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

  Legal weblogs and their often neglected comment sections get busy whenever lawyer lewdness is the topic.  No one was surprised this week, then, when David Lat focused his legal tabloid Above the Law on the case of third-year Brooklyn Law student Adriana Dominguez, who — according to the NY Daily News — appeared last January on the Playboy TV series “Naked Happy Girls,” in an episode titled The Rock Star and the Lawyer.  At AtL, there was a lot of the usual sophomoric snickering, along with musing over whether law firms or clients would want to hire Adriana. 

         Things actually got a little lawyerly, however, when the question turned to whether Adriana’s escapade might cause bar applicant Dominguez to flunk the Character and Moral Fitness evaluation that is part of acceptance into the bar.  At Feminist Law Professors blog, South Carolina U. Prof. Ann Bartow concluded “I don’t think nudity is an ethical violation,” and called Peter Lattman of the WSJ Law Blog an “asshole” for even asking the question.

    Let me make this clear (for the sake of Prof. Bartow and others who might condemn the messenger for his issue-raising message): I do not believe that appearing in this one softporn video should justify denying entrance to the Bar.  My question in this posting is whether a bar fitness committee might disagree and the courts uphold the rejection.  My concern arises in the context of recent efforts across the nation of bar groups, grievance committees and courts using ethics rules to maintain the dignity and image of the profession — especially given Ms. Dominguez’s desire to counter the reputation of lawyers as boring and the specific connecting of her performance by the producer with her status as a lawyer.

Constitutional Law and weblog maven Eugene Volokh gave us a considerably more thoughtful assessment of the issue than did Prof. Bartow, in his “Posing for a Playboy Video and a Would-Be Lawyer’s ‘Character and Moral Fitness” Evaluation’,” at Volokh Conspiracy (April 12, 2007; via Robert Ambrogi at LegalBlogWatch, “The Right to Bare Arms, Etc.,” April 13, 2007) Prof. V. sets up the facts with excerpts from the NY Daily News, including a quote from an unamed representation of the NY Bar’s Fitness Committee: “It may have an effect. It’s a possibility in the worst-case scenario that the person does not get admitted.”  After noting that “Rightly or wrongly, such behavior may make employers and clients think the less of you,” the Professor gives this analysis:

“[I]t seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity).

“The government has been historically granted some extra latitude when it comes to licensing lawyers. . . . But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here.”  [emphasis added]

Although Prof. Volokh has given us a thoughtful analysis, I’m afraid it may be wishful thinking — the kind of overly-optimistic assertion that is often used by strong advocates of free speech rights in the face of ethical limits on lawyer speech. (see my Comment at Consumer Law & Policy Blog, where first amendment claims were confidently raised against the recently adopted New York lawyer advertising rules) Before we say the courts would find this to be an easy 1st Amendment case, we need to consider recent machinations by the law profession’s Dignity Police, which strongly suggest that “a pretty powerful explanation of why the speech may undermine the administration of justice” may in fact not be required by the judiciary before lawyers are disciplined, disbarred, or denied bar membership based on their speech.    

   The Dignity Police have been very active within the legal profession in recent years (see, e.g., our recent post on the bar’s undignified self-importance).  Although the instances have involved various aspects of lawyer advertising, I do not believe the context of “commercial free speech” can easily be discounted or ignored, given the stress that has been given to the link between “speech” that demeans the profession and the need to preserve public trust in the justice system.  As Professor Volokh notes, a lawyer may be disciplined (and, implicitly, denied membership) for “conduct that is prejudicial to the administration of justice,” under Model Rule 8.4(d).

