Not Fade Away: Can Old Lawyers Age Successfully?

Aging and retirement are not what they used to be. Not for lawyers anyway.

The basics of successful aging for lawyers are the same as they are for everyone: stay engaged, keep up connections to others, sustain a sense of purpose, exercise, eat right, and don’t drink too much. But, for lawyers—who once were cited as particularly good at balancing aging and working—finding the old balance has become a problem.

The retirement of the Baby Boom Generation is viewed as a strategic challenge facing the legal profession. Lawyers who stay too long are a problem. Bar institutions are beginning to examine age-related infirmities, to offer programs on aging, and to form support agencies to counsel lawyers about retiring, transitioning their practices, and managing disabilities. In law firms, managing partners are more direct: they are mulling how to get older lawyers out of the way. And consultants are queuing up to meet the demand.

Why are lawyers who once were models for knowing how to manage aging and working so well, not so good at it anymore? One reason may be that in the past, those who thought they were admiring lawyers were really admiring judges. But, more fundamentally, the reason may be that the legal profession is not what it used to be.

Lawyers once occupied their identities as lawyers as professional careers. They shaped their work to their lives. Now though, they may find that not so easy. Instead of pursuing a lifelong career, they are working at law jobs. They are cogs in firms and other organizations. This narrows options for winding down careers. It insists on a clean retirement instead.

Several years ago the New York Times held up Judge Jack Weinstein as the paragon. Judge Weinstein was 96 years old at the time. He said, “I’ve never thought of retiring.” He is a senior federal district judge for the Eastern District of New York. At last report, he was going to work every day at 7 AM after exercising, and he was hearing motions in the morning and trying cases in the afternoon.

Understandably, the Times admired this. The picture of going full bore to 96 and beyond is a great image.

But the guy is a federal judge. He has a lifetime appointment. It’s guaranteed by the Constitution. That’s bound to affect how you retire. And remember, judging is unique. It’s one of the few jobs commonly done by sitting in an upholstered chair, often with your eyes closed, listening to other people talk. And it’s a job best performed by experienced, deliberate practitioners who are adept at recognizing patterns of behavior and applying time-tested responses to them. It’s the perfect old-guy job.

Remember, too, this guy is Judge Jack Weinstein. For Judge Weinstein, if he’s limited himself to hearing motions and trying cases, then he has retired. Years ago, he was chief judge, handling a huge load of the most complex litigation in the country, and he was writing one book and article after another—including a major, multi-volume treatise on civil procedure. If what he’s doing now is limited to motions and trials, then, for him, that’s cutting way back.

Maybe the best lesson here is that Judge Weinstein is still engaged, still connected with other people, and still grounded in a sense of purpose. And he exercises every morning at 5:30 AM.

But, the rest of us are not Judge Weinstein, and we do not have lifetime appointments.

As a species, our energy, stamina, and mental fluidity begin to decline in our 20s. In our 60s, susceptibilities to disabilities, cognitive impairment, and mortality become statistically significant. On the other hand, our experience and relationships, our ability to recognize patterns, and the wisdom of our judgments continue to grow—up to a point. Troublesomely, that point is different for every person. That’s why lawyers’ traditional practices worked well. Traditionally, lawyers could shape their work to their circumstances, lawyer-by-lawyer.

Practicing law was not a job; it was a career. And lawyers’ careers had an arc that corresponded in large measure with commonly recognized stages of adult development.

In broad terms the stages of adult development can be characterized as 1) developing mastery of a profession; 2) connecting developed skills with purposeful work; 3) making a contribution; 4) playing a role in conserving cultural and institutional values, and ultimately, 5) growing into an integrated and meaningful life. See Aging Well by George Vaillant.

Peter Drucker famously characterized the careers of knowledge workers in similar ways. He observed that “knowledge workers are not ‘finished’ after 40 years on the job; they are merely bored.” In Managing Oneself, Drucker said,

At 45, most executives have reached the peak of their business careers, and they know it. After 20 years of doing very much the same kind of work, they are very good at their jobs. But they are not learning or contributing or deriving challenge and satisfaction from the job. And yet they are still likely to face another 20 if not 25 years of work.

