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Growing Old Together Several
years ago, Webster’s New World Collegiate Dictionary named “senior
moment” as its Word of the Year, defining the term as meaning a momentary
lapse in memory, particularly one experienced by a senior citizen.
I’ve now reached the age where I no longer find that quite as amusing
as I once might have. The legal profession also has reached a stage
where “senior moments” are increasingly likely to occur for many of
its members. Collectively, lawyers are growing old together. The
overall number of lawyers in Minnesota and the United States continues
to increase, as more lawyers enter the profession each year than leave.
So the average (mean) age of lawyers is probably going down, not up.
But on the other end of the aging spectrum, more and more lawyers
are practicing longer and longer without retiring or scaling back
their practices. Therein lie a host of potential problems for individual
lawyers, law firms, the profession as a whole and for protection of
the public—the stated purpose of a lawyer discipline system.1 Reasons
that lawyers are remaining in practice longer include the obvious
health care improvements that have enabled more people, and not just
lawyers, to remain healthy and active far longer than ever. Thus,
many aging lawyers remain highly competent practitioners who ably
represent clients and continue to make valuable contributions to the
law and society. Less positively, economic factors such as limited
retirement funds worry some lawyers into continuing to practice, even
if they would prefer to retire. As
noted, the focus of the lawyer discipline system first must be protecting
the public from lawyers who violate the Rules of Professional Conduct.
Unfortunately, not all of the aging lawyers who remain in practice
are equally capable of doing so. Rule 1.16(a)(2) of the Minnesota
Rule of Professional Conduct offers one clear measure of when that
capability should be questioned. The rule states that a lawyer shall
not represent a client, or shall withdraw if representation has already
commenced, if the lawyer’s physical or mental condition materially
impairs the lawyer’s ability to represent the client. From a societal
perspective, the issue becomes balancing the need to protect the public
from a few aging lawyers who are no longer able to practice effectively,
at least on their own, while trying to allow such lawyers to end their
careers with dignity. This balance is not always an easy one to strike. Recognizing a Problem In
recent years, the Director’s Office has received a small number of
reports about lawyers who may be suffering from the early stages of
Alzheimer’s disease or dementia. They have gone well beyond the occasional
“senior moment” and have started to miss appointments and court dates,
misplace client files and property, or repeat tasks they have already
performed. In one such instance, family members could not bring themselves
to confront the individual in an effort to get the lawyer to cease
practicing. No doubt this can be a difficult decision and task to
perform tactfully. The alternative, however, may be even more unfortunate
when the lawyer is unable to recognize his own diminished ability.
Here, it was left to the disciplinary system to deal with the matter
based upon complaints and by seeking to impose discipline.2 The attorney
eventually agreed to retire as part of a stipulated disposition, but
only after some acrimonious discussions. More
satisfying and humane is if family, friends, support staff or other
lawyers in the firm or in the community take notice of an aging lawyer’s
early signs of failing and intervene to help the lawyer transition
to a reduced practice or retirement, before disciplinary measures
are necessary. Partners in a law firm, for example, are obligated
to report known violations of the Rules of Professional Conduct by
another member of the firm that raise a substantial question as to
that lawyer’s fitness. Early intervention may permit the firm to closely
monitor the lawyer’s ability to continue practicing before such instances
of misconduct occur and thereby eliminate the risk of future rule
violations, thus preventing disciplinary reporting.3 An
important issue facing the aging lawyer population is what is often
called “successor planning.” This column has previously addressed
related issues such as creating an office manual of practices and
document locations, identifying a successor attorney who has agreed
to handle certain client matters and is willing to assist in transferring
files to other attorneys or to return them to clients, and the selling
of the physical assets of a law practice. We have also addressed the
obligations of lawyers in a firm with an impaired partner.4 Lawyers
of all ages, especially solo practitioners, should make appropriate
contingency plans for their law practices so that clients are not
substantially harmed by a lawyer’s sudden death or disability. Senior
lawyers especially should not put off successor planning any longer. Resources Available There
are resources within the legal profession to assist aging lawyers
or those concerned with the risk of an aging lawyer’s performance.
For example, the American Bar Association has a Senior Lawyers Division
that can act as an information resource. More locally, malpractice
insurers, such as Minnesota Lawyers Mutual, can be an excellent resource
that lawyers may turn to for help with successor planning procedures.
Lawyer assistance programs, or LAPs, deal with individuals with chemical
issues or mental health issues such as depression, both of which can
affect senior lawyers. They also have information available to assist
aging lawyers or those concerned about them. While
the MSBA has a New Lawyers Section and an Elder Law Section, it no
longer has a section aimed specifically at senior lawyers as it once
did. Elder law deals with lawyers assisting elder clients, but its
members are not necessarily elderly themselves. Perhaps this is an
area into which the state bar association ought to consider expanding
its services, for as noted, there is a growing population of aging
attorneys and the corresponding need for such resources will only
increase in the near future. Even if the interest to sustain a separate
senior lawyer section is not yet sufficient, recruiting senior lawyers
for special projects, especially mentoring or pro bono projects, is an excellent option.
Continuing Legal Education providers should consider dedicating more
seminars to the topic as well. In the meantime, the MSBA’s Life and
the Law Committee addresses this issue as part of its mission to discuss
career satisfaction, mental and chemical health, balance, and other
quality of life issues.
2
Rule 28, RLPR, does allow for a transfer to disability status proceeding
to be initiated by the Director’s Office without the attorney’s consent.
A transfer to disability status is very rarely sought without the
agreement of the lawyer, however, or without judicial findings of
disability. 3 See ABA
Formal Ethics Opinion 03-429 (2003). 4 Betty Shaw, “Winding Down, Closing Up or Selling Out,” 61 Bench & Bar of Minnesota 10 (Nov. 2004), p. 12 (www2.mnbar.org/benchandbar/2004/nov04/prof_response.htm); Ken Jorgensen, “Ethical Responsibilities for an Impaired Partner,” 60 Bench & Bar of Minnesota 9 (Oct. 2003), p. 12 (www2.mnbar.org/benchandbar/2003/oct03/prof-resp.htm). MARTIN
COLE is director of
the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and
of the University of Minnesota Law School, he has served the lawyer
disciplinary system for 21 years.
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