       A prime example of bar and judicial concern over lawyer speech that demeans the profession is the battle of the Florida Bar Association’s ethics watchdogs and the Tallahassee firm of Pape & Chandler (which specializes in motorcycle accidents) over its use of a pit bull image in place of an ampersand in its letterhead and of the 800-PIT-BULL phone number.   The Bar had presented absolutely no evidence of consumer harm or of public views on the topic; what counted was the assumed affect on the Bar’s image.  The hearing referee specifically held that applying the bar’s advertising rules to ban the P&C pitbull — which, as you can see here is a dignified, sleepy-eyed, non-growling doggy — violates the First Amendment rights of lawyers Pape and Chandler.  The Florida Supreme Court strongly disagreed, in Florida Bar v. John Pape and Marc Chandler (Fla. Sup. Ct., 2005., pdf).  Here are a few excerpts:

”These devices, which invoke the breed of dog known as the pit bull, demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice.”

“[B]ecause the use of an image of a pit bull and the phrase ‘pit bull’ in the firm’s advertisement and logo does not assist the public in ensuring that an informed decision is made prior to the selection of the attorney, we conclude that the First Amendment does not prevent this Court from sanctioning the attorneys based on the rule violations.”

  pit bull banner

“Indeed, permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice. Prohibiting advertisements such as the one in this case is one step we can take to maintain the dignity of lawyers, as well as the integrity of, and public confidence in, the legal system. Were we to approve the referee’s finding, images of sharks, wolves, crocodiles, and piranhas could follow. For the good of the legal profession and the justice system, and consistent with our Rules of Professional Conduct, this type of non-factual advertising cannot be permitted.”

“We also disagree with the referee’s conclusion that the application of rules 4-7.2(b)(3) and 4-7.2(b)(4) to prohibit this advertisement violates the First Amendment. Lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified. This thread runs throughout the pertinent United State Supreme Court precedent.”

“We conclude that an advertising device that connotes combativeness and viciousness without providing accurate and objectively verifiable factual information falls outside the protections of the First Amendment.”

Click on the pit bull banner link above to see just how slight an “”explanation of why the speech may undermine the administration of justice” was required for the Florida Court to discipline Pape & Chandler.  At the public admonishment session, Florida Bar Association President Alan B. Bookman continued to stress their role as Dignity Police, saying that “Permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.” 

  The U.S. Supreme Court could have curbed FBA’s overzealous Dignity Police, but in March 2006 it refused to hear Pape & Chandler v. Florida Bar Ass’n (see our prior post).  Were it ever to grant cert in such a case, I see little reason to hope that this Supreme Court would disagree with similar decisions, given its deference to “states’ rights” and the very high probability that it also buys into the lawyer dignity conceit.  Thanks to the Court’s inaction in P&C, the Florida Bar is currently continuing its campaign against bad taste by attacking tv ads for DivorceEZ.com.  (See our post in late March on the bar’s undignified elf-importance; as well as Spare Room Tycoon, and Legal Blog Watch)

      Of course, it isn’t just Florida which has shown such tendencies.  In 2005, South Carolina made it unlawful for a lawyer to advertise with “a nickname that creates an unreasonable expectation of results.”  [S.C. Code Section 39-5-39(1)]  See our prior post. New York’s new lawyer advertising rules similarly ban utilizing “a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.” Sec. 2000.6(c)(7)  As such rules are meant to reach innocuous nicknames like “The Hammer” and “Heavy Hitters,” it is clear that the worry is far more likely to be lawyer dignity and image than consumer protection and the prevention of misleading claims.  

Don’t forget: the rules in New York and South Carolina have been reviewed by the highest courts in each state prior to inclusion in the lawyer’s professional responsibility code — after public comment that surely raised free speech issues. 

     It’s clear, then, that ethics committees and reviewing courts in several states are highly likely to equate demeaning the image of lawyers with despoiling the entire legal system.  How outlandish is it, therefore, to suggest that appearing in softporn ventures that specifically play off the star’s connection to the legal profession would raise fitness issues for a bar applicant, by undermining the administration of justice?  The next question is:

How likely would it be that bar fitness committees are so prudish as to make the connection between widely-distributed softporn featuring a bar applicant and his or her fitness to be a lawyer?

