The “baby boomers” of the English-speaking West are those born from the late 1940s to early 1960s, and, as the name suggests, there were a lot of them. Despite their advancing age, and recent COVID-19 threats, this generation remains the second-most numerous in the USA.1 In Australia—the subject of Angela Melville, Valerie Caines and Marcus Walker’s paper—the same generation dwarfed all others until very recently.Consequently, there are many aging lawyers leading to what has been described as an impending “senior tsunami.”
Melville, Caines, and Walker provide an analysis of the available data on the Australian legal profession to trace a range of intersecting concerns around its aging profession. This is the first analysis of its kind in Australia, and it is a clear and nuanced examination with some sensible recommendations. The study reflects the findings of the first and second Joint Committee on Aging Lawyers established by the National Organisation of Bar Counsel and the Association of Professional Responsibility Lawyers (NOBC-APRL), which noted:
there is a great number of lawyers with tremendous experience, insight and wisdom that can be shared with newer members of the bar. These same lawyers can devote themselves to valuable public service and improvement of the profession. The bad news is that there is an ever increasing risk of more lawyers with age-related impairments and insufficient preparation for transitioning away from practice before a crisis forces that transition.
The Committee’s recommendations included a call to gather demographic information to construct a database and to study the challenges of an aging lawyer population. Melville, Caines, and Walker respond to this call. To begin, they find that Australian lawyers are aging—the proportion of solicitors 60 years and above has been increasing. Unsurprisingly, older Australian lawyers are overwhelmingly male: 13% of male solicitors are over 65 as compared to only 2% of female solicitors.
Melville, Caines, and Walker consider the likely causes of an aging lawyer population, including increasing life expectancy (still the case in Australia despite the pandemic), decisions to delay retirement associated with access to pensions and economic hardship concerns, and an enduring sense of identity and fulfilment in work.
The authors then turn to the consequences. Age-related cognitive impairment has received attention from scholars and regulators in the U.S. While there is an increasing focus on mental illness, age-related cognitive decline is not much discussed in the Australian profession. Melville, Caines, and Walker do not explain why the Australian profession differs on this account but speculate on why lawyers in both countries might continue to ignore competence concerns. It might be hard to detect when they are slowly developing symptoms. Lawyers value intellectual prowess above all else. Where decline occurs, lawyers might find it hard to ask for health accommodations for fear of stigmatization and other professionals unwilling to “have those difficult conversations” with a declining colleague.Melville, Caines, and Walker consider studies of lawyer discipline which support a possible thesis of age-related decline—the average lawyer in the dock is an older male. They sensibly do not conclude that this is proof of age-related decline but rather consider other age-related factors contributing to misconduct. For instance, older lawyers might struggle with new technology. Older lawyers predominate in solo or small practices. Leslie Levin has described the range of complex structural and cultural factors that might lead to lawyers in these firms being more subject to complaint.
The article also provides an excellent discussion of the differing impacts of aging for male and female lawyers. As women lawyers age they do not have wage parity and consequently as large of a savings for retirement. Baby boomer women lawyers, while they are more likely to have experienced interrupted careers, might feel a sense of loss and grief in relinquishing a hard-fought-for career. Finally, the authors reflect on the largely unspoken impact of menopause on women lawyers. These are all factors that require further study and consideration by the profession.
So what to do about negative implications of an aging workforce? Melville, Caines, and Walker consider potential regulatory responses to age-related cognitive decline, such as mandatory reporting. Unlike Australia, mandatory reporting of ethical misconduct, including that caused by mental impairment, has long been in place for many U.S. and Canadian lawyers. Yet, as they concede, commentators have documented a range of flaws of this system including being reactive and a lack of compliance.2 This is therefore not offered as a complete solution. Mass retirement is also not recommended but they urge reimagining careers to support professional regeneration and public orientation through mentoring and development of emeritus pro bono programs. They draw on data documenting a lack of succession planning in many legal practices and point to the urgency of redressing this problem.
Melville, Caines, and Walker’s article is recent, but their data is largely pre-pandemic. Yet, this does not detract from the importance of their work to sound an alarm and call for action. While the article focuses on the negatives, they also suggest the importance of recognising that older lawyers have much to give to the profession if we adequately plan to better capitalise on these strengths.
- Baby Boomers trail Millennials by a fairly small margin. Richard Fry, Millennials Overtake Baby Boomers as America’s Largest Generation, Pew Research Center (2020).
- See for instance, Andrew Flavelle Martin, Mental Illness and Professional Regulation: The Duty to Report a Fellow Lawyer to the Law Society 58 Alberta L. Rev. 659 (2021).
