Ageism Is Not The Answer

It has become a maxim that there are too many lawyers and that there is ongoing softness in demand for legal services.

Parenthetically, I disagree. There is in fact a dislocation between the supply and the demand for specific legal services, which the organized bar has never been able to address successfully.

But assuming, for the moment, that there is an oversupply of lawyers, what is the best way to deal with this? Of course, get rid of some of the lawyers. The question is, how?

Making admission to the organized bar more difficult and expensive is one solution, and the laws of economics seem to be handling it quite well. For the 2013 academic year, law school admissions were headed for a 30-year low, a decline driven by student worries about rising tuition, debt load and unemployment after graduation. Potential law students increasingly understand that today it is a fool's gamble to spend many thousands of dollars in the hope of getting a well-paying job at the end of three years, and as they pursue other careers the legal profession will shrink.

Demographics present another way to reduce the supply of lawyers. There are more than 1.2 million lawyers in the United States, at least half of them sole practitioners and some 400,000 poised to retire by the year 2020. To suggest that this latter group should be treated differently from any other group in the organized bar would create allegations of ageism and prohibited discrimination.

However, a metric that is applicable to all lawyers, such as "competence in professional skills," is safer ground. Of course, if this metric also achieves the basic goal of reducing the number of lawyers, by implying that older lawyers are less competent to serve clients, so much the better.

The problem with this metric is that it is never applied uniformly. If we look at new lawyers, those who have been admitted to practice for three years or less, there will undoubtedly be many who are not "competent," despite the fact that they have passed the bar exam. What is the competence metric for "older" lawyers? Do they have to pass another bar exam? If yes why should age be the factor that determines whether they have to take a new examination? If not, what might it be?

There is no examination at anywhere in the time spectrum of a lawyer's career that requires such an examination.

It is the rare lawyer who has not thought at some point, "My opponent is not very good." Often this is another way of saying, "My opponent doesn't seem very competent." This is impressionistic only, but to be valid it must be applied throughout the entire career life cycle.

It is not accurate to automatically assume that older lawyers are more careless, have too many distractions and make too many errors leading to discipline. Young lawyers are closer to the teaching of the rules of professional conduct than are the older lawyers.

But, with MCLE requirements, even the older lawyers generally keep their skills up. Regardless of lawyers' ages, the majority of the complaints against the profession relate to careless dealings with clients.

The real focus should be on meeting the needs of clients who are not served or under-served by the current imbalance in legal disciplines. Making sure that all lawyers, young and old alike, are "competent" in the skills clients want is the best way to restore market balance, without the appearance of ageism.