You can draw your own conclusions in answering that question.  I suggest you take into consideration the following recent examples of bar neo-puritanism at work:

  big  The brouhaha over this Jiwani ad’s appearance in Massachusetts Lawyers Weekly last November (as discussed in my posting “puritans, prudes and professional picklepusses,” which has many links and quotes) seems quite telling. The advertisement, which declares “a custom-tailored suit is a natural aphrodisiac,” ended up being pulled by MLW’s editor.  Leading the attack on the ad was the Massachusetts Women’s Bar Association, whose President, Kathleen M. O’Connor, wrote to MLWeekly that “As lawyers, we are obligated to fight against gender discrimination, in whatever form it may take,” and that “We expect more from this newspaper.”  In a necessarily unscientific online poll, the Boston Globe asked “Is this ad too risque?” and over 78% of the respondents said “no”.   

   Similarly, writing at FemLawProfBlog last September, the very same Prof. Ann Bartow who gives Adriana a pass for appearing in porno, wanted to string David Lat up by his gavel — because he was holding an ERISA Lawyer Hottie Contest at Above the Law. (See our prior post, and Ambrogi’s at LegalBlogWatch)  Bartow called the Contest “mean and sickening.”  How far is that claim from one of demeaning the profession?

  I recall, but have not been able to locate online discussion of a recent episode in the legal community where a female lawyer was ordered or convinced to stop using an overly-racy photograph of herself in her ads. I’d appreciate an email or Comment giving details and/or links to relevant materials.

    update (April 15, 2007): Prof. Volokh wrote to say that I have only pointed to cases involving commercial speech, which “has long been less protected than other speech.”  The issue, of course, is whether noncommercial speech by lawyers has so much more protection than commercial speech that we can safely ignore the fact that the courts and the Bar have been (a) too willing to designate disfavored promotional activities as demeaning to the profession and then (b) too quick to equate the purported injury to lawyer image with injury to the legal system deserving of discipline.  Rather than assuming ample First Amendment protection, we should be letting the Dignity Police know that the legal profession looks far worse trying to defend its supposed dignity than it would by granting its members the broadest possible free speech rights (and thereby also giving the public credit for having more than half a brain). [update (April 17, 2007): see our post Dignity Police censure Felder for penning “Schmucks!”]

one button undone     
in the clerk’s blouse    I let her
steal my change 

. . . by George Swede – from Almost Unseen (2000)

 

sua sponte — 
madame justice
catches me staring

. . .  by dagosan

 – from Taboo Haiku: An International Selection (Richard Krawiec, ed., Avisson Press, Greensboro, 2005): 

Clothesline
the widow’s black lace panties
covered with frost
 

Warm breeze
the colt’s erection nuzzles
a daisy
 
. . . . . . . . . . . . . . . .. . . . by George Swede
 

me in one hand
a belt in the other
dads sings a lullaby

. . . . . . . . . by roberta beary, esq.

at the end of Lent the taste of you

 

. . . . by jim kacian

 ACS guest weblogger, and Boston College law professor, Kent Greenfield, had an entertaining and enlightened posting two days ago at the American Constitution Society Blog, titled “Brain Damage and Economic Reasoning” (April 2, 2007; via Ambrogi)  As Prof. Greenfield puts it: “News from the world of science: a symptom of a certain kind of brain injury is that the victims end up thinking like economists.” Greenfield heralds the decline in academic circles of the law-and-economics movement, explaining its roots in the neoclassical school of economics, “which bases its predictions on the so-called “rational actor” theory of human behavior.”  Under the Rational Actor or Economic Man theory: 

“Humans are assumed to make choices based on a cost/benefit analysis, maximizing their own utility.  Adherents to law-and-economics theory have applied that assumption in crafting rules in areas as diverse as criminal law, corporate law, and family law.” 

Greenfield notes: “The problem, of course, is that the economists’ view of rationality is ridiculously narrow.”   The rational actor theory has been under attack:

“So-called behavioral economics has been especially influential, deconstructing the rational actor theory using insights from psychology, providing a much more sophisticated (if messier) account of human behavior.  These more sophisticated models of human behavior take into consideration bounded rationality, limited willpower, as well as a richer definition of self-interest.”

