.

update (July 7, 2008): See our post “TCL asks “What’s Your Exit Strategy?”;

spring begins
as it has deigned to do
for a thousand ages

……… by Kobayashi Issa, translated by David G. Lanoue

12 Comments

  1. [...] Having a Scooter Moment. Published March 21st, 2007 Uncategorized No more of “having a senior moment.”  I am now officially having a Scooter moment, like f/k/a suggests.  And he has a nice haiku. [...]

    Comment by Having a Scooter Moment. « Going Like Sixty — March 21, 2007 @ 10:24 am

  2. David,
    This is an extraordinary piece of work. I highlighted it over at Legal Blogwatch, but people will have to read this in its entirety to do it justice.

    Carolyn

    Comment by Carolyn Elefant — March 22, 2007 @ 1:47 am

  3. David – Thanks for an amazing resource! I have had two experiences with what I’d call very senior lawyers:
    1) A litigation matter vs. a very senior lawyer who by all accounts should no longer practice. He clearly got a lot of satisfaction out of counseling his clients, but clearly did not appreciate modern civil procedure (i.e., the rules).

    2) A litigation matter in front of a senior judge (federal). Sharp as a tack. Way better than most of his peers. There really wasn’t even the physical decline! Although he was quite old, he was clearly still in his prime. As older judges often do (and really have the right to), he had his pet peeves, but was very funny about making them known.

    I’d hate to see that judge (senior status, but very active) be pushed out merely because of his age.

    I also don’t know if reporting impairment due to age is really always the most ethical solution. In my case, as opposing counsel, should I have approached him, told him he was too old, and then reported him as impaired due to age-related issues? (That’s really what it boils down to) I really thought that best left to someone else. I was patient, not mean or aggressive, and really thought if the judge thought there was a problem, he’d have words with counsel. In my opinion, not interfering was probably the most ethical action I could have taken.

    Comment by Guess I'll be anonymous — March 25, 2007 @ 12:51 pm

  4. Hello, Guess: Thanks for taking the time to tell us your experiences and raise some good questions. Two quick responses:

    (1) If we do not have some kind of mandatory retirement age for judges, we surely need a fair, frequent and effective certification system for judges past a certain age — one not fueled by “politcal” motives or bureaucratic favoritism, or stymied by the power of a particular judge. How likely is it that such a system could be achieved?

    Mandatory retirement rules clearly have advantages and disadvantages, but our society has to decide whether the pluses are worth the chance of losing talented judges. It is hard for me to believe that any individual judge (or partner, or CEO, or employee) — no matter how bright and wise — is irreplaceable.

    (2) “Interventions” with Overtimers would preferably be done initially by those who know him or her well, and done informally at first. If no one steps up to fill that role, we need well-publicized Lawyer and Jurist Assistance Programs that would step in. A lawyer who has firsthand knowledge that another member of the bar is no longer capable of being consistently competent could then call the local LAP and turn the matter over to a well-trained, sympathetic LAP volunteer or staffer. LAP would have to be willing to follow-up if they concur that the lawyer’s fitness is questionable, and make referrals to the appropriate grievance committee.

    I wouldn’t want to rely on judges to start the LAP or complaint process, or to take a no-longer-fit lawyer aside. And, I’m not sure — if the person you have described is clearly not fit to practice — that “not interfering” could be thought of as the “most ethical” response from a lawyer who sees the unfitness demonstrated firsthand. Too often, “most polite” or “least awkward” is confused with “most ethical” by colleagues who don’t want to make the hard choices that a self-regulating profession requires.

    Comment by David Giacalone — March 25, 2007 @ 3:44 pm

  5. [...] There has been an interesting discussion about the issues related to the aging of the legal profession. Stephanie introduced us to the article "the Graying Bar: let’s not forget the ethics" by David Giacalone. [...]

    Comment by » Baby Boomers, Healthy Aging and Job Performance   « Brain Fitness Revolution at SharpBrains      — March 25, 2007 @ 10:44 pm

  6. 1) he could just be a BAD lawyer, which has nothing to do with oldness, which I see every single day (especially in my field). should i report all the lawyers i encounter that shouldn’t be representing their clients because of their lack of knowledge of the field/forum? is it my job to police the entire profession? i don’t think bar counsel would like that. i will also note that oldtimer withdrew, which the judge allowed, right before i “argued” a dispositive motion. in this case it really didn’t matter because there was no jurisdiction.

    2) if we’re going to have mandatory retirement for judges, why not for lawyers? 56 years sure is a long time to practice law.

    Comment by Anon above — March 26, 2007 @ 3:22 am

  7. Guess/Anon, you have again raised dificult issues, but their difficulty does not mean we can ignore them. As I say in the posting, I have no definitive answers on how to do this, but it is clear that we lawyers do have obligations we cannot ignore, even while we figure out the contours of those obligations.

