Ageism Not The Remedy to Attorney Overpopulation

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.)

Assuming for the moment that there is an oversupply of lawyers, what is the best way to deal with it?

Get rid of some of the lawyers, of course. But 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 career alternatives, the legal profession will shrink.

Demographics present another way to reduce the supply of attorneys. There are more than 1.2 million lawyers in the U.S. — at least half of them solo practitioners — and some 400,000 poised to retire by the year 2020.

To suggest that soon-to-be-retired lawyers should be treated differently from any other group in the organized bar would constitute ageism and discrimination. A metric that is applicable to all lawyers, such as "competence in professional skills," is safer ground.

Of course, if the metric achieves the basic goal of reducing the number of less-competent lawyers — even if they are older lawyers — so be it.

The problem with the metric is that it is never applied uniformly. If we look at those who have been admitted to practice for three years or less, there undoubtedly will 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, should age be the determining factor as to whether they have to take a new examination? If not, what might it be?

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

It is folly to assume that older lawyers are generally more careless than young lawyers, have too many distractions, or make too many errors leading to discipline. Younger attorneys are closer to the teaching of the rules of professional conduct, but with MCLE requirements even the older lawyers generally keep up their skills. The majority of the complaints against the profession relate to careless client dealings without regard to a lawyer’s age.

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 required by clients is the best way to weed out under-skilled attorneys and restore market balance, without giving the appearance of ageism.