Too old to practice law?

Two recent items on the topic of age and the practice of law caught my eye.

One, an article in The Seattle Times about the "graying of the bar," was noticed by blawgers around the country. Noting that 66 percent of the members of the Washington state bar are 41 or older, and that 10 percent are over 60, the article declared that "incompetence due to declining skills, failure to keep pace or dwindling mental acuity may soon rise in the legal profession."

That seems overblown enough, but a second item described a new regulation in India (where legal work is increasingly being outsourced) stating that if you are not licensed by the age of 45, you cannot become an advocate. "We don't want the Bar to become parking lots for retirees," one official was quoted as saying.

The natural conclusion seems to be that older lawyers are more careless and have too many pressures in their mid-life that distract their attention and cause them to make errors leading to discipline. By implication, younger lawyers have neither so much business nor such complicated matters as do older lawyers, and therefore stay out of the "system."

I disagree. Young lawyers are just as likely to have both large caseloads and sophisticated matters -- at least the young lawyers that I see. Young lawyers are closer to the teaching of the rules of professional conduct than are the older lawyers. But, with the availability of CLE, even the older lawyers know generally what the rules are. So what is the difference?

One difference is that it is the older lawyers who tend to be running the "business" side of the practice. The younger lawyers tend to be the followers. Because many law firms have "eat what you kill" compensation, senior partners may not want to share information on clients or prospects with the next-generation lawyer who might "steal" business before the first attorney is ready to step away from active practice.

This creates a problem; not of competency, but of client service. Resolving it requires proactively encouraging succession of clients from older to younger lawyers, perhaps through a buyout or capital payout in exchange for sharing clients. Senior lawyers would remain engaged in the business, but without the fear of financial loss. The firm and clients benefit from a planned transition.

Such procedural issues go to the heart of the fact that, regardless of lawyers' ages, the majority of the complaints against them relate to careless dealings with clients; poor service, failure to return phone calls, inaccurate arithmetic on the billing statements -- all management issues, not technical or substantive issues of law. Poor client service is a problem at any age.

By contrast, creativity does not have to be an age issue.

For example, people over the age of 40 may know and understand computer technology, but they remain more comfortable with the use of books and paper records as creative tools. With the free association that is made possible by glancing through printed pages, facts and concepts emerge quickly and can readily be processed in different ways.

Computer screens allow only linear searching and processing. Developing a new concept is much harder when you have to follow the logic of the search program.

A generational prejudice? Perhaps -- but no more so than the idea that age equals incompetence.