With that background, Greenfield discusses two recent New York Times articles, Jeffrey Rosen’s March 11 NYT Magazine piece on “Neurolaw” and Benedict Carey’s March 22 article “Brain Injury Said to Affect Moral Choices.”  As Greenfield states, Carey wrote that scientists studying people who have suffered brain damage to a part of the prefrontal cortex have found that they make decisions with less compassion and with more utilitarian “rationality.”   His discussion of the article is well worth reading, no matter how rational you’re feeling today.  I wholly endorse his conclusion:

“Those humans who think and act like economists predict are those who suffer from brain damage, or those for whom brain damage can be temporarily simulated.  To be fully human is to act with spite, compassion, confusion, love.  Economists may not understand this, but the rest of us do.”

If you want to read more about economics finally discovering the irrational, I strongly recommend “The Marketplace of Perceptions: Behavioral economics explains why we procrastinate, buy, borrow, and grab chocolate on the spur of the moment,” an 11-page cover article in the March-April 2006 edition of Harvard Magazine, by Craig Lambert, which we discussed at length in a posting last year. 

  Graced with a cover illustration of Draper’s Ulysses and the Siren’s (copyright Bridgeman Art Library), the article gives a brief history of the rise of behavoral economics and its arguments against Economic Man — the human actor who “makes logical, rational, self-interested decisions that weigh costs against benefits and maximize value and profit to himself.,” and who simply does not exist outside classical economic theory.  It notes that behavorial economics is “a young, robust, burgeoning sector in mainstream economics, and can claim a Nobel Prize, a critical mass of empirical research, and a history of upending the neoclassical theories that dominated the discipline for so long.”

river boat–
on a night of fireworks
still selling fireworks

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

In our prior post, we asked “How often have you been annoyed or bemused by economic purists, who praise or pan a proposed idea based on whether it fits their model of economic logic, no matter what appears to be happening in real life?” and rejoiced that The Marketplace of Perceptions “has some ammunition (or solace) for those of us who prefer to deal with the real world and real people, instead of homo economis.”  Here are two excerpts from the article: 

1.    Economic Man makes logical, rational, self-interested decisions that weigh costs against benefits and maximize value and profit to himself. Economic Man is an intelligent, analytic, selfish creature who has perfect self-regulation in pursuit of his future goals and is unswayed by bodily states and feelings. And Economic Man is a marvelously convenient pawn for building academic theories. But Economic Man has one fatal flaw: he does not exist.
2. When we turn to actual human beings, we find, instead of robot-like logic, all manner of irrational, self-sabotaging, and even altruistic behavior.

The article explains that human being are in actuality quite vulnerable to how the decision-maker describes the choices to himself and, therefore, to how they are framed by the presenter.  It ends with the hope that “The models of behavioral economics could help design a society with more compassion for creatures whose strengths and weaknesses evolved in much simpler conditions.”  As discussed in our posting, the Sidebar piece in the Harvard Magazine article Games of Trust and Betrayal is especially interesting.  In it, associate professor Iris Bohnet explains  that humans are not merely risk averse, they are trust averse — and, therefore, very vulnerable to betrayal, and more willing to trust nature than humans. “Feeling betrayed is a deeper hurt than suffering an economic loss.”

the katydid–
even while they sell him
singing

 

I entrust my home 
for the night
to mosquito-eating bats

………………………….. by Kobayashi Issa

Another sidebar worth exploring is titled Neuroeconomics, which explains that “Certain patterns of response to rewards seem to be biologically embedded in the human brain.”  A branch of behavioral economics called neuroeconomics looks inside the brain with scanning tools like magnetic resonance imaging (MRI) to investigate patterns of motivation.  While “an interaction of the limbic and analytic systems governs human decision-making:”

“The limbic system seems to radically discount the future. While the analytic system’s role remains constant from the present moment onward, the limbic system assumes overriding importance in the present moment, but rapidly recedes as rewards move into the future and the emotional brain reduces its activation. This explains impulsiveness: the slice of pizza that’s available right now trumps the dietary plan that the analytic brain has formulated. Seizing available rewards now might be a response pattern with evolutionary advantages, as future benefits are always uncertain.”

