Lawyers must recognize when their skills 
are deteriorating.

I am a lawyer in the latter part of my 60s and I intend to keep practicing, hopefully for a number of years. What are the ethical considerations an older lawyer or senior member of the bar must think about?

Because of the nature of being a lawyer, many lawyers refuse to accept the fact that they are mortal like everyone else. They tend to think they will continue to practice forever. This is particularly true of trial lawyers. Major firms often have retirement policies, but the small firms or the sole practitioners are unto their own. It is always a shock to hear of a friend or colleague who has died suddenly and is no longer there.

Disciplinary counsel, particularly in recent years, have become aware of the problems of lawyers who have practiced beyond the time they should, or are handling cases that they could have done well in their prime but should not be doing now. This is a rather more recent phenomenon. In the past, many lawyers did not live past their early 70s. But with modern health advancements, lawyers can live a long time and function fairly well.

Disciplinary counsel are often in a difficult situation when they receive complaints from judicial officers about a lawyer who just isn’t cutting the mustard anymore or perhaps shouldn’t be in the courtroom, although still perfectly able to write wills and things of that nature. It is very difficult to tell an individual who has been independent all of his or her life that it’s time to step aside. It is also very sad to see a lawyer who practiced for 50 or 60 years and did very well have to end his or her career with serious disciplinary issues or be placed on suspension.

Another reason more senior members of the bar are still actively practicing is that many of them are financially unable to retire. There are very few lawyers who are sole practitioners who have pension funds. The days when lawyers invested in real estate and lived off their real estate investments are long gone. Public service lawyers have pensions and so do the big firms, if the firm hasn’t gone under, but many of the smaller firms with fewer lawyers don’t. Whatever pension many lawyers have, they have spent on the education of their children. With the off-the-wall, overinflated tuition and the need for a lawyer’s children to go to both college and either law school or graduate school, very few lawyers have much left by the time they reach their late 60s and early 70s, unless they are very fortunate.

Having said that, every lawyer has the responsibility to take certain ethical steps to protect their clients as they grow older. This is particularly true with small firms.

Unfortunately, the Rules of Professional Conduct contain little guidance as to the obligations of a senior attorney. In the Rules of Disciplinary Enforcement, there are procedures to have a senior lawyer who is no longer able to practice placed on inactive status because of a disability. This procedure is for a conservator to be appointed. But those are extreme procedures.

The Rules of Professional Conduct under Rule 1.1 require competence, and under Rule 1.3 require diligence. Lawyers have to be aware they must be able to act accordingly or they should start to slow down their practices. This is particularly true of trial lawyers. Good trial lawyers have that very quick and intuitive way of trying cases. But if cognitive difficulties associated with age delay or slow down that quickness, a trial lawyer has to know when to stop. Oftentimes, a good trial lawyer can continue because of his or her experience, but at some point a lawyer must be aware of when he or she should no longer be walking into a courtroom. The comment to Rule of Professional Conduct 1.3, titled "Diligence," deals with an aging attorney. The comment reads as follows:

"To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity of applicable rules, that designates another competent lawyer to review clients’ files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate, protective action. Compare Rule 28 of the American Bar Association’s Model Rules for Lawyers Disability Enforcement providing for court appointment of a lawyer to inventory files and take other protective action in the absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer."

Although this comment obviously deals with a severely disabled lawyer, it also has a requirement for lawyers to recognize their mortality and perhaps form a relationship, even informally, with another sole practitioner or small firm in the event the lawyer is unable to continue. Obviously, a healthy lawyer who is in his or her 60s or 70s perhaps doesn’t have to do that, but a wise lawyer would at least have someone who is available to step in, if only for the short run.

The Rules of Professional Conduct were also amended to make it easier to sell a law practice. Under Rule 1.17, a practice can be sold, but only if the lawyer ceases practice. There is no longer the need for a lawyer to be totally disabled or dead for the practice to be sold. But if a lawyer sells a practice, then he or she cannot engage in the private practice of law. The lawyer can work for a government agency if he or she wishes. But the sale of a practice is a good thing for a lawyer or a lawyer’s estate because it might provide needed income.

A lawyer also must ensure that files that contain important papers of clients are in places that can be easily located and perhaps there should be instructions if something should happen to the lawyer. For instance, lawyers write many wills. Many lawyers will keep the original will, although that practice has long been discouraged. If the lawyer does have original wills, the lawyer should have those files readily and easily accessible, perhaps with instructions to the secretary or others to notify the clients upon the death or serious disability of the lawyer so those files can be picked up by the individual clients. For all active files, the lawyer should at least have a plan for the office staff to notify all clients of the lawyer’s death or disability so files can be picked up.

