Ethical Issues as You Age or Plan for Retirement

We older lawyers often talk about our future, maybe not as much as we relive our past glories, as our careers are mostly behind us. We’re dealing with issues that our similarly aged friends and family members share. These include hearing, hair, and memory loss; aches and pains that were never a problem before; and the questions—the many questions, internal and external—about our plans for the future.

And then there’s retirement. When you do such planning, it’s easy to focus only on the numbers—will I have enough money to stop working? Also consider the ethical questions that inevitably arise as we wind down our legal careers.

Clients will have questions

We lawyers sometimes get personal questions from clients that we choose not to answer, but a retirement question can be a legitimate question for a client to ask. Among the questions older lawyers often hear from clients are:

• Will you be able to handle my estate (asked by testator 15 years younger than the lawyer) when it’s time?
• Can you see me through the end of this litigation?
• Can my children get your advice and help with my business operations when they need it?
• How much longer will you be around for me and my business?

These questions expect that, as lawyers, we can predict our futures or that we agree to disclose information about our health conditions (what’s my longevity likelihood?) or share what may be our incomplete plans—if they exist (when do I plan to retire?).

Truthful answers may cause an early loss of income while we’re still trying to make a living since clients may want to move their legal matters to younger or healthier lawyers. Whether you practice as a solo or in a firm will also affect how you answer these questions.

Consider Bill and Tina

A week after 80-year-old senior partner Bill left the practice in retirement, the now-oldest lawyer in the firm, Tina, at 61, is asked by the firm’s largest client, “So when are you planning to retire?” The ethical issues start to appear for Tina, as for the rest of us.

These two lawyers approached their retirement planning differently and maybe because the younger Tina had to put up with the lack of planning that Bill conducted. Bill quit the practice after he’d made a few mistakes and wasn’t so gently pushed out by the firm’s lawyers—all of whom are younger.

Tina plans to quit the practice before she’s pushed out. She has set aside funds in the firm’s retirement accounts and has a nice nest egg for retirement. Bill also had a nice fund because Tina insisted on the plan, for staff and lawyers, more than 30 years before.

Let’s first look at Bill’s situation. He didn’t plan to retire and would have been happy to die with his boots on, sitting behind the desk. What ethical issues are implicated by Bill’s inactions or lack of planning?

Rule 1.1 competence—Bill’s planning didn’t include assuring clients that his skills would remain effective. He didn’t set benchmarks for protecting clients and discouraged honest conversations about his effectiveness in handling client matters because of his attitude about retirement.

I’m familiar with an 82-year-old lawyer who was questioned about his skills, so he took a neuropsychological exam to prove his skills and competency to his partners. The report said the lawyer had the “capacity and memory of the average 80-year-old.”

The tested lawyer was pleased, but his partners were unsatisfied because a legal professional should have a capacity for logic, memory, and analysis higher than the average person of his age. The doctor refused to opine further.

Knowledge, skill, thoroughness, and preparation are no longer enough to pass the competency test in Rule 1.1. I realize I’m painting with a broader brush than some readers may enjoy, but the issues contained in the comments to Rule 1.1 include thoroughness and preparation and, in many states, maintaining technological competence.

Bill’s plan was, in essence, to leave the retirement decision to one of several groups but not to make it himself. Others who may be forced to make the decision for him include:

• His partners—When they notice his failing skills or his clients do and then call the partners or judge to complain about Bill’s neglect of their case
• The state bar counsel or his defense counsel to the bar complaint—When they convince him to quit before it’s too late
• His doctor—When Bill is hospitalized for health reasons
• His spouse or children—At great cost to the family dynamics, when they have to explain to Bill that he must retire.
• The grim reaper—Who’ll make Bill’s retirement wish come true

Rule 1.4 the duty to inform clients promptly about important information—Among lawyers’ duties is a duty by the lawyer or the firm to keep clients informed about issues that affect their representation.

Bill’s decision to abruptly leave his clients’ futures in the hands of other attorneys in the firm was important information. He should have informed his clients. Lack of planning for what his clients may have needed led to concerns and troubles for Bill’s clients, as it has for other lawyers’ clients.

Included in the cases reported under Rule 1.4 are the Florida case of the lawyer who was undergoing cancer treatments and delegating a client’s case to an associate, thereby violating the duty to share important information. Also, a Colorado case in which the lawyer just quit working on the client’s cases.

Another case involved a lawyer who was suffering from manic depression and, while in a “down” stage, neglected several cases. That led to angry client reports to state bar counsel and the lawyer’s resignation of his license long before he wanted.

