Old People

Old Lady Lawyer: Competency Is Not A Number

Just as ageism knows no age, neither does competency.

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A few years ago, the State Bar of California decided that it was time to do something about dinosaur lawyers, e.g. those of us who had been in practice for many years and who weren’t relinquishing their practices as perhaps earlier generations had done. However, there weren’t all that many earlier generations since the State Bar didn’t even come into existence until 1927 and many of those in earlier generations were either already taking dirt naps or had gone inactive.

So the State Bar established a working group to explore the issues and challenges facing senior lawyers who may have age-related health problems that could affect their competency to practice. The State Bar Rules of Professional Conduct define competency as “…legal learning, diligence, and the mental, emotional and physical ability to perform legal services.” The State Bar’s working group, at least several years ago, also explored the idea of assessment tests to help evaluate mental competency. Really?

Should there be a multi-state exam for mental competency? How do you evaluate mental competency by testing? Who would determine cognitive impairment of lawyers? Other lawyers? Psychologists? Neuropsychiatrists? Simply because a lawyer can’t remember off the top of her head a statute at issue or a line of cases (isn’t that what legal research is for?) doesn’t signal a failure to be competent. Since I am a terrible objective test taker, if I didn’t score high enough on some test, would I be presumed incompetent to practice? (No snarky comments here, please.) Would I then have to prove to the contrary? How would I do that?

Just as psychological testing in the employment context is a slippery slope and rife with both overt and subtle biases, any attempt to test the mental abilities of lawyers of a certain age would run into a buzz-saw of issues, the Age Discrimination in Employment Act and the Americans with Disabilities Act, just to name a couple that immediately come to mind.

Why is there an assumption that when attorneys reach a certain age, they may not be as mentally competent to handle legal matters as they were thirty years before? Why is there the assumption that all the years of accumulated knowledge, diligence, and yes, wisdom based on experience, goes down the tubes at a certain age?

Just as ageism knows no age, neither does competency.

There are lawyers at every age who suffer from substance abuse that impacts client services. There are lawyers at every age with emotional problems that impact client services. There are lawyers at every age with physical ailment and health issues, including but not limited to medical conditions that affect cognition, that can and do prevent the delivery of competent legal services to the clients. There are lawyers at every age with financial problems who embezzle from client trust accounts. So, why pick on age?

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No one disputes that lawyers who are cognitively impaired should not be representing clients. However, even if direct representation of clients no longer makes sense in a particular case, what about all that institutional memory, all those years of knowledge and experience? Are those just consigned to the nearest dumpster or are there ways to utilize all that knowledge and experience for the good of the profession and for the benefit of clients, albeit indirectly?

Do dinosaur lawyers commit more malpractice than younger lawyers? Do they embezzle more from client trust accounts? Do they forget to obtain conflict waivers when necessary? Do they fail to return phone calls, keep the client informed and so on? Do they do that any more often than the general lawyer population?

While today the focus on dinosaur lawyers seems to be on cognition, there is just as much focus on younger lawyers’ legal knowledge competency. Biglaw doesn’t train like it used to, and smaller firms expect new lawyers to hit the ground running, not just as to legal learning, but business development. How do new lawyers become competent when there may be no older lawyers to turn to for guidance, advice, and just the basic “how-to?” Listservs do serve a purpose, but there’s nothing like being able to walk down the hall and pick the brain of an older lawyer (presumably one not cognitively impaired) to work through a troublesome issue, to make some suggestions about strategy, or even help to spot an issue.

Competency is a shape-shifter. Just like so many other aspects of the legal profession, the definition of competency expands with the times. For example, with the advent of ESI, lawyers must either become competent or hire someone who is to wade through the morass that pre-trial discovery has now become.

There are as many reasons why senior lawyers continue to practice as there are those lawyers. To tag senior lawyers as a class that presumptively becomes cognitively impaired and thus incompetent just because of age is unfair. It’s as unfair as tagging younger lawyers as incompetent, purportedly because they don’t know what they’re doing, when, in fact, they are much more competent about technology and knowledgeable about certain areas of the law that didn’t even exist a decade ago.

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There are lawyers in their late 80s and 90s that I wouldn’t hesitate to call upon. Then there are lawyers in their 20s and 30s that I wouldn’t recommend to anyone. The converse is just as true. Age should be just a number and not a demarcation of whether one is still fit to practice. We learn from Day One in law school that every case turns on its facts. The same should be said for competency.

Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.

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