Samuel C. Stretton.

Older lawyers have to decide for themselves when to stop or when to keep going.

I am getting older. What steps, if any, should I take if I continue to practice law?

The question of senior attorneys is one that is bubbling below the surface. At least in the past, the Office of Disciplinary Counsel has started to see a number of complaints involving older attorneys who perhaps should have retired or who are just not fit anymore to continue to practice. Many of these lawyers continue to practice because they have no other means of income and with little or no pension.

It's always a difficult situation when an older attorney starts to decline. This was never a major problem in the past because one's life expectancy wasn't as long. In the 1940s and the 1950s, most adult men retired around 65 and were dead by 68 or 70. Most adult women lived a few years longer, but not much more. Now, it's not uncommon to see lawyers still practicing in their 70s and 80s.

It's difficult for judges and other lawyers to report an older lawyer who's been practicing for 40, 50, or 60 years and whose decline is obvious, but not understood by the attorney. But, all lawyers and judges should bring to the attention of any older lawyer any issues of mental health or physical decline if it's affecting their practice or their ability to represent clients.

On the other hand, every lawyer makes mistakes. Therefore, before severe criticism is made, every lawyer and/or judge out to make certain the older lawyer is suffering from physical or mental decline and not just having a bad day or being overly tired.

Older lawyers should consider arrangements to have another attorney assist them if there is a need. The Rules of Professional Conduct suggest that lawyers make arrangements to have someone available if they are away or not able to handle a case. But, the Rules of Professional Conduct generally do not specifically deal with older lawyers.

Older lawyers now have the option to sell all or a portion of their law practice as set forth in Pennsylvania Rules of Professional Conduct, Rule 1.17. That rule provides an option for senior lawyers that was not available 15-20 years ago. That option can allow a lawyer to receive fees and monies for the goodwill and the benefits of the practice. Unfortunately, as many lawyers know in this day and age, everyone lives from paycheck-to-paycheck or client-to-client. There is such extreme client competition in the practice of law and goodwill of an established firm often is of little value. In the modern world, a good legal reputation is trumped by superior electronic advertising.

Older lawyers have to remember that they are just as responsible to be on time and to be prepared as they were when they were younger. Obviously, there is some deference given to an older lawyer, but the older lawyer should not take advantage of that courtesy.

It might be useful for bar associations to establish a senior lawyers committee where lawyers can meet regularly and talk over issues in terms of retirement or slowing down or what to do or how to continue to maintain their practice. This committee might make it easier for senior lawyers to work together or to help each other.

Older lawyers should try to maintain their legal malpractice insurance if they are financially able to do so. Although there is no requirement to have malpractice insurance other than the requirement to notify the clients under Rule 1.4 if they do not have the required insurance, every lawyer, if they are going to retire, should want to maintain malpractice coverage or at least a tail to protect them against future litigation.

Bar associations, courts and lawyers fail to take advantage of the knowledge and skills of older lawyers. In his modern age where youth is at a premium, the older lawyers are sort of shunned aside. There is much wisdom in pairing older lawyers with younger lawyers in some sort of quasi-apprenticeship and it would greatly benefit the younger members of the bar. Old customs and courtesies and professionalism are often ignored or not totally understood by the younger members of the bar. They see the practice of law as a business more than a profession. Older lawyers have a different viewpoint.

Bar associations also should use the services of older members of the bar to help preserve legal history. These older members have vivid memories of judges and lawyers from the past. These recollections will soon be gone if not recorded and maintained. The history of the bar is not a priority perhaps as it once was. Oftentimes the mention of excellent lawyers or judges from the past brings blank stares.

The issues involving older lawyers are very valid ones. Many older lawyers can greatly continue to contribute to the legal profession and the courts. Others because of physical or mental infirmities are just not in a position to do so. The problem is lawyers have to know when to stop and when not to. The days of law firms carrying that older lawyer who had developed the practice are pretty much gone. The common theme is what can you do for me tomorrow and not what you did for me today or in the past. As a result, older lawyers who are gradually slowing down are often times are eased out of the firm before they want to go.

The problem exists when an older lawyer doesn't know when to stop or doesn't recognize their limitations. But, these issues need to be addressed by the organized bar and not left just to future disciplinary action.

Firms should apply strategies where perhaps two lawyers work on a file.

Ethically, what can I put in an employment contract with an associate to protect my client base if the associate decides to leave?

Because law is a profession, this is always a difficult question. Unlike other businesses, the law prohibits a non-compete clause. The appropriate rule is Rule 5.6(b) that precludes a lawyer from offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of the client's controversy and Rule 5.6(a) which prohibits a law firm employment agreement from restricting the lawyer's right to practice law after termination of the relationship. Comment 1 to Rule 5.6 sets forth the policy: “An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy, but also limits the freedom of clients to choose a lawyer. Paragraph A prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.”

Having said that, there are creative ways that have been used over the years. One law firm required a lawyer to pay 50 percent of any fees earned from clients who left the firm and retained the lawyer when the lawyer left the firm. There is an old Philadelphia Bar Association Guidance Opinion (87-24) that found that not to be violation necessarily of Rule 5.6. The Opinion essentially indicated that one would look on a case-by-case basis to see if this had an effect on restricting a lawyer's right to practice. The opinion always seemed foolish to this writer, because clearly no one is going to take a client if you have to give 50 percent of the fee to the former firm, except in perhaps extreme circumstances.

Some employment agreements have a clause that when a lawyer leaves the firm, the lawyer is responsible for monies owed the firm by the clients who wish to stay with the lawyer. That, of course, would be a direct violation of Rule 5.6. Any agreement that would preclude a lawyer from soliciting the clients they previously handled when the lawyer left would clearly be a violation of Rule 5.6. The ethical rules are clear that lawyers can send letters to clients of the firm once the lawyer gives notice to the firm that the lawyer is leaving.

One of the more recent tricks is to have employment agreements that contain a 60 or 90 day time period for giving notice. To this writer's knowledge, there are no ethics opinions on this. Some of these requirements actually impose financial penalties if a lawyer leaves within the time period of the notice. In other words, a 90-day notice and a lawyer leaves after 20 days could be subject to formal penalties.

These contracts would have to be analyzed to see if they restrict a lawyer's right to practice and leave. From a practical standpoint, this time period could create some difficult problems for the lawyer. Usually when a lawyer decides to leave the firm and gives notice to the firm, letters are sent out right away. If a lawyer has to wait 30, 60, or 90 days while all those files are being transferred to someone else in the firm, it is highly unlikely clients will follow. At least, not as many will, except in extraordinary circumstances.

Recognizing these problems, the better practice is to comply strictly with Rule 5.6. There is no need to try to restrict a lawyer's right to practice or the client's right to hire a lawyer. The real issue becomes what happens before. The firm that does not keep in touch with their clients and allows one lawyer to handle all the work is certainly going to lose a number of clients if that lawyer leaves. Therefore, firms should apply strategies where perhaps two lawyers work on the file or the senior partner periodically communicates with the client which would help to maintain the client with the firm if the other lawyer leaves. He continued client contact is the best way to maintain clients. Attempts to have creative and imaginative employment clauses that try to get around the Rule 5.6 restrictions, should not be the goal of any professional.

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, Pennsylvania, 19381.