Boomer retirements ought to be a boon for law school clinics.
The Hidden Brain podcast episode Cultivating Your Purpose begins with an effective metaphor that is well-known to aging Baby Boomers: Dustin Hoffman, playing Benjamin Braddock in “The Graduate,” is drifting aimlessly on a raft in a swimming pool, as he has been doing for weeks after graduating from college. When Benjamin confirms to his father that he has no plans whatsoever for the future, Benjamin’s father leans over him and demands to know “what was the point of all of that hard work?” Benjamin responds, “you got me.” Unfortunately, many Baby Boom lawyers are asking themselves the same question after they retire or approach retirement—“what’s the point?”
This essay considers two problems that may have a common solution. First, many senior lawyers are searching for a purpose in their post-retirement lives. Second, although law-school clinics could make substantial contributions to satisfying the unmet needs for legal services while also providing meaningful practical training to their students, many law schools have hesitated to expand their clinical-education programs, at least in part, because they are more expensive than traditional doctrinal-lecture courses. See, e.g., Deborah Merritt, “Costs and Clinics,” Law School Cafe, May 6, 2017.
Biases upfront
It is worth mentioning my background upfront so that you can account for my biases.
I was a partner in a global law firm for several decades, serving in the last 15 years as the firm-wide managing partner of operations. When my third term in full-time management ended, I was in my early 60s and had to choose among three choices: retiring from legal practice, rebuilding my client base, or choosing a different role for the last segment of my career.
I never considered actual retirement, and rebuilding my client base from scratch was much too daunting (one of the common myths is that most firms have surplus work available to hand out to senior partners who do not have their own client relationships, see Post 251). I had enjoyed teaching various courses during my career so I explored teaching opportunities. Fortunately, I “matched” with the law school at my undergraduate alma mater and started a new entrepreneurship program that comprises a clinical program and a course. Managing the clinical program has been nothing short of wonderful for me—representing startup and early-stage businesses from all over my state.
In Cultivating Your Purpose, the host, Shankar Vedantam, interviews the Cornell psychologist Anthony Burrow, who has been studying the importance of purpose in life. Dr. Burrows explains that people often drift, like Benjamin Braddock, without any direction in their lives when they confront major transitions, such as entering the workforce or retirement. Dr. Burrow describes this unsettling state as “languishing,” “simply not feeling engaged with one’s life” and “not knowing what’s next.”
Since leaving Big Law, a number of my former partners, as well as partners at other firms, have reached out to me to discuss what they could do in retirement. Many of my colleagues were aware that I landed a law-school teaching job (and I remind some when I solicit them for donations to support my pro bono legal clinic). The podcast with Dr. Burrow reminded me of these conversations.
The wrinkles of law firm retirement
Law firms are different from most employers in that they can force partners to retire. The federal Age Discrimination in Employment Act prohibits mandatory retirement for most employees. However, because most law firms are organized as partnerships with senior lawyers as partners rather than employees, the ADEA does not provide partners with protection against age discrimination. See, e.g., Arthur J. Ciampi, “Discussing Law Firm Mandatory Retirement,” NYLJ, May 21, 2020 (discussing recent Eighth Circuit case that ruled against equity partner suing for age discrimination).
Law firms vary as to whether they have retirement ages and the ages at which retirement is imposed. This topic was in the legal news during the summer of 2021 when Martha McGarry, the first female M&A partner at Skadden Arps, left to become the co-head of M&A at another firm because she was approaching Skadden’s mandatory retirement at age 70. See Roy Strom, “Skadden’s First Female M&A Partner Says No to Forced Retirement,” Bloomberg Law, Aug 5, 2021 (Martha McGarry moving on to Mayer Brown). Another recent story reported examples of lawyers in major law firms finding ways to stay on until age 100, sometimes as a partner! See Susan DeSantis, “Law Firms Ease Mandatory Retirement Policies, but Tensions Remain,” Law.com, Feb 4, 2019.
Economics often drives both the rules and the exceptions. For example, some firms follow a hybrid approach under which there is mandatory retirement age, say, at 65, but the management of the firm may “rollover” a post-65 partner annually depending on the senior partner’s performance. Firms use this feature to keep aging partners who are valuable because, in most cases, they control significant clients and may move elsewhere or they have particular expertise that the firm has not effectively planned to replace.
The rollover policy is imperfect because it incents an aging partner to hoard clients as the partner approaches retirement. Moreover, it puts the post-65 partner in a humbling position analogous to that of a very senior associate in that the post-65 partner has to “make partner” again each year in order to stay with the firm another year. In addition, the rollover policy often alienates longstanding senior partners whom the firm jettisons while retaining others in the same age group.
