The New Senior Lawyer: Is Your Bar Ready?

Volume 31 Number 5

By

The task for Loren Golden seemed simple: As moderator, he needed to make arrangements for a first-of-its-kind seminar in March in Chicago for Illinois State Bar Association members approaching retirement.

What happened after that was a little more complex—and quite a surprise—for Golden.

“We sold out. I knew people were interested, but I had no idea,” says Golden, chair of the ISBA Senior Lawyers Section, which was created last fall. “I had friends calling me up saying, ‘Can you get me in?’ ”

As a result, a second Chicago session was planned, along with production of a DVD of the March seminar that will be made available to bar members. Two more seminars in central and southern Illinois were also greeted warmly by bar members.

“People everywhere are getting older and living longer,” Golden says. “For lawyers, this has really hit a nerve.”

Other state and local bars, as well as the ABA, are also sensing a growing awareness of graying. From financial planning seminars and CLE sessions to new committees and pitches for pro bono, bars are taking an active role in reaching out to one of the fastest growing segments of their membership. They’re also looking at ways to keep senior members in bar activities.

And as more and more members of the baby boom generation make their way to the traditional retirement age of 65 over the next few years, the importance and scope of such efforts is likely to grow. What is traditional now might look passé very soon, many bar observers say.

 

The numbers tell the tale

Whether they’re from the U.S. Census Bureau or from bar association surveys, the numbers tell the story: The

largest bloc of the population—baby boomers—are growing older and living longer. According to census figures, the population aged 65 to 74 will nearly double, increasing from 6 to 10 percent of the total population between now and 2030.

Along with old age comes better health care than in the past, which means longer lives. The government predicts that by 2030, the population 75 years and over will increase from 6 to 9 percent of the total population, then rise to 12 percent by 2050.

Bar associations are also reflecting the numbers. Approximately 40,000 lawyers nationwide will turn 60 this year alone, according to the ABA. Also reaching age 60 last year were 134 of the 1,000 or so fellows of the Oklahoma Bar Foundation. In a 2006 survey, the New Hampshire Bar Association found that the percentage of members age 50 and older jumped from 31 to 40 percent over five years. About 60 percent of Oregon’s lawyers are over age 45, according to the Oregon State Bar. In neighboring Washington, nearly 10 percent of the state bar’s 29,000 members are age 60 or older.

“I think the biggest issue right now is that people haven’t really thought about it that much,” says Jim Nolan, a past president of the Maryland State Bar Association who has helped produce retirement seminars for the National Conference of Bar Presidents. “Well, we need to start thinking about it. Bar associations shouldn’t wait until their members reach retirement age.”

Considering the wave of potential retirees and the number of issues facing lawyers as they approach retirement, it’s no surprise to Nolan that more bars are beginning to take notice. He also serves as the NCBP liaison to the Second Season of Service initiative (www.abanet.org/secondseason) created by ABA President Karen Mathis, which encourages support and assistance for lawyers as they retire and as they seek pro bono opportunities. Second Season of Service has evolved to become, in part, a clearinghouse where state and local bars can share information and best practices in what, for some bars, is new or somewhat unfamiliar territory.

“A lot of us need to reactivate our senior lawyer sections,” says Patricia Yevics, director of Law Office Management Assistance for the Maryland bar. “It’s an overlooked section of the bar association, and we almost need to redefine senior lawyer.”

 

Fighting the ‘senior’ stigma

That very issue was part of the discussion at the ISBA, when bar President Irene Bahr appointed the Special Committee on Master Attorneys to look at how the bar could reach out to senior members.

“Did we want to call ourselves ‘master attorneys’ or ‘senior counselors’? Did we want to base it on age, or years of practice? We’re trying to reach a lot of attorneys,” says Golden, 64. “We knew that [becoming a senior lawyer] was going to affect a lot of aspects of life.”

