Health / Wellness

Turning The Page

Remember a time when law practice was civil, both in practice and in courtesy? Can we, please, do that now?

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(Photo by Alex Wong/Getty Images)

Whew! The inauguration of our new president, and yes, I am saying “our” new president, happened without trauma or turmoil. We’ve had a lot of that recently, and whether your candidate won or lost the election, the sense of relief is probably palpable for most of us.

Remember a time when law practice was civil, both in practice and in courtesy? Can we, please, do that now? Be civil? Be courteous? Does it really take that much effort? Being a jerk is easy; being courteous and civil is sometimes hard, but it’s the right way to practice. I don’t think most lawyers would disagree. We have all been battered and bruised and now it’s time to work together to solve client problems. (Just a little mediator-speak here.)

One civility issue that arises often (and not necessarily from lawyers) is negative online reviews. What to do? How to respond? I have always thought that responding to negative online reviews becomes a pissing contest, the throwing of gas on an already-lit fire. Since so many people use online reviews to make choices, the issue is how to respond to them, if at all. Is it ethical to respond?

The ABA has issued an ethics opinion on that question. It says that the best practice is to stifle yourself and not respond at all, especially since you cannot defend yourself using any confidential information arising from the representation of any client. As Barbara Streisand found out years ago, it makes more sense to leave it alone than to further broadcast the issue.

I have a short memory for anything I read online unless I print it out or write it down or bookmark it. Do you know how many bookmarks I have that I have never looked at or even remembered that I bookmarked? A rhetorical question.

The fallback position, says the ABA, is to request a “takedown” from the website or search engine. Good luck with that. The last resort, the opinion says, is to respond online. The lawyer could invite the disgruntled commenter to talk privately about the issue (again, good luck with that, since many posters don’t use their true names) or state that the lawyer’s professional obligations preclude any online response. The latter may be “lawyering up,” but it’s what Model Rule 1.6(a) requires. Read Formal Opinion 406 here.

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The past few years, there’s been a national conversation on aging and when it’s time for judges, as well as lawyers, to hang it up, to retire (I hate that word, my image is playing golf in a retirement community — I will now get emails from enraged duffers) or my preferred term, “redirect,” to do other things that will make use of the knowledge and skills gained in a lifetime of the law. The late Berkeley neurobiologist, Dr. Marian Diamond, used that term at an alumni event I attended, and I thought then (and now) it is more apt than current “retirement” usage. Diamond advocated “use it or lose it,” that the brain could continue to develop well into old age. It’s the concept of neuroplasticity (Google it).

Several years ago, the Ninth Circuit Wellness Committee helped to recruit three dozen judges, from magistrates to bankruptcy judges to circuit judges and several retirees, to participate in neuropsychological testing. Some were in their 50s, most in their late 60s, and the oldest was 87. The tests examined attention, memory, orientation, and other neuropsychological factors.

There’s no answer as to when a judge should retire. Where one judge might be in fine mental and physical fettle well into her 80s, another judge might show issues of cognitive decline in his 60s. Who gets to make that call? Blowback is inevitable, so is denial.

Is intemperate conduct on the bench a symptom of cognitive decline, or is it just that the judge is a nasty jurist, whose temperament is consistently unpleasant? How do you know what it might be? Lawyers talk, but are our opinions reliable?

The aging conversation is true for lawyers as well. Should there be a mandatory retirement age for lawyers? Should senior lawyers reduce their practices to make room for mentoring younger lawyers? What if a senior lawyer needs to continue to work for financial reasons? How do you justify cutting off an income stream at a certain age? Since more than one-half of this country’s lawyers are solos, how is cognitive decline to be determined?

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The mental stimulation the law provides is a valid reason for continuing to have a life in the law. Interacting with people (we’ve found that Zoom is no replacement for in-person contact), analyzing fact patterns, and helping people are reasons to keep going, even if it’s not the same role. We need to use our vitality, our knowledge in various ways.

We can hopefully now concentrate on taming the virus, which, as I write this, has killed more than 400,000 of our fellow citizens. It’s as if the entire city of New Orleans, of Tulsa, of Tampa, of other cities across the country had been wiped out, obliterated not by a nuclear bomb but by a virus more deadly than thought possible, except for the scientists who forecast grim results from the beginning.

The virus is front and center on the new president’s agenda, as it should be. I heard that a former client of mine lost four family members in less than a week. Everyone, please mask up. It will not kill you to do so, but it may kill you if you don’t.

Jill 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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