Purpose, it turns out, is important
It is apparent from my personal experience that many retiring or retired partners no longer have a sense of purpose, i.e., they do not have a future direction and they do not know what is next. Perhaps the practice of law was enough to get most of us through a Braddock-type malaise of our youth, yet apparently we never really escape the underlying question of “what’s the point?” — it only returns with a vengeance later in life.
The experience of my lawyer-peers is consistent with the general population, as there is empirical research showing that “younger and middle-aged adults exhibit significantly higher levels of eudaimonia than older adults.” Eric Charilaos Karaoylas, “Changes in Well-Being Across the Lifespan:A Cross-Sectional Survey of Young, Middle-Age, and Older Adults,” MA Thesis, Univ of Manitoba Dept of Psychology (2010). The term “eudaimonia” is a state of mind associated with flourishing or living a life that is worthwhile, fulfilling, and elevating — according to at least a subset of psychologists, something much better than mere happiness. See Neel Burton, “What is Eudaimonia,” Psychology Today, June 28, 2020.
This decline in fulfillment is unfortunate not just because the abilities of retired lawyers are wasted, but because, as Dr. Burrows states in the podcast interview, there is substantial evidence that a sense of purpose promotes physical and mental health and general wellbeing. See Cultivating Your Purpose at minute 25 (transcript available). Dr. Burrows reports that “one of the most compelling findings” is that a sense of purpose “predicts longevity” and that there is “a whole constellation of studies” to suggest that purpose is associated with such positive physical health outcomes as a lower incidence of heart attacks and strokes, and quicker recoveries from surgeries.” Dr. Burrows adds in his interview that a sense of purpose is also associated with slower rates of cognitive decline and a lower risk of developing Alzheimer’s disease. See also Musich et al, “Purpose in Life and Positive Health Outcomes Among Older Adults,” 21 Population Health Management 139 (2018).
Dr. Burrows distinguishes between goals and purpose. Goals are “intentions that can be accomplished.” In contrast, purpose is “aspiring or intending to accomplish something that is ahead of you.” A life purpose is always ahead of you, such as being a caring parent or grandparent, and is never fully done.
The podcast host highlights this distinction in reference to Andre Agassi’s speech at his induction into the International Tennis Hall of Fame. Agassi hated tennis once he had accomplished his tennis goals (“that hole that I dug for myself”) but became motivated once again when he realized that his purpose was not to be ranked number 1, but rather to entertain people.
Although it is possible for leisure activities to provide purpose, see, e.g., Nathan A Lewis & Patrick L Hill, “Does Being Active Mean Being Purposeful in Older Adulthood? Examining the Moderating Role of Retirement,” 35 Psychology & Aging 1050 (2020), many retired partners do not find motivation in a future of golf, tennis, and beach reading. To invoke another movie metaphor, a life that consists entirely of leisure can be a Groundhog Day experience. Sifting through his inbox, the popular author and podcaster Tim Ferriss notes that “[t]here are a lot of rich and depressed groundhogs” who thought that unlimited time was the end goal. See “The Weekend Retirement Test Drive: Groundhog Day and the Rest of Your Life,” Tim Ferris Blog, Feb 1, 2008.
For many retired partners, their reason to “get out of bed in the morning” is fulfilling diverse volunteer roles. A study at the University of Wisconsin supports the premise that formal volunteerism can provide purpose to retired people. See Emily A. Greenfield & Nadine Lewis, “Formal volunteering as a protective factor for older adults’ psychological well-being,” 59 J of Gerontology S258 (2004). Although not totally retired from practicing law, my brother, a former very active partner at a Big Law firm, is a good example of this—he clearly has a sense of purpose in his positions with several cultural organizations in his city.
Towards the end of the Cultivating Your Purpose podcast interview, the host asks Dr. Burrow about the writing of Dr. Viktor Frankl, a survivor of Nazi concentration camps, who maintains that “the why of survival” requires an orientation beyond one’s self. Dr. Burrow responds that purpose is “an ancient concept” that distills down to the question, “do you have a reason for living?” He added that there is a profound necessity that you have something yet to accomplish.
For some veterans of Big Law, such as the former Skadden Arps partner who did not want to retire at age 70, it may be possible to have a sense of purpose in representing large companies in their major transactions and litigation. In my own situation, however, it has been easier to have a sense of purpose representing humans as they engage in their startup and other early-stage businesses—my positive impact is obvious and quick.