We also explored the folly of Economic Man this time last year, in the post “poor steve bainbridge” (April 20, 2006), which focused on Steve’s posting “Drum on the Minimum Wage” (April 11, 2006).  Using “rational man” assumptions, Steve’s contribution to the minimum wage debate was to ask whether raising the wage is likely to cause more youths to drop out of high school.  We noted that “Steve believes that teens actually will base their decision to stay in school on marginal differences in the minimum wage.” Thus, he recommended “a differential lower minimum wage for those who have not completed a high school degree, [which] should result in a lower dropout rate.”  My response to Bainbridge, having been a teenage, represented scores in Family Court, and lived with a few ,was:

  As for reality, assuming rational, price-theory behavior by teens in California, or any other state, when deciding whether to drop out of school, is the kind of maddening Economic Man fetish that we decried last month in a blurb pointing to the article “The Marketplace of Perceptions” (Harvard Magazine, March-April 2006).

The “Economic Man fetish” would be simply amusing if it were only used in academia.  Because it so often continues to be an excuse for creating programs based on the faulty Rational Actor theory (as well as the related worship of marketplace forces or greed), and for blocking or reversing legislation that takes into account the emotional and “human” needs of human beings, the theory is dangerous, damaging and divisive.

  Extra credit question: Was Steve Bainbridge acting with his limbic or analytic system, when (as decribed in our post) he repeatedly removed trackbacks to poor steve bainbridge from his website?  Will he do it again?  

 

they even sell    
the swamp’s lotuses…
leaf and blossom

selling morning-glories     
wet with morning dew…
a tough character

spring departs–
the old clothes buyer
ignores me

while selling his dumplings 
and such…
blossom viewing

morning frost–
yet still a child
sells flowers

they even sell tea
not worth a fart!
summer trees

first winter rain–
going out to buy
dinner

simply trust,
simply trust!
cherry blossoms in bloom

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

  Even Economic Man must be loving the cherry blossoms in D.C. this week. Click for our tribute to cherry blossoms festivals and haiku.

My brain’s been doing a lot of “Scootering” lately: forgetting a fact, then remembering it, then forgetting it again. (see WaPo article, “Where’d We Leave that Darn Fact?,” Feb. 11, 2007) For well over a month, I’ve “forgotten” to fulfill my promise to write about our graying legal profession. That’s despite seeing many reminders in the news and coming across the following quote while reading the P.D. James novel “A Certain Justice” (Seal Book, 1997, reprint 2006, at 294):

“I shall, of course, be retiring as Head of Chambers at the end of the year. A lawyer whose mind is apt to go blank is not just inefficient, he’s dangerous.” – Hubert Langton, (the already-dangerous) Head of Chambers

What finally pushed me to finish this lengthy piece is the news from the Alzheimer’s Association, that “Alzheimer’s Disease Prevalence Rates Rise to More than Five Million in the United States” (March 20, 2007; full report, 28 pp pdf; fact sheet). Apparently, “One out of eight people age 65 and older has Alzheimer’s, with up to half a million Americans under 65 suffering from early onset Alzheimer’s. Ten percent of the lawyers in Washington State are over age sixty. If the numbers are similar for the entire country, there may already be 10,000 to 15,000 lawyers with Alzheimer’s disease. How many of them are still in practice? [update: (March 22, 2006): “State Bar Association Calls for Increasing Retirement Age for Judges [to 76],” NYSBA Press Release, March 22, 2007]

It’s been almost two years since our cranky alter ego “Prof. Yabut” wrote the posting “peridementia and the aging knowledge worker.”

