Baby boomer blues: The practice risks of aging

Seniority brings an increased ability to delegate work on files you continue to handle, or to transfer a file entirely. This creates risk for you — it also creates risk for the lawyer to whom you’re delegating, as reflected by comments we’ve received from lawyers such as “I took over a file from a former member who had been appointed to the bench. It came with a potential missed limitation period.”

• Be careful of removing yourself so far from the details of the retainer that your ability to identify tasks that have been inappropriately delegated is lost. One lawyer who reported “a limitation missed because of procrastination by a junior lawyer”, now plans “increased frequency of review of delegated files.” Another proposes to “institute a system of senior lawyers who delegate ensuring that they oversee all decisions made by juniors.”
• Even if you’ve appropriately delegated, stay connected.  One senior lawyer advises “more double checking of the work of less experienced lawyers — although my associate is a senior lawyer, in hindsight he and I both didn’t double check his work enough to have caught this error (not giving proper notice on a bond)”. Another recommends that you “follow-up with junior lawyers regarding previous instructions, especially with time-sensitive matters.”
• Appreciate that some files should simply not be delegated. As one lawyer told us, “the claim resulted from senior counsel passing a file to me that he knew had problems. Senior counsel should handle their problem files instead of passing them to junior counsel to deal with.” Even if that lawyer has the necessary technical skills, a mismatch between the lawyer and file will create problems. 
• If you transfer a file, alert your successor to any deadlines that apply, particularly any that are time sensitive. Connect first in person and then send a confirming note. Proper firm systems will help ensure that limitations and deadlines are met (see Beat the Clock, tips 1 – 8), and manage other risks arising out of transfers. As one lawyer who missed an offer to settle buried deep in a file he’d taken on recommends, “use a proper checklist when assuming conduct of a file.”

Hope for the best: prepare for the worst. Aging may bring medical or other crises that lead to short- or long-term work leaves and, yes, we will all die someday. Protect your clients, your firm, and your family against the possibility of your sudden absence causing problems. And when you do leave practice, for whatever reason, take comfort in LIF’s free indemnity coverage for past mistakes. Also consider the importance of keeping good notes.

• Use the Law Society’s Practice Coverage and Succession Planning resource. This material will give you the tools, documents and other resources you need to plan for unexpected events as well as retirement, meet your professional obligations and protect you from the risk of a claim. It will also help firms retain business and avoid losses from departures. 
• Use the Law Society’s Practice Advice Closed Filed – Retention and Disposition resource to help you develop a plan for closed files. This will ensure that the evidence needed to defend a claim is available, even if you are not. Given the discovery component of limitation periods, it’s possible that you (or your estate) may be sued for negligence some years after a file is closed, and the file may well have the evidence needed to corroborate events or refresh memories. 
• Remember that notes are your best friend (your firm and family will like them, too). Take this good advice from a lawyer who inherited a file that her former colleague had settled just before he died suddenly, and now faced a ‘settlor’s remorse’ claim. “As lawyers do their job, document, document, document, the exchanges of information and receipt of instructions from clients. Papering the file with this information is probably the biggest defence to some nuisance claims."

Failing to learn and adapt to the new landscape that continuously transforms the practice of law creates real risk for lawyers. As consumer demand for cost-effective solutions, which are often met through technology, peaks, the standard of care may change. Ten years ago, we could defend a lawyer who missed a deadline relying on a courier instead of e-filing in the LTO. Today, that’s not even an option.

• Reverse mentor. You’ve probably mentored at least one younger lawyer. Those younger generations can teach you, too. As ‘digital natives’ comfortable with technology (including social media), they offer insights and perspectives that you may find extremely useful. And as you consider switching things up with reverse mentoring, you may find these articles — from CBABC’s June 2011 edition of BarTalk (go to page 8) and the Globe and Mail — helpful.
• Focus on the upside. Thank technology for tools that enhance communication, create systems to help avoid simple oversights, and handle time-consuming tasks in nanoseconds. You may also find a competitive edge by importing cost-savings and convenience into your practice. 

One lawyer described this risk as “failing to update myself in an area of law I once practised in extensively. I assumed too much from prior experience too long ago.” Another explained, “The law changed and I was unaware of the change.”

• Take this advice from one of your colleagues: “Make sure that in areas of law in which lawyers have not kept current, they allow time to update their knowledge.” Another recommends regular refresher courses, noting that “after 30 – 40 years, one forgets a lot.” And another caught by a will drafting mistake, recommends that lawyers “constantly update skills with continuing legal education — this is the best way to be aware of potential problems." 
• Membership has its rewards, including helping you avoid getting caught with your legal knowledge pants down. From email notices to risk management publications to the Benchers Bulletin, we give you information that will help alert you to issues that may be relevant to your particular practice. Read them, including LIF’s extensive materials on practice management and area of law risks.