For many Baby Boomers who witnessed the Watergate scandal, they went to law school in order to make a difference. If they achieved the typical successive goals of getting good grades, going off to Big Law, and then becoming partners, I submit that they may still be haunted by a lack of purpose representing the types of big businesses that can pay their firms’ legal bills. I have often thought that the absence of purpose in most Big-Law representations is the reason that pro bono representations in law firms are so popular. See, e.g., Brenda Sapino Jeffreys, “With ‘Pro Bono on Steroids,’ Law Firms Met Immense Need by Rising to the Occasion,” American Lawyer, June 28, 2021 (discussing surge in pro bono activities by large firms in response to George Floyd murder and the challenges brought on by global pandemic).
Using unmet legal needs to fill a purpose deficit
Now, let’s consider my proposal for using the talents of the many retired law partners who are not already fully engaged in leisure, structured volunteerism, family roles, or other activities.
As a lawyer who was in private practice for decades and is currently a teacher in a law school, I am a huge fan of clinical education, but law schools do not share that view universally. As mentioned above, clinical education is more expensive for law schools due to the cost of having a low faculty-to-student ratio in an educational setting that requires close supervision. Clinical instructors also have less stature within law schools than doctrinal professors. See Deborah Merritt, “Salaries and Scholarship,” Law School Cafe, Jan 13, 2018 (noting lower salaries, less job security, and lower “caste”).
Without re-litigating the merits of requiring at least some clinical education in the legal curriculum, it is worth noting a number of aspects of practical education. Law students often cite legal clinics as their favorite experience in law school, see, e.g., FAQs at Texas Law, and law schools often tout the breadth and depth of their clinics when trying to recruit new students, see, e.g., Minnesota Law boasting 26 clinical offerings. In 2014, the American Bar Association amended its accreditation standards for law schools to specify a minimum number of required experiential credits, which include clinics. Several years later, some educators are still advocating for much more. See, e.g., Robert Kuehn, “Implementation of the ABA’s New Experiential Training Requirement: More Whimper Than Bang,” Best Practices in for Legal Education, Apr 28, 2021.
There are probably professions that I have overlooked, but it appears that law is one of the few professions that does not require significant practical experience (consider, in contrast, the typical licensing requirements for physicians, engineers, accountants, architects, social workers, speech and hearing therapists, teachers and barbers). It seems that the only group that challenges the expansion of clinical education is the group that generally has little if any actual practice experience—the tenured scholars. Cf Jordan Rothman, “Law Professors Should Have More Practical Experience,” Above the Law, Aug 26, 2020 (recent grad chronicling his exasperation with lack of practical knowledge of his law professors).
The number of clinics in law schools varies widely, with Minnesota topping the list at 26 and many having far fewer than 10. See Mike Stetz, “Best Law School for Practical Training,” PreLaw, Spring 2021. While providing valuable practical legal experience to their students, law schools can provide important pro bono legal assistance to their communities and broader geographic areas. In most situations, law clinics provide representation to people who would not be represented otherwise. If the law clinics were not available, most of their clients would either ignore their legal needs or try to help themselves.
Clinics with a primary purpose to serve clients
I do not agree with the frequent statement that the primary purpose of legal clinics is education unless “education” is broadly defined to include learning the important aspects of client service. Specifically, representing an actual human in a legal clinic is not like cutting up a cadaver in medical school. If there is a lapse in care, a living, breathing person will actually suffer the consequences.
The students should share with their clients the thrill of victory and the agony of defeat. I distinctly (and fondly) remember my students being exuberant when we negotiated a favorable “standstill agreement” with rent abatement for a retail tenant that could not operate during the COVID pandemic. I likewise remember my students’ disappointment when we could not stop the repossession of a client’s transport minibus when the COVID pandemic forced the cancellation of the entrepreneur’s transportation contracts.
Part of legal education is learning to be responsible for the best interests of your client, and also learning to develop relationships and provide valuable, timely, and friendly service that leads to repeat engagements and referrals to other clients.
Some critics may argue that legal clinics provide limited educational benefits to their students because there may be few career opportunities in the particular subject areas of certain clinics. Although there may be few post-graduation jobs for students who represent low-income clients who cannot afford to hire lawyers, students in clinics learn practical skills that are readily transferable to future paying clients. Apart from the obvious importance of realizing that our substantive advice will have real consequences, my students learn, for example, that if they are sloppy or late, it will likely result in our having fewer future referrals from the economic development agency that referred the affected client to us.
