Both legal newbies and veteran lawyers are subject to disciplinary action from the powers that be, but can a lawyer's age affect their likelihood to comply with certain bar rules?

According to some Miami lawyers, technology-related violations are more likely to plague older practitioners, while a lack of mentorship among younger ones can lead to mistakes. Among those attorneys is Bast Amron special counsel Brian L. Tannebaum, who said that thanks to technology, the demands of practice are “more than they've ever been.”

“Way back in the day, it used to be that you would send a letter to a lawyer and say, 'I need a response in two weeks.' Nobody would think of doing that now,” said Tannebaum, who was admitted to the bar in 1995. “Now it's, 'I'm sending you this email at 7:30 p.m. and if I don't hear back from you by 10 a.m. tomorrow I'm filing this document.'”

Indeed, lawyers who don't stay on top of technology can find themselves on the disciplinary chopping block. One Florida law firm in 2017 missed a deadline to contest an award of attorney fees because the email had been caught in a spam filter.

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Following a recommendation by the American Bar Association (ABA) in 2012, 31 states have adopted ethical duty of technology competence, aimed at spreading awareness of “the benefits and risks and associated with relevant technology.”

“Lawyers who don't take the time to familiarize themselves with the ins and outs of e-filing run serious risks,” said Passman Jones shareholder John G. Browning, who's been a trial lawyer for more than 28 years.

According to Browning, older attorneys can be more “susceptible” to doing things incorrectly when it comes to computers. In 2015, for example, the technological shortcomings of James Edward Oliver, a well-respected bankruptcy lawyer in Oklahoma who'd been practicing since 1967, resulted in nine “homework assignments” from a federal judge that had to be completed “error free.”

“The federal judge gave him numerous opportunities to correct his e-filings in the case, but he simply just could not or would not master it,” Browning said. Oliver was later suspended after allegedly paying another bankruptcy lawyer $1,000 to complete the homework for him.

Similarly, in 2015, the Minnesota Board on Judicial Standards sanctioned Judge Edward Bearse for posting about his cases on Facebook. Bearse had served on the bench for 32 years before becoming a senior judge in 2006 and had never been disciplined.

“He seemed like a nice grandfatherly old guy, but he didn't understand how Facebook worked, this wonderful little mechanism that he used to stay in touch with his grandkids. He did not realize that he was sharing with the outside world these observations that he would post about the cases before him,” Browning said.

The problem, according to civil and business litigator Harry A. Payton of Payton Associates, who's been practicing since 1966, is that older attorneys can be “less susceptible to some suggestions to change their conduct.”

“I think they sometimes have a feeling that they can act according to their own standards, and they don't have to comply with the standards that have been established for everybody.”

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'It's a Bit Like 'Lord of the Flies'

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Recent law school grads face a different hurdle, according to Tannebaum, who represents lawyers before the Florida Bar and students before the Board of Examiners.

Their problem? Isolation.

“Maybe they're working out of their house, and they can't walk down the hall to three or four lawyers who have been practicing for 20 years and say, 'Hey, can we talk about this case?' They're sitting in their office by themselves,” Tannebaum said.

When he was new to law, Tannenbaum felt it was important to “have people that you can call on to ask questions,” he said. “I often see lawyers with questions about their cases sending emails to a group of lawyers, which is fine. … But I always think to myself, 'Do you have somebody you can call instead of just putting it out there to a bunch of random lawyers?'”

Often, Tannenbaum notices new lawyers make mistakes that could have been prevented with a mentor. “You will see younger lawyers who have not been in practice a long time drafting documents and filing things without complying with all of the rules, and it's not necessarily intentional, but it's something that is a result of not passing it by somebody else who has more experience.”

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Seconding that notion is Payton, adding he's also heard judges complain about a “lack of professionalism” among younger attorneys. “So many of them are leaving law school and hanging out their own shingle, and they have nobody to mentor them, they have nobody to guide them.”

'Without mentoring, without good examples, it's a bit like 'Lord of the Flies.' You end up with lesser skilled lawyers that don't know where the line is crossed,” said John E. Leighton, a civil litigator with more than 32 years of experience.

In Leighton's opinion, law schools now “prepare lawyers in ways they didn't used to,” though that doesn't mean graduates necessarily know how to practice law. For that reason, he would like to see an extra year of “residency,” where students could intern, specialize and develop greater networks.

“Do they need somebody telling them or showing them what to do every moment? No. But everybody needs some mentoring,” Leighton said. “The interaction of lawyers is one of the most important aspects of law.”

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'The Steady Hand of a Surgeon'

The bar disciplines lawyers who've been practicing law for less than five years differently than those with more experience. According to the Florida Bar's Standards for Imposing Sanctions, “inexperience in the practice of law” is considered a mitigating factor in disciplinary matters, while the “substantial experience in the practice of law” is an aggravating factor.

In Browning's mind, entrusting a lawyer with potentially life-altering legal matters is a bit like picking out a surgeon for a complicated procedure.

“I want the guy who's performed that surgery 1,000 times, not the resident who's seen it done and is trying it for the first time. But at the same time, we understand that there may be some trade-offs that come with aging, and the steady hand of a surgeon is a hard and fast requirement,” Browning said.

Related story: Related story: 12 South Florida Lawyers Disciplined by Florida Supreme Court

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Browning has also noticed more attention placed on succession planning within firms.

“I think we're simply more aware of these issues that come with what's been termed the graying of the profession. A recognition that the elder statesmen of a firm are not necessarily going to be there indefinitely, and the people who traditionally were the rainmakers of the firm bringing in work for many of the younger lawyers are not necessarily always going to be capable of doing that.”

The way Payton sees it, “honor” can trump experience.

“We all have a license to represent members of the public, and they're entitled to the best representation that they can get. We shouldn't let people who don't subscribe to high standards be permitted to practice law,” Payton said. ”This is an honorable profession, but how many times do you hear an attorney referred to and described as being honorable? That should be the standard to which all attorneys ascribe.”

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