Old People

When Is Too Old To Practice?

Is competence determined in the eyes of the beholder or in the eyes of the holder?

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Super Bowl LIII is history, thank goodness.  Surrounding the game hype was the age old (pun intended) question of whether youth or age would prevail. We have our answer at least for this season. I thought that the Puppy Bowl was far more fun (and not just because my Rams lost, but because the Super Bowl was a dreadfully boring game and the puppies were adorable and available for adoption.)

Several weeks ago, I attended a seminar on the topic of what the State Bar of California now calls “Competence.” The seminar discussed topics such as substance abuse and mental health issues, e.g. depression, anxiety, and the like, which we seem to have more of than what we think we have. The seminar didn’t discuss “competence” in the context of whether lawyers are still competent to practice, not because of substance abuse and/or mental health issues, but because of that dreaded word “age,” aka cognitive impairment.

Yes, we all know that age discrimination in our profession flourishes. Should we now add into the mix whether we should still practice at all? Do we need to retool our practices in different ways to accommodate changes in physical strength and health and yes, cognition?  Sorry, fellow dinosaurs, but those are indicia of being at the age where there are more years behind us than ahead of us.

A recent story in the New York Times told the story of a surgeon who was still performing surgeries at 80. The headline asked this question: when is the surgeon too old to operate? So, when are lawyers too old to practice?

The surgeon was not performing surgery, merely watching at the request of his patient, but he did nod off while watching. Later, that surgeon, Dr. Herbert Dardik, had an “aha” moment on a flight when the “older looking” pilot and captain of his flight came on board. Dr. Dardik hoped the pilot was okay to fly and it hit him that he was that captain in his practice. Whoops. The physician then enrolled in a program at Baltimore’s Sinai Hospital’s Aging Surgeon Program. After the evaluation, he made changes to his practice.

The Program seems to be a combination of combating age discrimination for those still fit to perform surgery and risk assessment for hospitals to determine whether doctors are still fit for surgical duty. 

I think it’s a lot easier to assess a surgeon’s ability to continue to do surgical procedures (dexterity, hand-eye coordination and other physical needs, not to downplay cognition and mental faculties) than it would be to assess a dinosaur lawyer’s fitness to continue in practice.

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Luckily we don’t have physical issues of dexterity, hand-eye coordination and so on, but we do have issues of cognition. Within our profession, the issue of competence has begun to take center stage. At what age, do dinosaurs, and you know I am one, find their competence to practice diminished, if at all, and what, if anything, should be done about it?  Should there be an Aging Lawyers Program?

Many Biglaw firms have protocols in place for deciding when dinosaur lawyers need to take a different role in a firm or retire. However, since the majority of lawyers in this country are solos or small firm practitioners, there are no safety nets for those of us who are on our own. Smarty pants that we are, we can hide cognitive impairment until oftentimes it is too late. However, all is not lost if symptoms of cognitive decline are recognized early enough and treatment sought. Not every cognitive decline means Alzheimer’s or other form of dementia. It could be a sleep disorder, alcohol related brain disease, concussions, and other conditions that are treatable, according to a report of a 2014 conference by the ABA Standing Committee on Professional Liability. 

The report provides an example of a law firm rainmaker whom everyone was afraid to approach precisely because he brought in so much business. By the time his cognition problems were diagnosed, it was too late for both the lawyer and the firm. At what point does making money take a back seat to a person’s health? Just asking.

So, here are just a few of my questions: should there be cognitive testing for lawyers? At what age? What would be the criteria? Who gets to decide whether an attorney should continue practice or be put out to pasture?

For some lawyers, practicing law is their life as well as their livelihood; taking that away could well hasten cognitive decline and even possibly shorten life span. Some lawyers live to work and if they have had satisfying careers, who has the right/power/whatever to take that away from them? Would this be a case of being judge and jury about someone’s career?

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Public protection being uppermost in the minds of lawyer regulatory bodies, who would do the risk assessment as to whether any lawyer, regardless of firm size, is still fit to practice?  Would this be the situation of taking a sledgehammer to a gnat? To what extent would the regulatory agencies make unwarranted assumptions about a particular lawyer’s fitness to continue practice? This is definitely not a situation of one size fits all. Age is no benchmark of competency. We all know moron lawyers who are thirty-five and competent lawyers who are ninety.

Competence now requires an understanding and use of technology. How many dinosaur lawyers understand artificial intelligence, eDiscovery, and all the other things that are now part of the legal landscape? If they don’t have a grasp of the technology, does that necessarily mean that their careers should be over? 

Is competence determined in the eyes of the beholder or in the eyes of the holder? You tell me.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. 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 dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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