There is still a generation gap, but this time you’re on the other side. You’re no longer surrounded by other boomers or traditionalists (born 1925-1945), but now deal with colleagues, clients and opposing counsel who are generation Xers (born 1965-1980) and millennials (born after 1980), and who may have different attitudes, values and priorities from you. The differences can be acute, leading to misunderstandings, communication breakdowns, and unnecessary conflict. You risk jumping to the wrong conclusion if you make assumptions about anyone based on how you or someone of your generation would act.

Learn about generations. Knowing something about the distinct generations in today’s work world can help you bridge the gap — even figure out how to benefit from the differences. And make communicating with ‘others’ a priority. Nora Spinks, former president of Work-Life Harmony Enterprises in Canada, has studied the topic extensively, and you may find this video clip or article from our friends at LawPro, a helpful starting point. 

Age can make us overly confident, and that can make us sloppy. We also have long-term relationships with clients, and this can lead to assumptions that later prove to be wrong, as one lawyer discovered who made a bad assumption because of “the long-term and casual relationship with my client.” He thought the client knew that he was only acting on one part of a matter, not the whole thing. Those long-term relationships can be problematic in a small town. As one lawyer told us, “Acting in the same community for 30 years ultimately creates difficulties for small firms as every client is connected to every other client.” Age can also lead to higher expectations on the part of our clients. If we’re senior, we ought to know everything, right?

• Manage client expectations. One senior lawyer who reported a claim recommends: “Always write a full explanation to the client when you have any doubt about the issues that you are handling and what the client might expect that you are handling.” One lawyer who practised in a small town for many years noted the difficulty created by the fact that ultimately almost every client is connected in some way to every other client. That lawyer acted on two unrelated matters for two separate clients, and later acted for just one on a third unrelated matter, resulting in an unhappy former client. That lawyer’s tip? “Be cognizant of ex-clients who feel that you are constrained from acting for other clients.”
• Don’t rely on your memory. It’s not good. One lawyer drafted mirror wills for a couple, but forgot to include a provision dealing with the agreed upon survivorship interest in the home. He relied on his memory, instead of reviewing the file to make sure of his instructions. His tip? “The reinstallation of a small dose of ‘terror/caution’ into senior practitioners." Review the file for instructions. Double-check documents and files. Use checklists. 

As lawyers age, so do their long-standing clients. Fortunately, long-standing relationships can mitigate against risk. For instance, one lawyer who had acted for an executor and found himself the target of a disgruntled relative who thought she ought to have benefited more from the estate, told us, “My personal and professional relationship with the testator over the years was what ‘saved’ the situation, and the matter was settled by payment of a relatively small portion of the estate going to the claimant.” Unfortunately, however, other risks, such as those described below, may emerge.

• Forgetfulness or confusion: Both have triggered reports from lawyers. Examples include the client who couldn’t correctly recall the lawyer’s advice, the client who omitted to tell the lawyer about a material fact because she forgot, and the client whose confusion about dates and times meant that he consulted the lawyer perilously close to a limitation period.
• An illness that unexpectedly becomes life threatening: In these situations, lawyers have found themselves unable to finish a will, or finishing a will in a panic. As one lawyer told us, “It's pretty hard to resist a family in extreme distress when your client is dying and he is asking for help. All could have been avoided if he'd done the estate planning I had tried to get him to do for years.”
• Lack of capacity or vulnerability to undue influence: A wealthy older generation means that unscrupulous ‘friends’ or relatives may seek to benefit at an older person’s expense. Lawyers who act for elderly clients to either witness a signature on a real property transfer form, power of attorney, deed of gift or any other document with legal consequences, or provide them with independent legal advice, are at risk when the matter later unravels and claims of undue influence, or lack of understanding or capacity, surface.
• Changing legal needs: You may be at risk of finding yourself wading into legal waters that can sink you quickly, as the scope of legal issues for aging clients widens. Do you have the knowledge and skills necessary to provide wills and estate planning services, or corporate services and tax advice to transfer a family business to the next generation? Are you prepared to enter the world of greying divorce with a client who decides that life’s too short to stay any longer in an unhappy relationship, or assist a client who needs a retirement home or long-term care housing? Elder-law issues are becoming increasingly challenging, and a complex legislative environment makes many areas even more complicated.

