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Active Or Inactive?

Apologies to Hamlet.

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749120I blew through a drop dead date, fortunately one that wasn’t a statute of limitations, but rather a personal deadline. The State Bar of California told me that I had to decide by December 1, 2024, whether I was going to choose inactive status for 2025. I thought about it, dithered and then the deadline had passed. So, I will be active for the next year.

Active or inactive? That is the question, but not the only question for those of us of a certain age who are trying to decide what, if any role, we older lawyers can play, should play, want to play in this ever-changing legal world, so different from the one that we practiced for so many years. While it’s too late for me to make the choice now for 2025, I weigh the pros and cons of remaining active (after 48 years) or going inactive. The California State Bar doesn’t have a “retired” category. The benefits of going inactive: dues are waived for those of us post-70, and there’s no need to fulfill the MCLE requirements that are due every three years. I have until January 2026 to fulfill mine.

Another inactive advantage is that I don’t have to take the MCLE-required courses. Those include civility (really? We need to be told how to be civil? But times as they are, perhaps it’s necessary). As we all know, just taking a course in civility doesn’t mean that bullying lawyers will change their ways. It’s akin to putting lipstick on a pig.

Many mediators, including me, don’t start with a joint session any more (and that used to be de rigueur). Animosity, hostility, and other unpleasant emotions can derail a mediation at the outset. While the old saw is that you catch more flies with honey than with vinegar, that’s not necessarily the case at the outset of a mediation. Lawyers should set a civil tone in making sure that mediation interactions are, if not cordial, are least civil. I don’t think that one MCLE hour is going to make any difference, but it’s better than nothing.

And it’s not just lawyers who could use some good old civility training or a refresher in the same. The California Commission on Judicial Performance publicly admonished a superior court judge for conduct unbecoming in his efforts in trying to block the renaming of his high school. That conduct included name calling and various inappropriate comments on social media that the CCJP found demeaned the judicial office. Perhaps this judge needs a refresher in civility as well? Donning judicial robes is not a pass for bad behavior. You are probably way too young to know this particular Beach Boys song about being true to your school. This judge took it to an extreme.

Two other required courses: explicit bias and then a separate one on implicit bias. Two more courses that lawyers will check the attendance boxes for, but as this old lady lawyer knows, consciousness-raising takes time and two hours of those courses will not necessarily erase a lifetime of biased thinking and biased behavior. It’s a start, maybe. I think almost any woman or minority lawyer could teach these courses based upon real-life experiences of both explicit and implicit biases. What’s the old line about experience being the best teacher?

In addition to the required hours on legal ethics, the bar requires one hour of competence. Is one hour enough? You tell me. Right now, due to some dogged health issues, I am not taking any clients nor mediating any cases. My bandwidth is not what I want it to be, and I don’t know whether that’s due to illness or, gasp, age! In any event, I don’t think it would be fair to represent clients or to mediate right now. What do other dinosaur lawyers think about that?

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So, given all those reasons, why don’t I just go inactive? Here’s why: if I am inactive, then any advice I may give in whatever situation is UPL, that is, the unauthorized practice of  law. I have former clients who do call for pro bono advice from time to time. However, if I tell them I can’t give them any advice because of the potential UPL consequences to me, their eyes glaze over. “But you’re a lawyer, right? You’re still a lawyer, right? So why can’t you advise me on that?” Er, no. It doesn’t work that way. Nonlawyers don’t get it, nor should they have to. And the last thing I want to receive is a disciplinary letter from the California State Bar. Active it is, at least for another year, when I’ll have to perseverate all over again. But next year I will calendar the drop dead date.

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 [email protected].

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