In my experience, when retirement is forced on a lawyer, it’s a miserable situation for those who step up and force the lawyer to leave the profession. At least those outside the lawyer’s family are less emotionally involved in the life of the lawyer who hasn’t planned for the future.

Failing to plan is a poor way to address the competence issue since it allows the lawyer to truthfully say, “I’m not going to retire!” The failure to plan attitude isn’t the answer for lawyers or for those around senior lawyers, and it leaves many questions behind.

That declaration—“I’m not going to retire!”—may be an honest statement, but it also tells perceptive clients the lawyer isn’t fully capable of competently helping them with their legal needs. It tells clients their lawyer isn’t a planner, which is admitting a weakness that most lawyers would prefer to hide.

Living the Plan

On the other hand, Tina has her retirement well planned. She’s decided to leave the practice at the end of next year. She’ll timely notify her clients of her decision and advise them that they may choose to pick up their case file or that it will be taken over by one of the several lawyers in her firm whom she’s carefully chosen to match their legal needs.

That won’t entirely prevent ethical issues from arising. Tina may get such questions and comments as:

• Can I count on you to help my family and answer their questions?
• I know you and trust your advice.
• Should I look for a new lawyer now that we’re both gray haired?

How does the ethical lawyer, who has planned and thought about the problems of aging and transitioning to retirement, handle these types of questions about her retirement plan or her health? As always, we start with the state’s Rules of Professional Conduct. What do we find there for assistance?

Rule 1.4 calls on us to “promptly comply with reasonable requests for information.” State ethical opinions shed light on the duty to inform clients when a lawyer leaves the practice, which are generally discussed in the past tense (you left the practice, now tell the clients) or when the lawyer moves from one firm to another (allowing the client to go with the lawyer or to stay with the firm).

There’s also a duty to let clients know if the lawyer quits working on a client’s matter for any good (or not so good) reason.

But nothing in the rules calls on lawyers to alert clients of an impending retirement. They also don’t call for notice of an unplanned serious illness, surgery, or other matter that may affect an aging lawyer.

That makes sense with medical matters. Nobody successfully predicts a stroke in time to alert a client, and most health conditions don’t allow the suffer to predict their occurrence. Tina may be willing to discuss her retirement plans with a spouse or firm partner (maybe), but it’s not a matter most lawyers would willingly prematurely share with courts or clients.

The Problem for the Planner

Comment 7 to Rule 1.4 of the Model Rules of Professional Conduct (in most state’s versions) says, “A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person.”

Most lawyers will admit to a desire to stay busy until we quit working and a further desire to get paid for our work. There appears to be a slowdown in the practice as we age, both in terms of client demands and our desire to work full speed. Giving clients the word that we’ll retire in 18 months may prompt the busy client to protect its interests and convenience, instead of its lawyers, and we must respect that decision.

The lawyer as fiduciary—putting the clients’ interests before our own—gets tested when the questions legitimately start. Some lawyers have it easier than others, but it doesn’t ever get easy.

When asked, we must tell our clients the truth. We may put it in context with the client, but we’re required to avoid causing our client or the court system a problem. We don’t take on the client’s new matter on Tuesday and then close the office for good in retirement on Friday.

The Challenge for Solos

As a lawyer in a firm (mine is three lawyers, so it’s small), I’ll admit that it’s easier to respond to harder questions by saying, “We have one or more good lawyers who are available if I’m out of the office.”

For a solo lawyer, the question can be more problematic. Do you offer the name of a backup lawyer, a competitor, or leave clients on their own to find assistance? Other lawyers are probably not the client’s first choice because your clients are familiar with and appreciate your work. But the ethics of the matter do call for some resolution.

That’s where a solo’s discussion of planning for any absence comes in handy. Let clients know that one skill you have, and that they’ve responded to and benefitted from, is planning for their legal issues.

Then turn that around and advise them that you use the same skills to plan for yourself: “I’ve been planning my family’s future for a while, and I’ll live out my plan as best I can.” You may have to dodge the question of whether the plan goes into effect this month or next year, but you really are duty bound to discuss your answer to their important questions.

As the Preamble to the Model Rules says, “… a lawyer is also guided by personal conscience and the approbation of professional peers.”

Remember the Cleveland Browns great running back Jim Brown. He retired when he was 29, at the end of a season in which he led the NFL in all major rushing statistics, choosing to leave at the top of his game.

If you leave the practice when it’s time—while you have skills in reserve and before others have to apologize for your actions as a lawyer or have to report you to your lawyers assistance program or bar counsel—we promise we’ll speak highly of you and your career. Plan for it.