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.

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