f/k/a archives . . . real opinions & real haiku

June 8, 2007

Report on Aging Lawyers: D for disappointing

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 5:11 pm

Dkey  Apologies. Mea culpa. My bad. If you took my advice two days ago and clicked on the link to NOBC-APRL’s Final Report of the Joint Committee on Aging Lawyers (May 2007), you may be cursing me for wasting your time or creating undue expectations. I must regretfully plead guilty. Having now read the entire body of the Report, I’ve concluded there is not much there for anyone wanting useful guidance on how the legal profession and its ethics system should deal with age-related lawyer impairment [which we first discussed in the massive posting “The Graying Bar: Let’s Not Forget the Ethics,” in March 2007, and continued in “No Senior Discount at the Senior Bar,” in the July-August 2007 “graying lawyers” edition of The Complete Lawyer] . You really won’t find a lot of substance in the Report beyond the outline given in the accompanying press release (“National Committee Urges More Action on Senior Lawyer Issues,” May 31, 2007).

The Good News: The two national lawyer organizations most directly interested in legal ethics and professional responsibility — the National Organization of Bar Counsel (NOBC, which focuses on the prosecution of ethical violations by lawyers) and the Association of Professional Responsibility Lawyers (APRL, which focuses on the defense of lawyer grievance charges) — were concerned enough about the “potentially serious impact of increased numbers of aging lawyers who remain in the active practice of law” to appoint a joint committee, in August 2005, “to study the challenges raised by aging lawyers and propose solutions and best practices for attorney grievance committees, bar associations, courts and the Bar.” With that ambitious mandate, the Joint Committee then worked for nearly two years to produce the proposals and Final Report. That’s the Good News.

dgrade The Bad News: Although “intended to be a helpful resource and guide to best practices which may be tailored to individual jurisdictional needs,” the Final Report on Aging Lawyers contains nothing more than a list of “advice sound bites” on the very general tasks that need to be done to protect the public from and preserve the dignity of age-impaired lawyers. There is no guidance on how to accomplish those tasks, and not a hint — despite promising us “best practices” recommendations — about who has existing expertise or how it is being utilized. Instead, the bulk of the Report (and the entire 60 pages of Appendices) is aimed at a “related concern” that the Report admits “is not limited to senior lawyers” — the sudden incapacity or death of a lawyer who has not made adequate preparation for the continued representation or protection of clients.

Even with ironic grading, the Final Report on Aging Lawyers (which would have been a letdown even as a Preliminary Report) doesn’t deserve more than a D grade. If I were an advisor for a term paper or supervising attorney reviewing an Advice Letter, I would send it back and insist that some meat be put on the skeletal proposals — which are quite obvious, and surely could have been written after a brief brainstorming session by such a distinguished Committee. Here are some of the reasons it is so disappointing for any one interested in the legal profession’s dealing with age-related impairment in lawyers:

checkedBoxS Although 85-pages in length, the “Final Report” contains fewer than a dozen pages actually addressing age-impairment, and many of those pages are outlining the general issue, and the demographics behind delayed retirement and a graying bar. Instead, treatment of the valuable (but far from new) idea of having a designated successor lawyer and preparing for sudden incapacity, and the smiley-face tasks of patting older lawyers on the back for their contributions, suggesting nifty new titles and discounts for them, and discussing programs for unimpaired, still-competent lawyers, crowd out the urgent task that required creation of the Joint Committee.

checkedBoxS The so-called Best Practices proposals are the most anemic I have ever seen. My idea of a Best Practices report includes the notion that either 1) a survey is made of current relevant programs and practices, with the most effective or exemplary ones being described in some detail; or 2) if such programs do not already exist, or additional solutions are generated, detailed recommendations are made on how to achieve the desired results — often, with appendices chock-filled with the best thinking of committee members, with practical suggestions, and suggested wording for protocols and rules. Instead, in this Final Report we get one-and two sentence directives and appendices focused on the sideline issue of successor attorneys (using pre-existing documents that could have been readily accessed with a hyperlink).

[Whoops — After hours spent writing a lengthy discussion of the Report’s recommendations and its failure to provide practical guidance or mention important facts and problems (for instance, the differences between Lawyer Assistance Programs dealing with substance abuse impairment and undertaking age-related impairment duties), I have just lost the bulk of this posting, while attempting to publish it. I apologize for the inconvenience (and any similarities to the unfinished work of the Joint Committee on Aging Lawyers), but I’m not able to reconstruct this piece today. As mentioned above, check out the press release issued by NOBC for a list of recommendations on age-related impairment in the Aging Lawyers report. There’s nothing additional in the Report that will assist you in getting from the stated recommendation to its actual accomplishment.]

plum blossom scent–
a hazy memory
of my nanny’s house

with the old pine
the two of us…
forgetting the year

what did you forget?
retracing steps

comparing my wrinkles
with the pickled plums…
first winter rain

tired of walking
my wrinkled arm
the flea jumps

……………………….. by Issa, translated by David G. Lanoue

p.s. I knew the Aging Lawyers Report was going to get off track, when I read the very first footnote. Footnote 1 accompanies a sentence that deals with the bar, courts and disciplinary agencies addressing “what is likely to be a significant challenge for the legal profession in the next decade.” It states:

1] Many bar leaders are actively engaged in meeting this challenge head-on. For example, ABA President Karen J. Mathis initiated the highly-successful “Second Season of Service.” This month’s issue of Your ABA, an on-line ABA publication, reports on just some of the accomplishments of the “Second Season of Service” initiative.”

Second Season may be a fine organization, helping many older lawyers find post-retirement pro bono opportunities. But, it deals with still-competent, unimpaired lawyers, not impaired lawyers who remain in active practice.

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