GROWING OLD TOGETHER
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (April
2008)
Several
years ago, Webster’s New World Collegiate Dictionary named “senior moment” as its Word of the Year, defining the term as meaning a
momentary lapse in memory, particularly
one experienced by a senior citizen. I’ve now
reached the age where I no longer find that
quite as amusing as I once might have. The
legal profession also has reached a stage where “senior moments” are increasingly likely
to occur for many of its members. Collectively, lawyers are growing old
together.
The
overall number of lawyers in Minnesota and the United States continues to
increase, as more lawyers enter the profession each year than leave. So the average (mean) age of lawyers is
probably going down, not up. But on the
other end of the aging spectrum, more and more lawyers are practicing longer
and longer without retiring or scaling back their practices. Therein lie a host of potential problems for
individual lawyers, law firms, the profession as a whole and for protection of
the public¾the stated
purpose of a lawyer discipline system.Ftn 1
Reasons
that lawyers are remaining in practice longer include the obvious health care
improvements that have enabled more people, and not just lawyers, to remain
healthy and active far longer than ever.
Thus, many aging lawyers remain highly competent practitioners who ably
represent clients and continue to make valuable contributions to the law and
society. Less positively, economic
factors such as limited retirement funds worry some lawyers into continuing to
practice, even if they would prefer to retire.
As noted, the focus of the lawyer discipline system first must be protecting the public from lawyers who violate the Rules of Professional Conduct. Unfortunately, not all of the aging lawyers who remain in practice are equally capable of doing so. Rule 1.16(a)(2) of the Minnesota Rule of Professional Conduct offers one clear measure of when that capability should be questioned. The rule states that a lawyer shall not represent a client, or shall withdraw if representation has already commenced, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. From a societal perspective, the issue becomes balancing the need to protect the public from a few aging lawyers who are no longer able to practice effectively, at least on their own, while trying to allow such lawyers to end their careers with dignity. This balance is not always an easy one to strike.
Recognizing a Problem
In
recent years, the Director’s Office has received a small number of reports about lawyers who may be suffering from the
early stages of Alzheimer’s disease or dementia.
They have gone well beyond the occasional
“senior moment” and have started to miss appointments
and court dates, misplace client files
and property, or repeat tasks they have already performed. In one such instance, family members could
not bring themselves to confront the individual in an effort to get the lawyer
to cease practicing. No doubt this can
be a difficult decision and task to perform tactfully. The alternative, however, may be even more unfortunate
when the lawyer is unable to recognize his own diminished ability. Here, it was left to the disciplinary system
to deal with the matter based upon complaints and by seeking to impose
discipline.Ftn 2 The attorney eventually agreed to retire as
part of a stipulated disposition, but only after some acrimonious discussions.
More
satisfying and humane is if family, friends, support staff or other lawyers in
the firm or in the community take notice of an aging lawyer’s early signs of failing and intervene to help the
lawyer transition to a reduced practice or retirement, before disciplinary
measures are necessary. Partners in a
law firm, for example, are obligated to report known violations of the Rules of
Professional Conduct by another member of the firm that raise a substantial
question as to that lawyer’s fitness. Early
intervention may permit the firm to closely
monitor the lawyer’s ability to continue practicing before such instances of misconduct occur and thereby eliminate the risk of
future rule violations, thus preventing disciplinary reporting.Ftn 3
An
important issue facing the aging lawyer population is what is often called “successor
planning.” This column has previously
addressed related issues such as creating
an office manual of practices and document locations, identifying a successor
attorney who has agreed to handle certain client matters and is willing to
assist in transferring files to other attorneys or to return them to clients,
and the selling of the physical assets of a law practice. We have also addressed the obligations of
lawyers in a firm with an impaired partner.Ftn 4 Lawyers of all ages, especially solo practitioners, should
make appropriate contingency plans for their law practices so that clients are
not substantially harmed by a lawyer’s sudden death or disability. Senior
lawyers especially should not put off successor planning any longer.
Resources Available
There
are resources within the legal profession to assist aging lawyers or those
concerned with the risk of an aging lawyer’s performance. For example, the American Bar Association has a Senior
Lawyers Division that can act as an information resource. More locally, malpractice insurers, such as
Minnesota Lawyers Mutual, can be an excellent resource that lawyers may turn to
for help with successor planning procedures.
Lawyer assistance programs, or LAPs, deal with individuals with chemical
issues or mental health issues such as depression, both of which can affect
senior lawyers. They also have
information available to assist aging lawyers or those concerned about them.
While the MSBA has a New Lawyers Section and an Elder Law Section, it no longer has a section aimed specifically at senior lawyers as it once did. Elder law deals with lawyers assisting elder clients, but its members are not necessarily elderly themselves. Perhaps this is an area into which the state bar association ought to consider expanding its services, for as noted, there is a growing population of aging attorneys and the corresponding need for such resources will only increase in the near future. Even if the interest to sustain a separate senior lawyer section is not yet sufficient, recruiting senior lawyers for special projects, especially mentoring or pro bono projects, is an excellent option. Continuing Legal Education providers should consider dedicating more seminars to the topic as well. In the meantime, the MSBA’s Life and the Law Committee addresses this issue as part of its mission to discuss career satisfaction, mental and chemical health, balance, and other quality of life issues.
Notes
1 Several
organizations have started studying this issue and its effects. For example, in May 2007 the National
Organization of Bar Counsel (NOBC) and Association of Professional
Responsibility Lawyers (APRL) issued a Joint Committee Report on Aging Lawyers. A copy can be downloaded from
www.aprl.net/pdf/NOBC-APRL.pdf. For additional information, see The Complete Lawyer, which dedicated an
issue to a Focus on the Graying of Lawyers,
www.thecompletelawyer.com/volume3/issue4/index.php.
3 See ABA Formal Ethics Opinion 03-429
(2003).
4 Betty Shaw, “Winding Down, Closing Up or Selling Out,” 61 Bench &
Bar of Minnesota 10 (Nov. 2004), p. 12 (www2.mnbar.org/benchandbar/2004/nov04/prof_response.htm); Ken
Jorgensen, “Ethical
Responsibilities for an Impaired Partner,” 60 Bench
& Bar of Minnesota 9 (Oct. 2003), p. 12 (www2.mnbar.org/benchandbar/2003/oct03/prof-resp.htm).