Yabut defined “peridementia” as the period in which the subject starts to have a mild version of the loss of intellectual capacity that is associated with dementia — i.e., impairment of attention, orientation, memory, judgment, language, motor and spatial skills, and function.

As peridementia could very well occur long before one’s retirement, Prof. Y wondered when interference with job functioning becomes significant enough that something needs to be said and done about it within a firm or within the bar, given the ethical obligation of lawyers:

1. to provide competent (Model Rule 1.1) and diligent (Rule 1.3) service to clients
2. to reasonably consult with the client and keep the client reasonably informed about the status of the matter (Rule 1.4)
3. to refuse or withdraw from representation of a client when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” (Rule 1.16a), and both
4. to report to disciplinary authorities the conduct of another lawyer that “raises a substantial question” as to the lawyer’s fitness to practice law (Model Rule 8.3) and
5. to “make reasonable efforts as a manager or supervisor to ensure that a law firm “has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (Model Rule 5.1).

mid-argument
the senior partner
has a senior minute

. . . . . . . . . . . . . . . . . . . by dagosan

Since then, the topic of a graying legal profession has gotten quite a bit of attention. Back in 2005, my alter ego fretted:

If my otherwise-healthy, middle class and professional, over-50 friends are any indication, there’s a lot of “peri-dementia” going around. People who joked a few years ago about their first batch of Senior Moments, aren’t joking any more. We seem to be having “brainos” that are quite a bit more worrisome than the increased numbers of typos found in our documents. They include episodes of mild confusion and disorientation; skipping steps in necessary tasks; and memory lapses considerably more important than the proverbial word on the tip of our tongues.

Because “76% of boomers intend to keep working and earning” after retiring from their regular job (Merrill Lynch survey, Feb. 2005), and large numbers of Baby Boomers (in both the U.S. and Canada) will in fact have no choice but to continue working, due to financial imperatives, Prof. Yabut opined that peridementia could become commonplace in the workplace. And, he asked a few pertinent questions:

What are actual or potential employers, and co-workers, going to do about peridementia? How should ethical requirements of competence affect the choices made by lawyers and other professionals? Will age discrimination laws become a shield for those who aren’t quite as sharp as they used to be? Does society want to offer such protection?

Professors Becker and Posner wrote in 2005 about the related topic of judges and law professors who “Overstay Their Welcome” Judge Posner focused on septuagenarians, noting that a loss in mental capacity from aging “may reduce the value of [their] entire output to zero.” Prof. Daniel Solove at Prawfsblawg wasn’t convinced that the problem of mental acuity is significant enough to warrant the testing suggested by Posner, but noted that “retirement is often the most effective remedy for dealing with a lazy or problem-generating judge or faculty member,” while preserving tenure.

the old days . . .
autumn colors
black and white

. . . . . . . . . . . . . . . by andrew riutta – Full Moon Magazine (2005)

Becker and Posner were talking about the pre-Boomer generation of judges and lawyers, whose aging problems are already with us. Even more than in 2005, there are strong reasons why I believe Baby Boomer peridementia is also very likely to blossom within the legal profession in the coming decade or two, as BoomerEsq decides to work well past the traditional retirement age (a trend already noted in studies such as “The Changing face of the legal profession,” which is discussed below):