• Don’t dabble. One lawyer reluctantly agreed to give ILA on a prenuptial agreement to a client she’d acted for years before, because she was "trying to help out." The marriage later dissolved and the client realized the agreement’s onerous terms, and turned on the lawyer. That lawyer’s advice? “Avoid giving advice in areas where you are not proficient."  Recognize when you’re out of your depth. If you don’t practice regularly in any area your client now needs services and aren’t able to stay current in that area, refer them out. 
• Even if it’s an area in which you routinely practise, appreciate that age may have an impact, for instance, on your client’s entitlement. As one lawyer told us: “Be very careful in settling a claim on the basis that Part 7 be kept open for housekeeping or disability benefits. They are only payable until age 65.”
• Try and make your practice ‘senior friendly’ — this will help you avoid simple issues such as communication breakdowns. You may need to take more time to effectively listen, ask and explain. Take particular care to confirm discussions and instructions in writing, and make it easy to read. Serif style is more readable than sans serif, and a 14 point typeface is easier for anyone with poor vision to read. And although dementia is not a normal part of aging, most people with dementia are over the age of 65. For information on making your workplace easier for clients with dementia, see our resources below. 
• There are legal issues and practices particular to aging clients. Elder law — legal services to seniors — is growing as quickly as the population demographic is changing. And it will continue to grow as the boomers move through the demographic cycle. If you want to provide these services, get educated about the issues, practices and challenges that are unique to elder law. CLEBC in collaboration with CCEL (Canadian Centre for Elder Law) holds a conference on elder law every two years. Materials from past courses are available in CLEBC’s course archives.  CBABC Sections such as elder law, wills and trust, health, and family will help you stay up-to-date. 
• Don’t let your clients put things off that, if left undone, will adversely impact those left behind. If they want a will or a separation agreement, get it done in a timely fashion. 
• Satisfy yourself that your client has the capacity to instruct you. Getting a medical assessment will be helpful, but not definitive, as the test for capacity is a legal test, not a medical one. If you’re satisfied of your client’s capacity, take detailed notes. If your client is without capacity, appreciate the need to consider if a legal representative needs to be appointed, and take steps to protect your client in the interim. For more information on capacity, see our resources below. 
• Be careful about the potential for undue influence over an elderly client. For more information, see our resources below.

• The BC Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide will help ensure that you act in accordance with your client’s genuine independent wishes. Although intended to assist when drafting wills, it is also applicable to various common transactions, including gifts, loans, and guarantees between family members and acquaintances. It includes red flags and guidelines.
• For a helpful resource on issues of capacity, see BCLI’s Report on Common-law Tests of Capacity.
• For assistance in acting for clients with dementia:
  • For a review of your ethical obligations, the common-law and statutory tests of incapacity and various communication strategies, see Acting for a client with dementia (Practice Watch, Benchers Bulletin, Spring 2015).
  • The Alzheimer’s Society of BC has developed a number of resources, including Making your workplace dementia friendly: Information for legal professionals – designed to help lawyers and other professionals in the sector understand and recognize the signs of dementia and learn how to communicate in an effective, respectful way. It includes information on how you can make your office more welcoming and accessible for people living with dementia.
  • CLEBC offers courses and topics within courses in relation to acting for clients with dementia. For example, “CLE-TV: Your Client Has Dementia — Now What? Ethics and Practice Tips to Minimize Risk”, is available in CLEBC’s Webinar Archive.
  • The Public Guardian and Trustee and Seniors First BC Centre (formerly known as the BC Centre for Elder and Advocacy Support) also have resources with respect to support for vulnerable adults.
• Some resources are tailored specifically to particular types of legal services. If you are about to:
  • Draft a will or act on any wills or estates matter — read our risk management information for practitioners in this area. It includes a review of the shift in the onus of proof in relation to undue influence under the Wills, Estates and Succession Act, as well as adult guardianship and representation agreements;
  • Witness a signature — read tips 6 and 7 — ‘if a party is elderly or vulnerable, be careful about capacity and undue influence’ and ‘remember that you may be a witness down the road: keep notes and relevant documents, and protect your client’s confidential and privileged information’ — and the other material in Witnessing a signature? Stop. Read this first.; or
  • Give independent legal advice (ILA) — read the annotated copy of the Law Society’s ILA model checklist, with LIF’s tips and suggestions added in to give you one stop shopping for your ILA risk management, and the other material in Giving independent legal advice? Stop. Read this first.  

As you age, so do others in your professional world. That creates risk. One lawyer, for example, found that the one-year limitation for starting a lien claim was missed due, in part, to “the long-term disability of a long-time legal assistant.” Another, acting for an infant on a motor vehicle accident claim, didn’t start the tort action within two years of the client’s nineteenth birthday because his reliable senior assistant made a sudden decision to retire, and the diary prompt wasn’t brought to his attention. And it’s not just your staff who may be aging. One lawyer created unintended tax consequences in transferring shares from a father to his son’s company, without transferring them first to the son personally. He told us that his mistake was caused, in part, by “assuming that the retired CA on whom I relied possessed the necessary tax expertise.”

• Review the tips offered above under ‘aging clients’. Learning to recognize signs of impairment, for instance, will help you protect yourself in a world that’s aging around you.
• As you are responsible for meeting limitations and deadlines, ensure that they can be met regardless of an assistant’s health or absence. Delegation: The buck stops here! tells you how.

As a trusted, experienced advisor of clients who are also aging, you are more likely to find yourself acting as an executor. This role brings unique risks, which are heightened if you also act as lawyer for the estate.

• If you’re still in private practice and want to accept an appointment as an executor under a will, read Executors, trustees and other fiduciaries to find out if our policy covers you. It will also help you decide whether or not to provide any legal services to the estate. If our policy does not cover you, consider buying errors and omissions insurance for executors available on the private market. If our policy does cover you, consider if you need to buy excess insurance. And remember: once you retire from practice, our policy cannot help you in any way in relation to your future executor activities.
• Know the risks. We’ve published tips just for lawyers acting as executors or about to accept the role. Read them.