Thoughts on Aging and the Law

Published December 17, 2013

When each year draws to a close, it’s hard to avoid the same images of doddering old Father Time and bright, bouncy Baby New Year. As a lawyer of a “certain age” – who still attends cycling camps annually – I tend to ignore generational stereotypes. But that is getting harder to do given the trends increasingly seen in the legal profession.

State Bar staffs assert a conclusion that older lawyers are more careless and have difficulty focusing their attention, which supposedly causes them to make errors leading to discipline. By implication, younger lawyers are presumed to be “sharper” and closer to the latest changes in the rules of professional conduct than are the older lawyers. But the Bar’s real concern should be that the public is protected not just against old lawyers, but rather against lawyers who are not competent, irrespective of their age. Older lawyers who keep up with evolving professional rules and trends through MCLE should have no trouble remaining in practice as long as desired.

Yes, there is some impairment as we get older, both cognitive as well as physical. Some have said we begin to die the moment we are born. This impairment at some point may impact competence. But until we have a definitive standard of competence, either through an examination required of all lawyers or some other standard such as multiple complaints to the disciplinary boards, this seems just one more form of “ageism.”

The problem with trying to create any absolute standard for competence is that it would be hard to apply it 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 nowhere in the time spectrum of a lawyer’s career that requires such an examination.

Yes, every lawyer will ultimately face the “ninth inning” of their legal career. And the wiser among us will plan for that. That is one of the salient points of my new book, Life After Law: What Will You Do With the Next 6,000 Days? The right way for older lawyers to see how and when it is best to exit the practice of law is through self-realization, not through imposition by an outside agency, especially one based solely on age.

Categorized in: Coaching, Ethics

Audience type: Administrators, Associates, Large Law Firms, Small Law Firms, Sole Practitioners