1. As the Pro Bono Institute’s Second Acts program has noted, “Legal researchers and demographers have determined that, over the next two decades, the number of lawyers in the United States aged 50 and older will triple.”
2. Many organizations and bar groups are encouraging older attorneys to move into public interest legal roles after they retire from the “first legal career”. See, e.g., “The Coming Wave,” Harvard Law Bulletin, Fall 2006; and Marc Galanter’s 1999 law review article “Old and in the Way“. The 2002 ABA family law pro bono report noted (at 9): “senior attorneys are a prime source from which to recruit new pro bono attorneys. ” [Aside: Will peridementia — or worse — follow affluent lawyers who retire from their first careers and enter a public interest Second Act? How will this affect their new, at-risk or low-income clients? How closely can or will volunteer lawyers be monitored, and by whom?]
3. The trend of Boomer undersaving continues, making it ever more likely that many lawyers will need to continue working well past “traditional” retirement age. (e.g., Register-Mail/AP, Boomers may face funding shortage: Saving at lowest rate since Great Depression,” Feb. 2, 2007). [Aside: Is it safe to assume that this phenomenon particularly affects “public interest” and “solo” attorneys, who have less income than their professional brethren? What does that mean for their clients?]
4. The factors that are most predictive of delayed retirement — “Lower rates of retiree health insurance offers from employers, higher levels of educational attainment, and lower rates of defined benefit pension coverage” — fit many segments of the legal profession closely. “Why Do Boomers Plan to Work so Long?” (Urban Institute, December 2006)
5. Bar associations are working to convince law firms to end the practice of mandatory retirement for partners, while partners are suing their former firms for age discrimination after being forced out or offered unfavorable retirement packages. Such trends could allow lawyers to keep working longer. See, e.g., “Happy Birthday. Vacate Your Office,” New York Times, December 8, 2006; EEOC v. Sidely & Austin, press release, Jan. 13, 2005; “Freshfields hit with age discrimination claim” (TimesOnline, Jan. 31, 2007; via The Barrister Blog); “Law firms in dock as over-50s file first ageism suits” (The BusinessOnline, Jan. 10, 2007); and “Mayer Brown ‘De-Equitizes’ 45 Partners” (New York Law Journal/Law.com, March 5, 2007), plus Prof. Bainbridge, “Does a Partnership Breach Fiduciary Duties by Firing Partners to Become More Profitable?” (March 2, 2007). update (March 22, 2007): New York State Bar Association Calls for Increasing Retirement Age for Judges (Press Release, March 22, 2007), calling for a uniform 76 years for all judges, and saying the practice of mandating retirement among attorneys in private law firms was “both unwarranted and unwise.”
6. Baby Boomers seem far more inclined than previous generations to deny (or cover-up) the effects of aging (including their gray). They also give very little credit to the ability of the coming generation of professionals (see Washington Lawyer, From the President, Feb. 2007). Ellen Goodman recently pointed out these attributes in her Boston Globe column, “Junior envy,” January 26, 2007, asking “Is it possible that the same generation that famously didn’t trust anybody over 30 when they were 20 doesn’t trust anybody under 50 now that they are turning 60?” And, Goodman notes, “One of the charms of the boomers . . . is how they are managing to age without getting old. My favorite factoid comes from a Yankelovich study showing that boomers define ‘old age’ as starting three years after the average American is dead. It’s a new wrinkle on the 1965 lyric by The Who: ‘I hope I die before I get old’.” [And see “Is Looking Your Age the New Taboo?” (New York Times, March 1, 2007)]
7. With so many of them spending long periods of time taking modern serotonin-uptake antidepressants, Baby Boomers are facing a potentially enormous mental-neurological time bomb. Thus, in his book Prozac Backlash (2000), Joseph Glenmullen, M.D., warns of potential side effects from Prozac and similar serotonin-boosting antidepressants. Dr. Glenmullen points to memory loss problems and structural “silent brain damage” due to the brain’s “backlash” reaction to artificially elevated levels of serotonin. The backlash may make users prone to prematurely develop neurological conditions (including dementia) or leave them with unsafe levels of healthy brain cells when faced with the normal aging process. (see Chapter 1, The Awakened Giant’s Wrath: Risking Brain Damage) [Could this be why so many Boomers seem to have memory problems at a far younger age than their parents did? Or is it the Teflon and microwaves?] Because lawyers are well-known to suffer depression at rates above all other professions, it is safe to say that a large number of us have experienced long periods of articifically-elevated levels of serotonin.

