Risks Related to Many Years of Experience

September 1, 2021

In 2017, according to the Édition spéciale du Barreau-mètre – La profession en chiffres : Sous la loupe des barreaux de section 2017, 10% of lawyers were 65 years of age or older.[1] Similarly, nearly 30% of the members of the Barreau du Québec had been in practice for more than 25 years.[2] Given that demographics data shows an aging population, it is reasonable to assume that this aging will also be reflected in our profession. Moreover, in general, baby boomers often opt for a longer career than their predecessors (the Silent Generation 1925-1942).

In light of this data, the objective of this article is to provide an overview of some of the risks associated with the aging of lawyers in a context where their entourage is also aging and the landscape is shifting. We will then discuss preventive measures and resources for managing these risks.

Illness or Death 

Unfortunately, lawyers can suffer physical or neurological illnesses.

It is your responsibility to make sure that if you are absent from your firm, your clients, family and business are not harmed.

Illnesses can compromise compliance with certain professional rules of conduct. The Code of Professional Conduct provides, among other things, that lawyers must not engage in their professional activities in a state or under conditions likely to compromise the quality of their services.[3] In particular, lawyers have duties of competence, prudence and diligence towards their clients.[4]

Preventive Measures:

• Make sure you have a business continuity plan in case of short- or long-term absences. On this topic, see the articles entitled A (H1N1) Are you ready? and COVID-19 (Coronavirus) : Quel est votre plan de continuité?, which you can adapt as necessary. In a similar vein, the Lawyers’ Professional Indemnity Company (LawPro) has also published a guide on managing practice interruptions.

• Plan your retirement and prepare a succession plan. In this regard, use the Barreau du Québec’s guide entitled Êtes-vous prêt? 25 Questions pour évaluer la planification de votre retraite.

• Be on the lookout for early signs of neurological disease. The text written by M^e Guylaine LeBrun and M^e Martin F. Sheehan (now a Superior Court judge) published in Développements récents en déontologie, droit professionnel et disciplinaire and entitled Alzheimer, troubles cognitifs et vieillissement : l’impact sur la responsabilité professionnelle discusses these warning signs and sets out preventive measures for mitigating the risks associated with these diseases.

• There is also the thorny question: What should you do if you notice that a colleague is practising in a condition that could cause serious harm to a client? In this regard, s. 134 of the Code of Professional Conduct sets out the obligation to inform the syndic of the Barreau.[5]

• Lastly, document your files. This will allow the lawyer who inherits them to know not only at what stage each of them is, but also what your vision was, the advice given to your clients and the instructions received from them.

Technological Developments 

Technology is continually evolving and transforming the practice of law. It is therefore possible to feel overwhelmed by it. However, the Code of Professional Conduct requires lawyers to keep up to date as regards their knowledge related to information technologies used within the scope of their professional activities.[6] In addition, the use of these technologies contributes to offering quality services in a context where clients are increasingly demanding in terms of the speed and cost of legal services.

Preventive Measures:

• Have You Heard of Reverse Mentoring? This is the title of our video clip published on December 15, 2020 on our Blog Maîtres@droits! In this type of mentoring, a junior lawyer is paired with a senior lawyer to impart knowledge or skills. In other words, the junior lawyer is the mentor and the senior lawyer is the mentee. Having grown up in the digital age, junior lawyers can certainly provide you with insights and knowledge about the use of technology.

• In addition, consider participating in training activities about certain software programs to improve your service offering.

Legal Developments

Undue reliance on experience to complete mandates results from the risk of not keeping up to date in one’s usual field of practice. In such a context, mistakes may be made because the lawyer is unaware of a decision that changes the state of the law or because the lawyer is unaware of a legislative change. However, the Code of Professional Conduct is clear: Lawyers must develop their knowledge and skills and keep them up to date.[7]

Preventive Measures:

• Be sure to participate in regular training activities related to your field of practice. Moreover, certain training activities offered by the Insurance Fund are available on Web-pro in the Catalogue FARPBQ at: https://webpro.barreau.qc.ca/formations-farpbq.html.

• Several online case law databases offer the possibility of receiving recent decisions in various fields or send you notifications to inform you of the existence of such decisions. Don’t hesitate to use these features to stay informed.

The Generation Gap

In recent years, there has been an increase in the number of articles and training activities on managing millennials in the workplace. This generation may have attitudes, values and priorities that differ from yours. These differences can sometimes result in misunderstandings, communication problems or conflicts.

Preventive Measures:

• Avoid jumping to conclusions. Seek to establish a dialogue in order to better understand the vision or attitudes of your young colleagues.

