Statistics Don’t Lie
The number of attorneys practicing after reaching the age of 65 has grown by more than 50% in the past decade. Roughly 15% of all practicing lawyers are 65 or older. As a group, we also seem to work longer than others. Only 7% of the general workforce stays employed beyond 65.
Of course, working after 65 is not the problem. The problem is that cognitive impairment risk increases significantly after that age. One in nine people over age 65 have Alzheimer’s. If you do the math, probably 1-2% of practicing lawyers suffer from reduced mental capacity leading to an enhanced risk of incompetency or lack of diligence.
How Big is the Problem?
This type of accident waiting to happen is even more likely for solo and small firm practitioners, because there are fewer colleagues in the office to notice the attorney’s decline. Probably fewer still have the courage to intervene, or, if too late, the ability to clean up the mess.
No one really knows how big the problem is now, or how likely it will get worse. State disciplinary authorities and lawyer assistance programs have little to no data on this problem. Common sense, however, suggests that the issue is not going away soon. Indeed, one bar leader in Illinois has predicted a “tsunami” of disciplinary complaints, and he’s probably not crying wolf.
What Needs to Be Done
It’s above my pay grade to come up with any comprehensive solution. I don’t want to seem like I’m passing the buck, but there are various players in the system who can minimize the fallout, either separately or working together. First and foremost, each state’s disciplinary system should be responsible. After all, their existence is based on protecting the public. The disciplinary folks should then work with each state’s bar organization to create solutions. Same for the lawyer assistance programs, which in many states, have some formal or informal relationship with the bar.
The final players who are in a position to help are the malpractice carriers. One would think that their bottom lines will be negatively impacted big time if a tsunami is just around the corner. After all, the carriers are in the business of assessing risk. Who better to have their pulse on the problem and perhaps revise the underwriting process for senior lawyers?
Working together, each state’s key constituencies can hopefully put procedures in place to ensure that all lawyers can retire from the profession in a dignified manner.