Drucker envisioned these accomplished but bored executives as developing a second career, or a parallel career, or becoming “social entrepreneurs.” And he cited lawyers as examples of professionals who do this well.

For Drucker and others to lift up lawyers, whether judges or not, was no mere coincidence. Unlike business executives, lawyers in the 20th century were not organization men or women. They were not trapped in “jobs.” Their productivity was not (at least, not entirely) measured in terms of narrow metrics. As lawyers’ careers developed, they moved naturally through those development stages, from mastery to purpose to generativity. Many lawyers became leading conservers of cultural and professional values. For many, their continuous transition through those different roles was baked into careers at a single firm. Over their careers, they evolved in place. Their “productivity” went up and down. They had room for that. Lawyers could “cut back” gradually, rather than retire.

In effect, lawyers in the past could retire in place. They continued to inhabit their identities as lawyers but reduced the levels of their engagement apace with their personal circumstances and took up new, generative work.

That progression is not so readily open to people with jobs. Jobs are operating parts of organizations. The job is separate from the person and extends beyond an individual career. Jobs are defined by productivity. More is better, and less is rarely a choice. After holders of jobs reach a certain point, they must go so the job can stay. The organization wants succession.

Until the advent of large law firms and practice groups and specialization, practicing law was not fraught with these concerns. Lawyers shaped their work to their lives. Their careers evolved and ended gracefully.

Today though, lawyers are much more likely to have jobs. Lawyers in private practice are likely members of firms. Most firms are intent on surviving as organizations beyond the careers of their current members. So the context in which today’s lawyers are aging is changing.

Now, lawyers in jobs must plan for retirement like other knowledge workers do.

Lawyers in firms must accommodate their firms’ larger concerns. Their firms are focused on clients. Client demands are more likely to run to responsiveness and efficiency (even youth) than to deliberation and professionalism.

Internally in firms, the interests of senior members must be balanced against the expectations of younger ones. Firms must manage the advancement and retention of younger lawyers. They must provide training, experience, client development, and compensation for younger members. They must grapple with a changing profession.

All this means that choices are narrowing for older lawyers. Latitude to align law practice with personal circumstances is shrinking.

But, like all Americans, lawyers today are remaining active and living longer than in the past. And lawyers are no more interested in retirement now than before. So new models are needed. But, if new models are needed, they have not yet arrived.

Lawyers are living longer, their practice settings are changing, and the nature of the work itself is in flux. Retiring in place is harder to do. Yet, 73% of lawyers in private practice say they want to practice law until they “die at their desks.”

Lawyers who are not yet “older” should pay attention to this. Begin to age sooner—or least anticipate aging sooner. Look for models of aging successfully. Find older lawyers who seem, to you, to be getting it right. Over time, with those good models in mind, develop a sense of what might work for you. Begin early to prepare for that by assessing your strengths, identifying your “passions,” making connections, building relationships, financial planning.

The future is the hardest thing to predict. We are particularly bad at anticipating what we may want five or 10 years off. So, a life and work that are gratifying today may have become stale 10 years from now—for reasons that you can’t anticipate now. Anticipate that. Different lawyers will navigate these waters differently.

Occupying center stage as a private lawyer and the thrills of up-and-down private lawyer compensation can be hard to give up. But those things become increasingly hard to sustain as time goes by—and, in the context of a law firm, holding on too long can put you at odds with younger colleagues. Holding on to the spotlight and income too long may come with costs that outweigh the benefits. Anticipate that. Different lawyers will navigate these waters differently.

Maybe dying at your desk is right for you. If it is, do it.

But maybe pronouncing that you want to practice law until you die is no more than an aversion to change or fear of the future. Perhaps you should take a broader view. Is continued routine law practice all there is? Or, do you have a more heroic vision? This is your life, not your job. (Daniel Klein’s Travels with Epicurus: A Journey to a Greek Island in Search of a Fulfilled Life, puts a nice frame around this.)

In the words of a notable writer contemplating the same questions,

All experience is an arch wherethro’ gleams that untravell’d world whose margin fades for ever and forever when I move. — Alfred Tennyson

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