When It's Time To Say Goodbye: Partners, family members must step in to counsel seniorlawyers with waning abilitiesAuthor(s): JILL SCHACHNER CHANENSource: ABA Journal, Vol. 85, No. 2 (FEBRUARY 1999), pp. 82-83Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840665 .

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IN THE OFFICE

When It's Time

To Say Goodbye Partners, family members must step in to counsel senior lawyers with waning abilities BY JILL SCHACHNER CHANEN

At the age of 77, Harold Wren is of counsel to two Louisville, Ky., law firms and still maintains an ac tive estate planning practice.

But he knows the day will come when age will impede his abil ity to work in his beloved profes sion. And to deal with that in evitability, Wren has made a deal with a longtime friend to tell him that it is time to hang up the shin gle. "I've told my law partners that I hope my friend outlives me," he says, "because if he doesn't I won't have anyone to tell me it's time to quit."

As Americans continue to live longer, healthier lives, many senior citi zens are choosing to work well past the tradition al age of re tirement.

Some stay on for purely fi nancial rea

sons, but a

growing number of professionals continue to work late into their lives because their identities are so intertwined with their careers. For them, being forced to give up their practices because of old age would be tantamount to giving up their lives.

"At some level of consciousness a lot of the senior lawyers are aware of [the identity issue], and it is very scary for them to move outside the comfort zone that has defined them," says Denver career counselor Samuel Kirk of Samuel Kirk & Associates.

But at some point the natural deterioration of mind and body may require that a lawyer call it quits before he or she is otherwise ready

?financially or mentally?leaving family, clients and colleagues ill prepared to talk to the senior law yer about the need to retire.

The fact that Wren has chosen to face the inevitable and come up with a plan for dealing with it makes him something of a standout in a crowded field of prac ticing senior lawyers. Few make similar preparations but that's not to say that they have not given any thought to th^ il future. A re

cent sur

vey, in fact, of the aba's Senior Lawyers Division revealed that the No. 1 concern of the membership was how senior lawyers can recog nize signs of their inability to prac tice law anymore.

"It is a very real problem," says Wren. "Everyone hates to have to tell someone that they are no longer cutting it."

Avoidance Not the Answer One Maryland lawyer who pre

fers not to be named still wishes she had gotten past such discomfort and acted when a senior lawyer in her community continued practic ing for years after local lawyers concluded he should retire. She ad

mits she didn't know how to broach the issue with the man, particular ly because he had been her mentor. Instead she just hoped for the best.

It didn't come. The senior law

HAROLD WREN has made plans to quit his practice when he is "no longer cutting it."

yer, who continued to attract cli ents but was unable to keep up with the pace of his practice, often forgot to appear in court, missed

meetings and failed to respond to pleadings or letters, among other things. When the man died unex

pectedly last year at 83, he left be hind stacks of files and boxes with out any semblance of organization.

"I kept hoping that one of our

judges would take him aside and say, 'Enough is enough, you have to stop practicing law.' But it didn't happen," says the younger lawyer, adding that she suspects several malpractice claims may be filed against the dead lawyer's estate.

While fear often gets in the way of delivering the unpleasant news to elderly lawyers, there is

82 ABA JOURNAL / FEBRUARY 1999 ABAJ/JEANNE FREIBERT

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also a danger of doing the deed without the sensitivity that is es sential to minimize hurt feelings and misunderstanding.

There is no one method to dis cuss the subject, but there are defi nitely approaches that should be avoided, says Barbara Harper, di rector of the Lawyers' Services De partment for the Washington State Bar Association. "Just grabbing [people] by the scruff of the neck does not help whether they are young or old," she says.

In general, Harper advises people to avoid flatly accusing a senior lawyer of bad behavior or

pointing out only what is going wrong at the moment. Instead she suggests placing age-related prob lems into the perspective of an en tire career.

Many law firms have institut ed mandatory retirement policies to deal with the age issue. But al though these policies make the dif ficult discussions unnecessary, they can fail for several reasons.