What they settled on was the Senior Lawyers Section, open to lawyers 55 and older or in practice for 25 years or longer. Among the issues at the seminars—which are also likely to be areas of concern for the section—were: sale of a practice, pro bono, mentoring, file retention, insurance, and staying connected with the practice of law.

“I think our mission is to be inspirational, so there’s some sense that lawyers in their 50s and 60s are not alone,” Golden says. Agrees Yevics, “It’s very easy for a lawyer to feel isolated.” Many senior bar members do not want to be seen at a bar program concerning retirement, she adds, for fear of showing that they are “slowing down” or that they are not as prepared for retirement as they should be.

But Yevics says bar members are showing more interest, noting an increase in the number of calls about of counsel arrangements that can let lawyers in a practice spend more time away from the office. Discussions about retirement are also increasing at the bar’s events for solo practitioners, she notes.

The MSBA’s Senior Lawyers Section is continuing to offer more programs aimed not only at helping lawyers retire, but also at helping them explore other options beyond full-time practice.

That is also the purpose of Ken Horoho’s “Seasoned Lawyer Project,” one of his top initiatives as the 2006-07 president of the Pennsylvania Bar Association. A special committee named by Horoho is working with other key bar committees and sections, such as the Senior Lawyers Committee, the Young Lawyers Division, the Solo and Small Firm Practice Section, and the Commission on Women in the Profession. The aim of the project is to find areas where experienced lawyers can participate in pro bono and mentoring programs.

“They’re walking gold mines of information,” Horoho says. “I tell our younger lawyers, ‘Go buy them lunch and let them tell a few war stories.’ ”

Horoho also hopes the committee will offer ideas for programs to assist senior lawyers as they contemplate retirement. “I don’t think people, quite frankly, are thinking about it enough. That’s part of why I set up this committee,” he explains. “But as I travel the state, I sense that I’m getting some more awareness.”

 

New committees, fresh energy

Anthony Palermo, a 73-year-old attorney in Rochester, N.Y., has been beating the retirement awareness drum at the state and national levels for many years. He, too, is sensing a change. He saw it recently in nearby Buffalo, N.Y., where he helped the Bar Association of Erie County’s newly launched Senior Lawyers Committee host its first retirement seminar for members, focusing on practice continuity.

“There had just been a major snowstorm, and there were a lot of other things going on that weekend, but we had 125 attorneys turn out,” he says. “Seminars, manuals, group meetings, and bringing small firms and solos together with potential successors—[these are] issues that have always been there, and we’ve ignored them. I think bar associations are paying much more attention to this now.”

A past president of the New York State Bar Association and the current chair of the ABA Senior Lawyers Division Practicing Senior Lawyers Committee, Palermo has been instrumental in writing the state bar’s retirement manual for lawyers.

Other state and local bars are also showing greater interest in the issue; for example, the Los Angeles County Bar Association has surveyed members about establishing a senior lawyers section, and the Connecticut Bar Association and the Memphis Bar Association both started a senior lawyers committee in the last year.

Some bars are also forming groups to look into policies and regulations that may negatively affect senior lawyers. One of these is the New York state bar, where President Mark Alcott has formed two special committees and a task force that are expected to issue reports and recommendations later this year.

One special committee will examine the issue of age discrimination and the mandatory retirement policies in place at many firms. “That’s the great irony,” Alcott says. “As we’re living longer lives, the mandatory retirement age is going lower and lower [at many firms]. We’ve called on the profession to eliminate the practice.” A related task force will look at mandatory retirement ages for judges in New York. The retirement age is currently set at 70 for the state’s highest court, the Court of Appeals, and Alcott and others believe this policy often deprives the justice system of years of experience and wisdom without any indication of failing health or faculties.

Another special committee will look at how senior lawyers can become involved in pro bono and mentoring, and will work to develop CLE and other programs aimed at helping bar members as they head toward retirement. The special committee, Alcott says, might evolve into a senior lawyers section.

