Ethics

Aging attorneys are a lurking problem in the legal profession.

, The Legal Intelligencer

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Samuel Stretton
Samuel Stretton

Aging attorneys are a lurking problem in the legal profession.

I am a younger lawyer, and I noticed many of the older lawyers aren't retiring and are still practicing in their 70s and 80s. Is that unusual?

The practice of law is really a way of life. Very few lawyers actually retire unless they are with a big corporation or big firm where they are forced to. Most lawyers want to die in their boots. Most lawyers enjoy the courtroom and the practice and helping people and will continue to do it as long as they can.

Having said that, it is clear that there are many senior lawyers who are still actively practicing. But there is a problem and disciplinary authorities are starting to notice it. The problem is when an older lawyer no longer is truly mentally or physically capable of practicing law but is still practicing.

This is a problem that has really developed in the past 10 years when the longevity of people has also been reflected in lawyers living a lot longer and well past their primes. Unfortunately, many older lawyers are economically unable to give up. Contrary to the public's belief, most lawyers are not wealthy. Most lawyers live week to week, raise their families, send their children through college and graduate school and usually support an office staff. In this modern world, the expenses of maintaining an office staff are quite significant. Many lawyers, by the time they reach their late 60s and early 70s, have no pension of any great worth and no real assets. Whatever assets were saved were most likely spent for the schooling of their children.

I remember as a young attorney seeing one of the more fabled criminal trial lawyers at the end of that individual's career. The lawyer was about 88 or 89, half blind, and clearly had lost several mental steps due to age. It was sad to watch that lawyer go into the courtroom and make a fool of himself, especially because when he was in his prime, he may well have been one of the best trial lawyers in Pennsylvania.

This is also a potentially serious discipline problem. Disciplinary authorities are not sure what to do. It is difficult to have a senior lawyer removed. They may not be as sharp as they once were, but it is difficult to show they are not competent.

On the other hand, clients often suffer due to a lawyer's infirmities or loss of the mental agility that is truly needed, particularly in trial practice. To be a good trial lawyer, one has to have quickness and retention. If a lawyer loses even a small portion of those abilities, he or she is no longer going to be able to perform at the level necessary for skilled litigation.

There are provisions in the Rules of Disciplinary Enforcement if a lawyer becomes senile or physically or mentally incapacitated. There are provisions in the rules that allow for the appointment of a conservator or someone to take over the senior attorney's practice. There can also be requests for discipline against a senior attorney who is not fulfilling his or her professional responsibilities or even potentially an emergency suspension if necessary.

But no one wants to do that. The older lawyer may be just not performing at the level he or she should, but often there are no obvious signs of total neglect.

With the baby boomer generation, there are many lawyers in their early 70s who are still practicing. This could result in a very high population of older lawyers still actively practicing over the next 10 or 15 years, with resulting problems of neglect and general failures due to old age or loss of memory or mental agility.

Ideally, older lawyers would have firms or lawyers they work with that would help to support them. Often, the name of an older lawyer would bring in business and younger lawyers would handle the cases.

But many firms don't want that anymore. I am starting to see lawyers who formed firms and ran them for years and are now slowing down due to age and being slowly pushed out by the younger partners they mentored and trained. The younger ones are jealous or angry about having to pay the senior partner when he or she is not performing.

The old model of a law firm supporting an older lawyer into retirement doesn't exist anymore. The modern theory is eat only what you kill. That is the attitude of many firms and, as a result, when a senior lawyer is no longer performing at the level he or she once did, younger partners are not eager to support that lawyer and will often try to shove him or her out of the firm.

There really is no easy solution to this problem. Nor does one really want the disciplinary authorities to start petitioning for conservatorships or suspensions with the resulting embarrassment to men and women who were once pillars of the legal community.

But the public, at the same time, has to be protected, and if a lawyer is no longer capable of performing at the necessary level, that lawyer has to be told to stop practicing or associate with others who are willing to assist that lawyer so the client can be adequately protected and their legal goals met. The legal profession cannot just rely on the Office of Disciplinary Counsel to shoulder this burden, because it is grossly underfunded and would be unable to take on that sort of monumental task.