For one, a bright-line, age based policy fails to acknowledge each person's capabilities. It is im

possible to classify a segment of the population's abilities by age, says Aliza Kolker, a professor of soci ology and gerontology at George

Mason University in Fairfax, Va. More important, mandatory re

tirement policies do nothing to help deal with the trauma that senior lawyers may experience when their identity is suddenly yanked away by their law firm.

J. Hoult "Rip" Verkerke, a law professor at the University of Vir ginia, adds a different cautionary note. Federal law prohibits manda tory retirement for associates and nominal partners who have no

management control. "It could be an expensive mistake," he says.

Avoid Abrupt Endings Harper, who advocates policies

that help a senior lawyer make a transition from the active practice of law to retirement, cautions law firms about their enforcement of any retirement-related policies.

"The elderly lawyer has to be reminded of it from time to time so it just does not come crashing into him," she says. "You cannot just say, Tou are doing a bad job now, and oh, by the way, we have this policy and you have to be out of here.'

"

In some respects, retirement is more difficult to discuss than a

drug or alcohol problem, notes Har per, because you are dealing with the end of a major portion of a per

son's life. 'With drug or alcohol prob lems," she says, "you have to talk about ending a specific behavior."

In an ideal world, Harper says, all firms should have a policy on aging and retirement. The policy might require lawyers, once they reach a certain age, to meet with a career counselor and evaluate their ability to practice on a full-time basis. The policy also might require lawyers to cut back on law practice at a certain age and, finally, set a

mandatory retirement age. "It takes the emotion out of

it," she says. "But unless that hap pens you can wind up with very elderly people doing things that they maybe should not be doing. It does not mean that they cannot function. It just means they should be doing different things, like staff ing a legal hotline or serving as a

mediator."

Kirk agrees, saying it is cru cial for all lawyers to take on more

responsibility in managing their own careers, even in terms of re

tirement. "We believe that one of the principal antidotes to this is

having a career checkup every three years so that you become em

powered to manage your career when you identify shifts in your standards."

How to break the news and not break a heart Few law firms have instituted any

policies short of mandatory retirement that are aimed at helping lawyers

make the transition out of a full-time law practice. Most senior lawyers are left to founder, having been ostracized by their partners, colleagues and clients.

In the absence of a policy, Michael Sweeney, a program attorney for the Oregon State Bar's Attorney Assistance Program, recommends an "intervention" to discuss retirement with a senior lawyer. In an intervention, a group of people close to the attorney come together to confront him or her with problematic behavior. The model calls for the process to be done in a

caring, yet straightforward manner under the direction of a third party trained in facilitating interventions.

While many see interventions more as drug- or alcohol-related, the model is good for any situation in which a difficult issue must be discussed in a

respectful and caring manner and a definitive outcome must be reached.

Sweeney recommends that, if the

issue is forced retirement, the intervention be limited to members of the senior lawyer's firm, because it

makes the process "seem more like a partnership meeting."

Solo practitioners are a greater challenge because few people have direct, daily contact with them on a

professional basis, he says. Colleagues and family can be included in an intervention for a solo practitioner.

In an intervention, tone is of the utmost importance. The assembled group needs to be kind without being condescending or confrontational, says Barbara Harper, lawyer services director for the Washington State Bar Association. The group should discuss the issue of retirement in the present, using specific current examples. They must have a goal for the senior attorney, whether it is to stop practicing law, work under the supervision of another lawyer or maintain an office in the firm but not practice law.

Most important, says Samuel Kirk, a Denver career counselor, is

helping senior lawyers focus on what to do with their time in the future.

There hasn't been very good modeling for current older attorneys," Kirk says. "The model has been to sit on a front porch rocking chair or travel to Europe with their spouse.

"But that is a rather sedentary model and does not require them to call on the skills they have developed over the years, nor does it provide them any opportunity to continue to achieve or be compensated for their achievements."

Kirk advises senior lawyers to

reacquaint themselves with their own values, interests and personality traits to find a new outlet for their skills. If that outlet meshes with their values, interests and strengths, they are more

likely to feel they are still achieving something in their professional lives.

The payback, while not

necessarily a monetary one, may be all a senior lawyer needs to feel richly compensated.

?fill Schachner Chanen

ABA JOURNAL / FEBRUARY 1999 83

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