Aging Attorneys - Whose Problem Is It Really?

The Complete Lawyer
Volume 3, Number 4
April 2007

When I first began doing presentations for Bar groups and law firms about 9 years ago, I encountered something unexpected. I was typically asked to address issues related to work-life conflict for women whose career-building years coincided with biological clock-determined times for child-bearing and rearing. As the demand for billable hours increased, so did the need for alternative work schedules as a means for firms to retain talent and women to progress in their legal careers while also managing the bulk of family responsibility. Each time I spoke I emphasized the need for flexible schedules to be offered as genuine alternatives, not stigmatized “mommy-tracks.”

Each time, as the mostly-female audience filed out of the room, an older man would approach me. “The issues you’re addressing apply equally to us,” he would say. “Older lawyers don’t want to be forced out of practice. We want to gradually reduce our hours and contribute in the best ways we can. But as soon as we begin to scale back we get discarded. We’re de-equitized and forced to retire long before we’re ready to leave or our contributions have been exhausted.”

I’d been so focused on the challenges facing younger lawyers trying to have lives in the face of ever-increasing work demand that it honestly had not occurred to me that older lawyers were grappling with similar issues. Weren’t these men the ones who’d made the rules in the first place? Weren’t they the ones whose wives had been taking care of life so that they were available to work? Hadn’t they been the ones to define an “ideal” lawyer as the person who chose his “jealous mistress” over his life?

I now realize that aging lawyers face significant challenges. And the recent press and blog attention to the graying of the bar has confirmed my personal observations.

The Legal Profession Needs To Face Up To Changing Demographics

Once again the legal profession shows itself to be out of synch with current demographics. Law schools continue to churn out “ideal lawyers” prepared to devote endless hours to the profession. But there are simply not enough of them to meet the increasing demand for legal services. And these “ideal lawyers” cannot possibly meet the growing demand for diversity that firms are hearing from their clients.

In addition, half of all people graduating from law school are women, most of them unwilling to sacrifice their families in order to grab the brass ring. The values of many of the young men graduating from law school are different from the men currently occupying positions of power in the profession. “Sure the money is great right out of law school,” many male associates in firms confide to me. “But I don’t want to live the way I see the partners here living.” Many of these men plan on enjoying their extraordinary earning power for a few years and then moving on. They expect to start families and to be active parents, not just providers. Many simply reject the idea that life as a lawyer has to be that hard.

Baby boomers, the largest demographic group of lawyers, constitute the principal age-related segment of the general population. And they are graying. But they are different from the aging lawyers of prior generations: they want to prolong their careers. For some, continued employment is a financial imperative. Perhaps even more importantly, with increased longevity, many 55-70 year olds simply don’t feel “old enough” for traditional retirement.

The Law Tends To Stigmatize Those Who Choose A Different Path

These lawyers are not going “gently into that good night” (Dylan Thomas; Stephanie West Allen). But ever since the Seattle Times published its article about the “graying of the bar,” rationalizations for stigmatizing older lawyers have become almost as commonplace as those for stigmatizing lawyer-mothers who want to work reduced hours. The article reported that 66 percent of the Washington State Bar is 41 or older, while 10 percent are over 60; in addition, Alzheimer’s disease afflicts 10% of people older than 65 and up to half of those older than 85 (Seattle Times, 4/9/07, Marsha King).

A flurry of blog activity followed. Stephanie West Allen, a frequent writer for The Complete Lawyer, suggested in her blog body and brain exercise as a way aging lawyers can maintain health and cognitive fitness. Several writers debated the merits of mandatory retirement, especially for lawyers on the bench. Many bloggers agreed that issues of professional ethics were at stake. Members of the bar were reminded of their ethical duties when they become aware that an attorney with dwindling mental capacities continues to practice thereby compromising clients’ access to justice.

From my perspective, sounding the alarm about the graying of the bar and the potential for the victimization of the public seems suspect for a number of reasons.

Impairment Isn’t Always Due To Age

First, we don’t need to wait for the majority of lawyers to age in order to be concerned about impaired lawyers depriving clients of adequate representation. In the almost nine years that I’ve been coaching lawyers and consulting with firms, I’ve encountered dozens of impaired attorneys in active practice. One of my clients who worked in a large firm struggled to get good assignments both during her pregnancy as well as after she returned from maternity leave. Instead, she was asked to take over the neglected responsibilities of an active alcoholic senior male attorney in her practice group. Although his impairment was evident, it was unspoken. Consistent with Catalyst’s finding that “women take care,” she even had to deal with the late-night emergencies this impaired attorney created. Her requests that firm managers address the problem directly fell on deaf ears.

Another big-firm attorney I coached was constantly frustrated about the extraordinarily long hours he believed were necessary for him to work. The head of his practice group left the office daily between 10:00 and 11:00 am for a private meeting with his second-in-command at a nearby bar. Since the only other attorneys in the group were junior associates, there was no one adequately skilled to assist my client in the group’s work. If the practice group head returned to the office at all, he was always “three sheets to the wind.” When the second-in-command returned, he was so stressed by the situation that he’d hunt down the associates, following them from their desks to the bathroom to make sure they promptly went back to work. Associate after associate left the firm after being subjected to his outbursts of verbal abuse. But firm management stalwartly refused to address either the senior partner’s alcoholism or his junior partner’s bizarre behavior.