There is no defense to neglect or not handling the case properly or not communicating with a client because of old age. A lawyer has to be able to function if the lawyer chooses to continue to handle cases. But a lawyer also has to recognize when he or she is no longer able to perform as well, particularly lawyers who are active courtroom lawyers.

Just like a professional athlete, at some point, if a lawyer is no longer able to function as well, the lawyer has to recognize his or her new limitations and perhaps voluntarily stop taking cases.

Many older lawyers deal with these issues by slowing down their practices and cutting overhead.

But a lawyer has to recognize that he or she is going to get older and, unfortunately, with old age sometimes there comes the weakening of cognitive skills.

It is very difficult, particularly for a trial lawyer whose whole life is based on independence and helping people and knowing what to do, to recognize that he or she can no longer do that. Trial lawyers are sometimes the hardest cases to convince that they should not be walking into a courtroom with any regularity.

Even those trial lawyers who are older and are very sharp might not have the physical stamina necessary. The practice of law is a very physical game. The lawyer has to have a lot of energy. When one is on trial, it’s a long day and a long night and little sleep and the next morning it starts all over again. Lawyers have to be able to do that to adequately represent a client.

The bottom line is every lawyer should take steps to protect their clients’ interests through an agreement with another firm and also specific instructions to office staff. Every lawyer also must recognize when perhaps they shouldn’t be handling these cases. It is a very difficult, but important, process.

In the past, older lawyers would associate with firms in semiretirement. But that has been more difficult to do in recent years and many firms don’t really want older lawyers as mentors or helpers. It is a different world out there now and young lawyers think of the future and don’t have a real sense of the past and its value.

In conclusion, there are ethical steps lawyers can take and every lawyer should consider those as they age. On the other hand, a lawyer who is healthy and functioning well and wants to practice in his or her 70s or 80s should do so because it is a wonderful profession. But every professional must remember the clients’ best interest is paramount and the lawyer’s ego should never cloud the hard and cold judgment when it is time to slow down.

Lawyers should always maintain legal 
malpractice insurance.

Do I have to put the fact that I do not have malpractice insurance in my fee letter or fee agreement?

Surprisingly, lawyers who do not have legal malpractice insurance are not advising their clients of that fact. There is no requirement in Pennsylvania to have legal malpractice insurance, although every lawyer should do so. It is only fair to the client.

Even the best lawyers make mistakes and, if a mistake is made, the client should be compensated through the insurance coverage that is available. It is not that expensive, particularly for a sole practitioner. Malpractice carriers allow lawyers to finance the payment over a period of months, so there is really no excuse for a lawyer not to have professional liability insurance. This is particularly true in this modern era where a mistake can oftentimes cost the client a lot of money or create havoc in a client’s life.

But if the lawyer doesn’t have malpractice insurance, there is still a requirement to notify clients of the lack of malpractice insurance. This seems to be honored in the breach by many small firms and lawyers who aren’t apparently aware of this requirement that was introduced several years ago. But this notification requirement is not new anymore. There is no excuse not to comply with the notification requirement.

The requirement is found in Rule of Professional Conduct 1.4(c):

"A lawyer in private practice should inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing of any time a lawyer’s professional liability insurance drops below either of these amounts or the lawyer’s professional liability insurance is terminated. A lawyer shall maintain a record of those disclosures for six years after the termination of the representation of a client."

Therefore, the rule is very clear. An attorney must have at least $100,000 per occurrence and $300,000 in the aggregate of professional liability insurance or else he or she must notify the client. If there are periods of time where there is no insurance coverage, then the lawyer must notify all existing clients. The notification letters have to be maintained for six years after the end of the representation. The actual language to be used in the notification is set forth in the comment to Rule of Professional Conduct 1.4. Under Comment 9, there is a proposed letter with language. The language under Comment 9 should be utilized.

But to answer the question, there is no requirement to put this in the fee agreement. Obviously, that is not a bad place to put it because then the client has it. The notification can be either a fee agreement or can be a separate letter, but it has to be in writing. It must be given timely. In other words, at the end of the representation is not good enough. This notification requirement is important because clients need to know whether the lawyer has coverage. That could be a factor in not hiring a particular lawyer.

Finally, if a lawyer is going to get malpractice insurance, it is hoped that the lawyer would consider getting more than the minimum amount required to avoid having to send the letter. In this day and age, $100,000 doesn’t cover a lot of potential damages. It also leaves the lawyer exposed. The wise lawyer would have at least $1 million to $2 million in coverage, if not more. The lawyer has the opportunity to decide on the deductible of $2,500 or $5,000 or $10,000 or more. The deductible is an important concept also because if there is a suit, then the lawyer has to pay through the deductible and that is usually the amount initially eaten up by the lawyer’s fees.

Therefore, notice has to be given in writing, although it doesn’t have to be in the fee agreement. A professional lawyer will always maintain adequate legal malpractice insurance and there is really no good excuse not to.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.