budget monitoring
all of the managers
show a touch of grey

. . . . . by matt morden at Morden Haiku

I strongly agree with pundits who herald the wisdom that can only come with age, and who plead that the elderly be treated with dignity and respect. But, there can be little doubt that many of the mental faculties that are important in everyday law practice are adversely affected by old age. For example, “older adults are not only more inclined than younger adults to make errors in recollecting details that have been suggested to them, but are also more likely than younger people to have a very high level of confidence in their recollections, even when wrong.” See “Older Adults May Be Unreliable Eyewitnesses, Study Shows,” Medical News Today, 25 Feb 2007 (via Idealawg). Moreover, in the vast hinterlands of legal practice in America (outside the realm of elite law firms) — where most lawyers toil and most clients are served — there are a lot of older lawyers who have failed to keep abreast of changes in the law, even in areas where they regularly practice.

For every sage jurist or lawyer who brings glory to the profession, we have all winced over (or smirked at) the courthouse lawyer who has overstayed his welcome in the profession. What will the Bar do to protect our clients (and our profession) when the Overtimers greatly multiply in number over the next couple of decades?

not on the tip of my tongue —
forgetting the name
of the pretty one

………………………………. by dagosan

storm warning
the watercolorist
works in shades of grey

. . . . by Tom Painting from The Heron’s Nest

My primary concern continues to be the same as when this weblog was called ethicalEsq: the welfare of the “average” client, whose lawyers work on Main Street, not Wall Street. The legal profession has never done an adequate job of policing its ethical rules — and that is especially true of the demand that lawyers practice with competence and diligence. (see, for example, this post and that one; and my recent piece at shlep on “Family Law Civil Gideon, March 9, 2007). I’m willing to assume that most large law firms (“BigLaw”, “White Shoes”, etc.) have or will have in place procedures that will help assure that the workproduct of aging lawyers is monitored and competence maintained — with valued partners given the chance to adapt their practices to their changing mental and physical realities. Unless prevented by age discrimination laws, it’s most likely, of course, that financially “unproductive” lawyers will be pushed out by larger firms prior to becoming a competence problem [see below, and the recent flap over “de-equitization” at Chicago-based Mayer Brown, which has provoked concern from Rick Georges and Eric Mazzone, and outrage by Larry Bodine (via LegalBLogWatch)].

With the obvious disclaimer that no generality fits all members in any category, I have much less confidence in solo, duo and other small firms being prepared to deal with the problems of aging lawyers. Despite all the attention given to the BigLaw crowd in NYC, such firms make up 80% of the practicing bar here in New York State. In “SmallLaw” firms, the person deciding what to do about a problematic older lawyer is very likely to be that very same lawyer (or maybe his brother or childhood friend, who will be facing the same issue soon). [An analogous situation is the lack of built-in monitoring and “self-discipline” in solo and duo firms, which has resulted in a higher incidence of theft from clients by lawyers in such firms (see this prior post).]

According to a recent study of the legal profession in Ontario, Canada, the trend of lawyers deferring retirement is most apparent in nonurban areas, and is also more prevalent among sole practictioners — which are “over-represented in the ‘over 55’ age group” — than large firms. Moreover, the trend is “particularly apparent in the personal legal services fields” (real estate, family law, wills, criminal law). “The Changing face of the legal profession,” LawPro Magazine (Vol. 6:1, Winter, 2007; via Stephanie at Idealawg). Clearly, the Main Street legal client has more to worry about than clients of Wall Street/Biglaw as the profession ages.

Under the fold, I look at press, weblog, and periodical coverage of issues relating to the Graying Lawyer, note the general failure to look at the competence/ethics issues, and spotlight a few approaches that have been suggested as possible solutions. If you want some food for thought and a collection of useful links, keep on reading. Ditto if you’d like to help combat the mix of protectionism, pride and poor people’s skills that will surely keep far too many lawyers practicing well past their pull date. If you’re looking for definitive answers, you may already be suffering from peridementia. [Beware (or Rejoice): this essay grew to 11,000 words.]

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