Every lawyer as well as every professional who works with lawyers has at least one similar story to tell. Lawyer assistance programs are provided by every state bar. Statistics about the prevalence of psychiatric disorders and substance abuse among lawyers have been widely publicized. Everyone knows about the relationship between alcohol and drug abuse and complaints of unethical misconduct. The level of stress and burnout in the profession is epidemic, yet billable hours demands are at an all time high.

This issue is rarely addressed. Instead, alarms about “the graying of the bar” elicit exhortations about attorney responsibility and ethics. Yet the prevalence of substance abuse among attorneys is statistically higher than the prevalence of Alzheimer’s disease among 60 year olds.

Firms Need To Address A Range Of Issues—Not Just Aging

Firms of every size regularly allow attorneys who are impaired due to substance abuse, depression and constant stress to continue working. Although denial is a typical response in these situations, and although it’s difficult to confront a colleague about perceptions of impairment, turning a blind eye to an impaired attorney who cannot possibly be adequately representing clients constitutes complicity.

Beyond substance abuse, why aren’t the effects of unremitting stress and lack of sleep not creating as much concern about the adequacy of client service as is the graying of the bar? Exhausted, multi-tasking attorneys make mistakes. Chronic stress impairs attention, concentration and memory. None of us wants to be operated on by a surgeon who’s been working continuously for the past 36 hours. How many clients want their business deals conducted or their child custody arrangements negotiated by an equally sleep-deprived attorney?

But concerns about the ethics of practicing in this impaired state have not resulted in a reduction of billable hours “targets.” Quite the contrary—the lawyer who bills the most hours is congratulated for heroic effort and stands a better chance of promotion to partnership than the one who takes time to eat well, exercise, receive regular preventive care and benefit from the health-protective effects of close relationships. How often does an attorney who takes time to de-stress, turn off her Blackberry and catch up on rest receive commendation for ethical practice?

To Stop Wasting Human Capital, Firms Need To Address True Diversity

A profession demanding this degree of conformity and being so indifferent to the well being of its greatest resource—its human capital—has big ethical issues with which to grapple.

I can’t help but wonder how much of the concern about the graying of the bar represents another “ism” to add to all the other ways in which the profession discriminates, consciously or unconsciously, against people who do not fit the mold of the ideal lawyer. Recruiting efforts and hiring statistics paint the picture of a diverse profession. However, an examination of firm leadership does not.

The profession has yet to seriously embrace genuine, multi-cultural diversity and inclusiveness. “The way things have always been” continues to be confused with the requirements for effective practice. As a result, impaired lawyers who fit the mold are retained while high-functioning lawyers who are different feel undesirable.

Women are pushed out of firms by:

1. Inflexible work structures that are incompatible with normal family life
2. Exclusion from networks, which allow access to clients and mentoring in business development
3. The need to prove that they can be both competent as well as likeable. Attorneys of color are driven away by assumptions of incompetence, interpretations of differences as deficiencies, and frequent nonverbal messages communicating rejection. Are older lawyers to be pushed out by stereotypes suggesting that any memory slip is a sign of dementia?

Watching 60-year-old attorneys with active minds, strong bodies and long-standing client relationships endure the humiliation of de-equitization is tragic and appalling.

We Need A New Definition Of The “Ideal” Lawyer

The profession must expand its notion of “ideal” in order to adequately address high attrition rates, client demands for diversity and projected labor shortages. One step toward this goal would be the creation of non-stigmatized flexible career tracks. Recent studies by Catalyst and MIT/Sloan suggest that talented women will keep leaving their firms unless they have genuine opportunities to succeed while also having time for family care. In fact, non-stigmatized, flexible career tracks are essential for retaining lawyers who understand that “life”—whether that means family care, community service or self care—makes them better, more ethical attorneys. The pool of talent represented by lawyers wanting to work flexible schedules cannot go to waste.

Flexible career paths would also allow firms to take advantage of the growing talent pool of women attorneys who “opted out” in the face of stigma inflexibility and are now seeking opportunities to resume their careers. Similarly, aging attorneys are in a position to vastly enrich their firms. No one else can match their ability to contribute as mentors and sources of institutional knowledge.

Law firm leaders seem to gradually recognize that diversity is necessary for more than just competitive advantage in today’s legal marketplace. It is increasingly necessary for survival. But firms cannot become multi-cultural workplaces while maintaining a centuries-old business model that is unresponsive to the realities of what a lawyer in today’s world needs to succeed.

No one wants to see a client harmed by the actions of a lawyer who is neurologically impaired—whether by the effects of age, alcohol, drugs, stress or exhaustion. Law firm leadership can direct efforts toward compassionate intervention when there is evidence of impairment.

Perhaps even more importantly, optimizing human capital and retaining diversity by providing training in unexamined bias can create the successful firm of the future as the boomer generation ages. When all talented attorneys have an equal opportunity to contribute to their firms and the richness of a multi-cultural workforce is effectively utilized, then firms can enjoy profitability—and the pride that comes from knowing that profits were earned ethically.