Clearly, the various state and county bar associations are going to have to focus over the next 10 to 20 years on the issues of senior attorneys. Perhaps the bar associations can develop a suborganization of senior or retired attorneys who can assist each other and, at the same time, provide candid advice to their colleagues about when it is time to stop practicing.

There is no need for any hard and fast rule. Certainly, there should be no mandatory retirement. But the next 10 to 20 years are going to see many more problems due to the age of attorneys who have nowhere else to go. Whether in the future there will be any need for periodic recertification or programs that pair a senior lawyer with a younger attorney so the senior lawyer can get advice and perhaps help remains to be seen.

This is a lurking problem and will have to be addressed at some point by the legal profession.

Lawyers should develop a plan to deal with files.

What do I do with legal files? What are my responsibilities to a client once the file is long closed?

Every older lawyer knows the aggravation of closed files. Many lawyers use storage facilities, but that ends up costing several hundred dollars a month. It is also very costly to have those files brought back and to have them ultimately shredded.

The problem is compounded by what to do in this age of electronic files where some lawyers don't really have paper files anymore. But perhaps that can be easily resolved. An electronic file can be placed on a computer disc and can be given to the client, with the lawyer maintaining a copy.

Files are often voluminous thanks to copiers. Before copying was so easily done, many lawyers' files were a quarter-inch thick, even in the most complicated cases. But in this age, where everything is copied and recopied, files take up a lot of space.

A good idea for a lawyer is perhaps in the fee agreement to have a clause dealing with what happens to the file once the representation is concluded. Perhaps the lawyer and the client can agree as to what will be kept in the file and what can be thrown out. Anything thrown out can't go in the trash but has to be shredded to protect attorney-client privilege.

Perhaps in the fee agreement, lawyers can negotiate with clients not only what is to be maintained, but where it is to be maintained and who is to pay the cost of maintaining or accessing the file. On the other hand, if a client demands the file and the lawyer still wants to keep a copy of the file, wise lawyers keep enough of the file so they can reconstruct what they did and didn't do. A fee letter that deals with closed files and costs can go a long way to resolving and limiting future disputes with clients. It can also save a lawyer time.

Some lawyers believe they are going to destroy old files that are long past the statute of limitations, and that they can do so without notifying clients. Other lawyers believe one must notify clients and give them a chance to come in and get the files as opposed to the files being destroyed. All of this can be defined in the fee agreement.

The Pennsylvania Bar Association's legal ethics committee has discussed this issue in Formal Opinion 2007-100. That opinion has a sort of checklist. First, the opinion suggests that lawyers consider having a file management retention policy. Second, there should be a decision as to when and how a file will be destroyed. Third, the committee suggests lawyers seriously consider all statutes of limitations and any other issues before destroying files. Obviously, files that have original contracts or wills should not be destroyed. Lawyers should develop a procedure as to how to interact with clients and when to listen to a client regarding the destruction of a file.

The committee also suggests that any file destruction has to be consistent with the attorney-client privilege. It suggests that even if files are destroyed, lawyers maintain an index system of the destroyed files. Finally, in this modern age, there should be some kind of agreement between a lawyer and a client as to the handling of substantial data. With modern discovery and emails and electronic data, a file can be voluminous. Who gets what and what is destroyed should be worked out with the client, perhaps in the original fee letter.

The issue of what to do with files is for more and more lawyers an overwhelming proposition. Every lawyer struggling to make their overhead each week now faces the added expense of file storage and file destruction. But the Pennsylvania Bar Association is right that lawyers should develop a policy and procedure and try to follow them. One of the key steps is notifying the client well in advance so the client's views are known and honored when reasonable. Lawyers who ignore this can create problems for themselves and for clients. Whether files are electronically stored or stored in paper, the process can still be overwhelming, confidentiality still has to be maintained and clients' wishes have to be considered and potentially honored. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.

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