Drowned out by the frequent complaints about Millennials is a more pressing generational problem facing the legal profession: how to handle the increasing number of Baby Boomer lawyers staying on the job beyond the traditional retirement age. The legal community is fortunate to have many of these experienced, talented lawyers continuing to serve their clients, and mandatory retirement policies tend to waste that talent. The problem arises when an attorney can no longer competently serve his clients due to mild cognitive impairment or other health issues that disproportionately impact older individuals.
Why Are Baby Boomers Lawyers Staying On The Job Longer?
So what’s causing lawyers to hang around longer? Increased life expectancy, improved health care, recession-exacerbated financial need and a desire to stay active all contribute. But longer careers mean greater risks of health complications which can affect firms and clients, particularly for solo and small-firm practitioners.
However, when cognitive impairment affects lawyers, monetary, ethical and moral concerns come into play for colleagues and their firms. Cognitive impairment can create incompetency, including a lack of diligence or legal errors that can ultimately lead to missed deadlines, malpractice claims and increased professional liability insurance premiums. Ethically, Rule 5.1 of the Model Rules of Professional Conduct requires lawyers within the same firm and of equal or superior status to be responsible for any foreseeable ethical violations of other lawyers in that firm. Moreover, Rule 8.3 holds lawyers accountable for failing to report certain misconduct of other lawyers. Finally, it’s just the right thing to do — for the firm, the clients and the senior lawyer.
Without a doubt, almost everyone wants to see their colleagues, friends and family members end their careers successfully, with dignity, and on their own terms. As we age, we hope much the same for ourselves. No one wants to see senior attorneys forced out of a job, much less because of disciplinary proceedings. And we all know that lawyers can be a proud, stubborn and independent lot. Approaching a colleague who is slipping is a difficult, sensitive matter and warrants some careful planning.
Here are some tips, offered by a panel at the 40th ABA National Conference on Professional Responsibility on May 29-30 during the program “Shades of Gray: Challenges Related to Aging Lawyers,” on what to do if you suspect a colleague is struggling:
1. Educate Yourself.
Though mild cognitive impairment can transcend age barriers, dementia does not typically appear until age 60, and, starting at 65, the risk of its development doubles every five years. An April 2014 report spearheaded by the National Association of Bar Counsel predicted that, given current trends, more than 50% of practicing lawyers will be older than 50 within the next few years. The more lawyers know about the signs of mild cognitive impairment and other health issues that disproportionately affect seniors, the more they can do to handle these situations professionally and in a manner that will reduce risks to clients. Education is available through a number of platforms: Several states, including Indiana and New Mexico, have produced instructional videos that show how to spot mild cognitive impairment and how to deal with these issues while according the respect these accomplished attorneys deserve; Florida has endorsed a confidential, online assessment form created by Ohio State University that allows self- or peer-analysis of symptoms. The ABA provides an expansive list of client protection information and offers a comprehensive look at the nation’s lawyers’ assistance programs. Additionally, websites, hotlines and CLE programs nationwide are available for those interested in learning more.
2. Approach the Subject Respectfully.
If you were having personally unrecognized health difficulties late in your career, how would you want to be approached? A report to the state’s disciplinary body could lead to public disciplinary action, when a kinder and gentler approach would achieve the same end. Approaching the lawyer on a personal level is the better option, or enlisting the assistance of a Lawyers’ Assistance Program that guarantees confidentiality. Most of us would want this subject handled within a space of mutual respect. Consider asking a judge, family member or esteemed colleague to broach the subject and open a dialogue about how the individual wants to and should proceed.
3. Utilize LAP Resources.
Lawyers Assistance Programs exist in most states, and can help you develop strategies around what to say to a struggling colleague. Some programs also have intervention guides that illustrate how a lawyer can come to terms with mild cognitive impairment with dignity; for example, suggesting that interventions include at least one judge and be conducted in a judge’s chambers. Some programs help monitor an individual’s treatment and progress throughout the process. Though Illinois’ Lawyers’ Assistance Program (LAP) originally focused its attention on alcohol and drug dependency, they have since developed programs for mild cognitive impairment and provide help on an individualized basis, according to Robin Belleau, executive director of the Illinois Lawyers’ Assistance Program.
4. Have a Plan.
The ABA panel recommended early planning for all firms and all lawyers. Even if you or your colleagues are not currently touched by these issues, all lawyers should make sure firm policies and procedures are in place before problems arise. Firms should consider implementing a policy of regular medical exams and guidelines for how succession decisions are made. Individuals should also create a written succession plan for their personal practices that addresses everything from computer passwords to docketing to where client files are stored. An up-to-date succession plan is of vital importance, particularly for solo practitioners, because it provides security to the attorney and her clients that the clients will be represented if something unforeseen occurs.
Obviously, these issues are complex. On the bright side, a number of state bars are forging creative solutions to allow senior lawyers to continue contributing. Some options include:
mentoring junior lawyers while transitioning into retirement, and ultimately transferring a practice (North Carolina, New Mexico, Ohio and Arizona all have matching programs that pair older solo practitioners with younger lawyers to train them and often provide them with the opportunity to transition into purchasing the practice)
mentoring law and pre-law students
doing pro bono work independently or through legal services organizations. (Illinois Supreme Court Rules 716 and 756, added last year, created a method for retired Illinois attorneys to practice pro bono)
participating in state bars’ senior lawyers divisions
volunteering in high schools
teaching at community colleges
We’d all love to end our careers on a high note, and many of us will have the opportunity to help a remarkable colleague do just that. By planning ahead for ourselves and helping create that opportunity for others, we can continue to foster a community mindset in the legal profession while fulfilling our professional and ethical obligations.
John Edwards, our intern from Loyola Law School, contributed to this post.