“We’ve gotten so caught up in serving our clients that sometimes our own needs have been put at the bottom of the list,” Alcott says. “As the demographics suggest, this issue will become more compelling as time goes by.”

The Chicago Bar Foundation has had some success matching senior attorneys with pro bono programs for the last four years, according to Executive Director Robert Glaves (see “No rocking chairs: A look at the new retirement,” page 12). But it seems senior lawyers were craving something else, too: Once the foundation and the Chicago Bar Association began offering programs touching on issues such as financial planning and closing a practice, “we’ve gotten good turnouts, a lot of interest,” Glaves notes.

At the national level, the ABA Senior Lawyers Division and the ABA Commission on Law and Aging are each involved with promoting programs and examining issues affecting senior lawyers.

Helping lawyers wind down and/or sell a practice, find part-time of counsel arrangements, get more information on investing and finances, and question mandatory retirement are among the issues the SLD is becoming more actively involved in, says Walter Burke, the incoming chair of the division.

“For many state bars, this is brand new territory for them,” he says. “We’re trying to build up knowledge and experience. We bring a national perspective to what is a local issue.”

The Commission on Law and Aging has developed a clearinghouse of rules for practicing senior lawyers, whether they are doing paid or pro bono work. One of the commission’s goals is to encourage all states to adopt separate rules for emeritus lawyers who have retired from active practice, but who can perform pro bono work for civic or service organizations. Currently, just 19 states and the District of Columbia have such rules.

“There is tremendous potential for emeritus attorneys to play a role in pro bono,” says Holly Robinson, associate staff director for the commission. “What can a state or a local bar do to make it attractive to have a lawyer gain emeritus status? It can be a recruitment tool.”

 

More than lunch and golf

And keeping senior lawyers involved in bar activities can also provide an important resource for the bars themselves, as they, too, must wrestle with the issue of a demographic drain from retiring members. That’s where an active senior lawyers committee comes into play, says the MSBA’s Yevics, which is why the committee there has taken on a larger role.

“The world has changed dramatically,” she says, and it may no longer be enough to offer senior lawyers the occasional luncheon or social outing.

For example, Nolan adds, the MSBA recently launched an annual meeting for past bar presidents, many of whom are retired or are approaching retirement. “There were people who were just thrilled to be invited,” he says. “The mere fact that lawyers are retiring doesn’t mean that they can’t give back or that they can’t contribute. Bar associations can help them stay involved.”

The bar association, says the ABA’s Burke, is the prime place for senior lawyers to connect and discuss any issues that affect them, since lawyers are most likely to talk about and tackle such matters with those people they’re most comfortable with: other lawyers. And as long as bar associations large and small look seriously at the retirement issue, then interest—just like the inevitable demographics—should continue to grow.

“The perception that this is just a bunch of guys playing golf is dead wrong,” Burke says. BL

 

 

BAR LEADERS SHARE SUCCESS—AND CHALLENGES—AT MIDYEAR

 

At a joint workshop called “Facilitating the Pathways to a Second Season of Service” in Miami in February, members of the National Association of Bar Executives, the National Conference of Bar Presidents, and the National Conference of Bar Foundations heard firsthand from bars that have been trying to assist senior lawyers and guide them toward pro bono service.

Mark Alcott, president of the New York State Bar Association, shared some of the same information as in “The new senior lawyer: Is your bar ready?” and made the point that mandatory retirement policies are related to an overall culture of age discrimination at many firms. Age discrimination is not just a problem for senior lawyers, he stressed, noting that while a firm typically has many lawyers who are in their 20s, there is often a sharp drop-off once those lawyers enter their 30s. “They are victims of the ‘up and out’ policy,” Alcott said, explaining that lawyers are often given a certain amount of time to move up the ranks at the firm and are then let go or encouraged to leave if they have not made partner.

Also common at law firms is a noncompete clause that sets restrictions on where a lawyer can work after leaving the firm. Often, Alcott said, a lawyer who is out of a job because of the “up and out” policy or a mandatory retirement age faces great difficulty finding another job because of the noncompete clause.

