Stop Focusing on Age

More and more, bar associations are focusing on older lawyers, but I cannot help but think that these association "knights on white horses" really have only one focus in mind: protecting their status in the minds of the public.

After all, if the public were to become angry at lawyers (aren't they already?), their jobs might be at stake.

This harkens back to an earlier complaint of mine that bar associations fail to take to heart the interest of the lawyer. After all, there are two interests at stake here: the public as well as the lawyers (who pay the salaries of bar staff).

The public should be protected not just against old lawyers, but rather against lawyers who are not competent, irrespective of their age. The older lawyer should be helped to see how and when it is best to exit the practice of law. As the song goes, "... know when to fold ‘em."

However, the age issue is not absolute. Older lawyers who keep up with evolving professional rules and trends through MCLE should have no trouble remaining in practice as long as desired.

If we really were concerned about the "integrity of the profession," we would address more seriously the fact that the great majority of disciplinary complaints relate to poor law firm management practices. Regardless of lawyers' ages, the majority of the complaints against them relate to the careless dealings with clients ... poor service, failure to return phone calls, inaccurate arithmetic on the billing statements. These are all management issues, not technical or substantive issues of law.

Poor client service is a problem at any age. But by typically not according CLE status to training in better firm management practices, bar associations don't address this issue. Thus it is easy to perceive that concern for the integrity of the profession resulting from lawyers practicing later in life is a bit ingenuous.

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 confidence.

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."

In a recent article, it was suggested that bar associations begin working with the medical community to develop "cognitive checklists" so that lawyers can self-assess whether they are suffering impairment. It was further suggested that some state bars are requiring that there be a "relief practitioner" working with a lawyer, similar to a relief pitcher in the baseball game.

Experience shows that this will be form only; no practitioner will want to take on the responsibility of working for free if and when his or her counterpart dies or is impaired sufficiently to be unable to practice.

And, no sole practitioner will want to pay a "relief practitioner" to be in this position. While it seems nice, it is economically impractical.

Yes, every lawyer will ultimately face the "ninth inning" of their legal career. And the wiser among us will plan for that.

However, suggesting this as the wiser path to travel, and following it, are two different things.