Some areas where law clinics can make significant contributions towards satisfying the unmet legal needs in their communities include the following:
- Elder law—assistance with governmental benefits and counseling with respect to estate planning and such often-confusing matters as home-repair contracting, insurance policies and mandatory withdrawals from 401(k) plans and IRAs.
- Immigration—assistance with student and work visas and immigration proceedings.
- Taxes—preparation of simple tax returns for lower-income individuals. (How many lower-income people are missing out on the Earned Income Credit?)
- Consumer credit—advice with respect to student loans, credit cards, car loans, and lender and merchant regulations. (How many people know the assistance that the Consumer Credit Protection Bureau can provide with a credit card dispute?)
- Employment—advice with respect to terminations, misclassifications (employee vs. independent contractor) and unenforceable covenants not to compete.
- Personal bankruptcy.
- Residential rental evictions and home foreclosures.
Alas, this is all pure PeopleLaw.
The cost of re-tooling — is it worth the candle?
It is easy for most retired lawyers to say that based on their law-firm experience, they are not competent to give advice in most of the areas that I have listed above as examples. Yet, I submit that lawyers are brighter than that!
In my six years as a clinical professor, I have been forced to learn the basic requirements for numerous topics for which I always had subject-matter experts when I was a partner in Big Law. I decided that I needed to read the Uniform Limited Liability Company Act page by page so that I could counsel startups appropriately. I decided that I needed to learn about “restricted stock” so that I could introduce entrepreneurs to vesting and alert them to the benefits of the Section 83(b) loophole. I returned after a multi-decade hiatus to the Restatement of Contracts to re-learn the excuses of performance that we could assert on behalf of defaulting clients during the COVID pandemic (word spread quickly that we could help distressed tenants).
Learning new areas is fun and keep in mind that learning at an advanced age supposedly reduces cognitive decline. See Alan Mozes, “Lifetime of learning may prevent dementia,” CBS News, June 24, 2014 (reviewing the research and noting “it’s never too late to exercise your brain”).
Clearing conflicts and ensuring malpractice coverage
Retired lawyers may prefer to undertake pro bono work while staying with their respective law firms, even with no compensation. However, this often presents ethical and business conflicts for law firms.
For example, with most law firms representing one or more financial institutions in some capacity, it would be difficult for a pro bono lawyer at a law firm to challenge the unfair lending practices of a financial institution even when the law firm does not represent that particular lender. Law school clinics typically do not have these same concerns.
Retired lawyers may also prefer to volunteer to help with certain projects on a pro bono basis from time to time without associating with any organization. This provides ultimate flexibility but it raises the issue of malpractice coverage. Law schools or their universities can provide malpractice coverage or indemnification for the lawyers working in their legal clinics, even those “working for free.”
From a flexibility standpoint, it is likely, based on my own experience, that legal clinics would welcome part-time senior lawyers to work as supervisors. It would be far better to have a continuing relationship between a clinic and a lawyer vs. a “one-off” engagement so that both could reap the benefits of undertaking the inevitable subject-matter and clinic-procedure learning curves. In addition, with almost everyone now being familiar with Zoom and other remote-conferencing tools, there is probably an opportunity to do at least part of the supervisory role remotely.
Others agree
I am not the first lawyer or law school instructor to suggest that senior lawyers use their talents to bolster law school clinics. In an endowed lecture given over 20 years ago, Professor Marc Galanter presented a detailed analysis of the substantial human-capital resources available from the impending (and now present) wave of retirements of Baby Boom lawyers. His suggestion was for these lawyers to consider a second career in “public service lawyering” as a means of satisfying unmet legal needs. See Galanter, “Old and in the Way: The Coming Demographic Transformation of the Legal Profession and Its Implications for the Provision of Legal Services,” 1999 Wis. L. Rev. 1081 (1999)
Professor Galanter suggested a number of organizations through which senior lawyers could pursue their second careers, one of which was “the law school legal clinic, where the availability of retired lawyers might allow significant increases in staffing levels and mentoring potential.” Old and in the Way at 1107. Similar to my first point above, Professor Galanter’s speech emphasized the opportunity for senior lawyers to find meaning and purpose in their work by pursuing public-interest second careers.
* * *
My proposal to have senior lawyers work as supervisors in legal clinics contemplates individual initiative on the part of law schools, legal clinics, and senior lawyers. The wheels of any institution, particularly those on a higher-education train, turn very slowly, and the senior lawyers do not have enough time remaining for faculty committees and reports. Law schools and legal clinics could simply reach out to senior alumni, and senior lawyers could simply reach out to law schools after reviewing their respective menus of existing clinics.
I suggest that it is time for Nike’s trademarked slogan Just Do It!