Age discrimination pervades our culture, and not just law firm culture, he added. “An otherwise fair-minded legal consumer who would never say, ‘I want only a male, white, straight lawyer on my case’ will say, ‘I want only a younger lawyer on my case,” Alcott said.

Also presenting at the workshop were Judy Johnson, executive director of the State Bar of California, and James Sandman, president of the District of Columbia Bar. Both bars have programs that direct senior lawyers toward pro bono opportunities, and both gave attendees a closer look at their progress and their challenges.

Enthusiasm—but how to focus it?

The California bar’s emeritus program was established in 1987 to help lawyers transition to a different form of practice, Johnson said. Lawyers seeking emeritus status need to have been active in three of the past eight years, must have had no disciplinary action in the last 15 years, and, going forward, must earn 25 MCLE credit hours in a three-year period.

In return, their active dues are waived, as is registration for the bar’s annual meeting, and the emeritus lawyers are covered under a directors and officers policy and are routed toward pro bono opportunities with qualified organizations. The bar’s biggest CLE provider provides a “passport” that allows free CLE for emeritus lawyers.

It’s a bit disappointing, Johnson said, that despite all these benefits, only 94 lawyers were participating as of 2006. That’s not a lot of people, she noted, for a state bar of more than 200,000 members.

The problem, Johnson suspects, is not a lack of enthusiasm, but instead, a lack of infrastructure and guidance that seems to go beyond what her bar can provide by itself. California is a big state, she said, which makes it tough for the bar to do a lot of training for the emeritus lawyers entering pro bono service, or a lot of monitoring to make sure a good match has been made. And the problem, she added, is that legal services organizations themselves often lack the people, time, and other resources needed to provide this type of support. Further, she said, while it makes sense to direct emeritus lawyers only toward qualified legal services organizations, she wonders if there might be more need elsewhere, such as by taking on class-action suits.

Johnson is not sure what the proper mechanism might be, but said she thinks a strong, structured training program is a must if efforts to route senior lawyers toward pro bono are to succeed. Besides covering substantive law in an area of practice that may well be unfamiliar to the emeritus lawyer, Johnson said such training must address what she called “the great cultural divide between volunteers and the poor folks in need of legal representation.” Also important, she noted, is to train and support the emeritus lawyer in working with clients who are often “overwhelmed and beset by a variety of problems,” not just a single legal matter. One help, she noted, would be a California-specific manual on all aspects of poverty law.

Despite the challenges, Johnson said, she is excited by the “unharnessed potential among baby boomers as we retire.”

“I think the challenge for us is to provide the vehicles for that type of volunteerism,” she added.

Broad appeal

It’s all in the match, Sandman said—or at least, making a good match between volunteer and service opportunity can head off a lot of problems and can also help recruit more senior lawyers to volunteer. A happily matched volunteer is the best advertisement for the D.C. Bar’s Senior Lawyer Project, he noted.

One advantage his bar has, he said, is that it is able to do a lot of the matching and hand-holding that can be a challenge for a bar that serves a large geographic area. Such work is time- and labor-intensive, but well worth it, he said. Another advantage, he added, is that his bar tends to attract members who are interested in pro bono service, so it seems natural for them to continue serving once they retire.

Also key to the success of the project, he noted, is that the word senior is defined very broadly. Lawyers who are 53 or older can participate, regardless of whether they’re retired or are still in active practice. Agreeing with Johnson’s assessment of the enthusiasm among baby boomers, Sandman explained, “This is a very receptive audience, and we don’t want to limit the audience we’re appealing to.” When boomers went to law school, he noted, many were involved with civil rights, public interest groups, and legal services organizations.

Many of the legal services organizations see a real benefit to working with lawyers who are still in practice, Sandman said. With the firm’s blessing, of course, the legal services organization can benefit from the connections the volunteer has within the firm, and from the volunteer’s access to LexisNexis, work space, and other resources.