• Take a training activity on how to manage these generational gaps and learn how to leverage the differences of each generation. There is no doubt that the harmony that exists within a team is reflected in the quality of services offered to clients. This also contributes to retaining those who will take over from you.

• Finally, see Nora Spinks’ article in LawPro entitled Leveraging generational diversity in law.

Aging Clients 

As you age, so do your clients. While long-standing and privileged relationships with your clients can limit the risk of being sued, there are still some things you should consider:

• Decreased mental capacity of the client: This decrease may be accompanied by the client forgetting the lawyer’s advice and the instructions given to the lawyer. There may also be confusion on the part of the client as to the relevant dates for completing certain tasks.

• Unexpected life-threatening illnesses: In such a situation, the lawyer may hastily draft a will to prevent the client from dying intestate.

• Undue influence from the client’s entourage: In such a case, the lawyer is exposed to allegations from those in that entourage claiming that the client was unfit at the time the will was signed or had a lack of understanding.

• Practising in an unfamiliar area of law: It goes without saying… Your clients’ needs change with their age. For example, clients may ask their business lawyer questions about wills and estate planning or about the tax aspects of transferring their company to their children. Practising in an unfamiliar area of law increases the risk of errors, so be careful before accepting such a mandate. 

Preventive Measures:

• Identify who your client is. Indeed, this can sometimes be confusing. This would be the case, for example, when the mandate comes from a third party, such as the child of a client who is incapable. This is especially true if the third party pays your fees. Therefore, in the engagement letter, clearly identify who the client is.

• Be alert to the warning signs of neurological disease in the client and, if necessary, ensure that the client does not lack capacity. In this regard, see the article mentioned above entitled Alzheimer, troubles cognitifs et vieillissement : l’impact sur la responsabilité professionnelle which describes some of these signs and provides valuable advice for dealing with capacity issues with clients. 

• Adapt your practice to senior clients. This means taking more time to listen, asking the right questions and providing explanations. Similarly, provide a written confirmation of the content of your conversations with the client. 

• Learn more about elder law. If you decide to offer services to this population, make sure you know the ins and outs. 

• Fight procrastination by clients. Make them aware of the negative impacts of a lack of planning on those who will survive them (e.g., the absence of a will). 

• Beware of undue influence on your clients. Consult the Lignes Directrices / Intervention de l’avocat et du notaire auprès des aînés et des majeurs en situation de vulnérabilité et levée du secret professionnel dans le contexte de la lutte contre la maltraitance envers ces clientèles prepared by the Barreau du Québec and the Chambre des notaires du Québec. These guidelines will enable you to act in accordance with the law and the case law regarding professional secrecy.

An Aging Professional Community 

The retirement or disability of one of your colleagues (lawyer, legal assistant or paralegal) can increase your professional liability exposure. For example, a lawyer can miss deadlines when their assistant suddenly decides to retire and fails to forward a reminder of the prescriptive period in a file.

Preventive Measures:

• At the risk of repeating ourselves, establish a continuity plan for your firm so that you can remain operational even after a member of your staff has left.

• As with your colleagues and clients, keep an eye out for warning signs of neurological disease and see the article entitled Alzheimer, troubles cognitifs et vieillissement : l’impact sur la responsabilité professionnelle. Make sure that the illness of those who work with you does not affect the rights and interests of your clients.

In conclusion, aging, whether it is the aging of lawyers, their clients or their staff, carries certain risks that must be managed. That said, “No need to stress; everyone has to grow old sometime. So we might as well grow old with a smile on our faces, because old age also brings wisdom!” (Anonymous).

Reference: Lawyers Indemnity Fund, “Baby boomer blues: The practice risks of aging”, 2017, online: https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/lawyers-indemnity-fund-old/risk-management/practice-management-risks-and-tips/aging/.

[1] Barreau du Québec, Sous la loupe des barreaux de section 2017, Édition spéciale du Barreau-mètre – La profession en chiffres, Montreal, Québec, Barreau du Québec, 2017, online: https://www.barreau.qc.ca/media/1239/barreau-metre-section.pdf.

[2] Barreau du Québec, Sous la loupe de la diversité 2017, Édition spéciale du Barreau-mètre – La profession en chiffres, Montreal, Québec, Barreau du Québec, 2017, online: https://www.barreau.qc.ca/media/1238/barreau-metre-diversite.pdf.

[3] Code of Professional Conduct of Lawyers, CQLR, c. B-1, r. 3.1, s. 22, para. 2.

[4] Id., s. 20.

[5] Id., s. 134.

[6] Id., s. 21.

[7] Id., s. 21.