    Your statement “it really didn’t matter because there was no jurisdiction” is interesting. If a competent lawyer would have never brought this case because of the jurisdiction issue (or would have withdrawn sooner), then Overtimer’s client was hurt, as was your client (assuming you don’t work for free), and the court system, which had to expend resources.

    Comment by David Giacalone — March 26, 2007 @ 7:54 am

  8. Ok, I was writing way early in the morning. Of course it mattered. It did not matter to the disposition of the case. It mattered certainly to my clients, who had to expend valuable resources to defend the action.

    Comment by Guess I'll be anonymous — March 26, 2007 @ 11:25 am

  9. Graying bar matters: More attention, please…

    I do not want to let the attention fade from this critical topic of the shifting demographics of the legal profession and the implications for all concerned — including the graying lawyers, their firms, and their clients. The attention may in fact be …

    Comment by idealawg — March 26, 2007 @ 3:30 pm

  10. Thanks for accumulating this material. My better half is a neuropsychologist who deals in assessment for a wide range of professionals. Part of her practice involves psychological assessment of cognitive abilities for doctors. Think about it – do you really want an impaired doc cutting you open? Lawyers are not given to thinking of their actions as life and death to the same degree, but as the law of large numbers predicts, a whole lot of clients are going to be hurt by cognitive impairment in the same fashion as alcohol and substance abuse as the bar marches in step with Father Time.

    Perhaps the hardest aspect of this for many boomer attorneys is the simple act of acknowledging the home stretch of a career. The general population barely understands that dementia is an organic illness. Willpower is not enough to overcome it. A pill doesn’t fix it. There are different kinds of dementia, which affect different parts of the brain and thus invoke different behaviors and deficiencies. It is difficult to generalize about them, and each individual will have their own unique presentation. Most functional decline can be arrested, but not reversed. If you think of the brain as a neural network, a web of interconnected nerves tying your thoughts and memory together, some dementias cut the threads of the web until they lose their ability to retain anything. Some dementias prevent the making of new memories, but leave long term memory undisturbed. Some affect language centers in the brain.

    Any one of these could be viewed as the kiss of death for those blessed in the art of communications, logic, and argument. The truth is, indeed, difficult to bear. But, as a profession, it is incumbent upon us to design the best set of professional rules, guidelines, and assistance for the impaired that we can, buttressed with an ethical viewpoint of enlightened self-interest among the members of the bar itself.

    I’m 38. This is going to be my generation’s issue to manage for the next twenty years. My colleagues and I will be next in line to handle the fallout of this demographic phenomenon. I agree with the comments above that this issue needs dramatically more attention, and sooner rather than later. By reaching out for help among a different type of psychological professionals – neuropsychologists – we can learn a lot about what to expect from our brothers and sisters of the bar as they age. We can do what is necessary to build and extend LAP services across the country to incorporate dementia and age-related cognitive decline.

    This issue is upon us now.

    Comment by Brad Patrick — March 26, 2007 @ 9:54 pm

  11. Oh, and another thought about the examples above concerning who should be doing the reporting. Unlike substance or alcohol cases where the “intervention” is met with denial melting into acceptance and rehabilitation, in cognitive cases very often it is *precisely* the individuals’ inability to notice in themselves the problems caused by their decline that prevent them from taking action beforehand. Often, it is too late.

    In this situation, I agree taking Senior Opposing Counsel aside and telling him to punch his bar card is not the best solution. Speaking with colleagues at his firm, however, is entirely within bounds, in my view. As a matter of collegiality and respect within the bar itself, the issue should not be avoided in the hopes someone else will address it. It needs attention now. It may be that the gentle coaxing of his partners will encourage him to remain friendly with clients and keep within the confines of the office and avoid the minefield of the courtroom. There is a nice presentation at http://www.abanet.org/media/youraba/documents/attorney_impairment.PPTwhich rehearses why these concerns are legitimately beyond any individual’s ability to handle. “I took a year of tax law 25 years ago, and if someone hands me a tax case I immediately turn it over to a specialist. Why on earth would I think I could handle something like this internally?” That’s the idea. There are specialists who can give you the information you need to help find a solution for Mr. Partner.

    If it were you, who would you want to have break the news?

    Comment by Brad Patrick — March 26, 2007 @ 10:09 pm

  12. Brad, Thank you very much for two thoughtful Comments. We have a lot to learn from other disciplines, while the legal profession evolves policies and tactics of realistic compassion (compassionate realism?).

    Comment by David Giacalone — March 27, 2007 @ 12:02 am

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