To tap the pool of lawyers who meet the age requirement and are not fully retired, Sandman said, the bar does a great deal of outreach to law firms, government agencies, and corporations.

Also broadly defined, he said, is the amount of time required to participate in the project. In part because the bar wants to accommodate lawyers who are still in full- or part-time practice, the Senior Lawyer Project offers service opportunities all along the spectrum, from volunteering full-time for a particular organization—becoming almost an employee of theirs—to taking a single case at a time.

And volunteers need not work with a legal services organization if that’s not the best fit for them, Sandman said. For example, if a volunteer wants to address particular societal problems by serving as general counsel for a community organization, the project will help that volunteer find a match.

Sandman agreed with Johnson that training is critical in overcoming the “very significant fear factor” that arises when a senior lawyer faces working with clients with complex problems and possibly in an unfamiliar area of law. Some of the best guidance, he noted, can come from the lawyers, often young, who work for the legal services organizations. And because legal services lawyers typically don’t experience the type of mentoring that has been traditional in law firms, they benefit, too, he said.

“They don’t always have the opportunity to have role models, or people looking over their briefs with them,” he explained. “This is a concrete way to combat the lack of formal mentoring.”

—By Marilyn Cavicchia

 

NO ROCKING CHAIRS: A LOOK AT THE NEW RETIREMENT

One of the proudest achievements in Dick Kohn’s legal career came just a few years ago, after he retired as an executive at a large mortgage loan servicing company in 2001. It happened while he was a volunteer lawyer helping the poor in Chicago.

“There were two elderly sisters who had a drug-dealing grandnephew who forged deed documents and borrowed large amounts of money,” he recalls. “We went to court and got title back to their house. That was one of the high points of my time here.”

Kohn, 73, is not the retiring type. That’s why, with some research and some assistance from the Chicago Bar Foundation and the Chicago Bar Association, he decided to join the Legal Assistance Foundation of Metropolitan Chicago as a full-time volunteer, helping low- and moderate-income homeowners avoid foreclosure and predatory lending practices.

“I’m delighted to be able to do something to help people and still be near my home and family,” he says. “I’ve seen too many people retire and have nothing to do, and often, they meet their maker prematurely.”

Senior lawyers like Kohn are critical to the mission of the Legal Assistance Foundation and other organizations the CBF and CBA work with to match senior attorneys with pro bono work.

“We have some terrific people who are extraordinary,” says Sheldon Roodman, executive director of the Legal Assistance Foundation. “Each of them has niches. It’s worked out pretty well for us.”

Chicago Bar Foundation Executive Director Robert Glaves says the organization is working to make the program even easier for senior attorneys by lobbying the state Supreme Court for changes that would allow lawyers to do pro bono work without full licenses. “We’ve had some great success with the program,” he notes.

While many senior lawyers are active in pro bono, others are just, well, active. Take 86-year-old Alex Bensinger of Stroudsburg, Pa., honorary chair of the Pennsylvania Bar Association’s Seasoned Lawyer Project.

“I’m still working part time, practicing in my daughter’s office a few days a week,” he says. “Volunteer work is a very important field, and I enjoy helping young lawyers. I give them some guidance when they call.”

His advice for lawyers contemplating retirement: Stay active. “I still ski downhill,” he says with a laugh. “Just slowly.”

In New Mexico, senior lawyers are active in recording an oral history of the law in the state. “We started the Senior Lawyer Division several years ago and I thought, ‘We really should be doing something,’ and this was very well received,” says Anita Miller, a bar member who also serves on the ABA Commission on Women in the Profession.

Senior lawyers are among the trained interviewers and interviewees for the project, which is modeled after a similar oral history project on women lawyers done by the ABA.

“We’ve had receptions and meetings, and I think it’s really going to rejuvenate interest in the senior lawyers,” Miller notes.

—R.J.D.

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