Ethical Issues for the Aging or Retiring Lawyer

• Citation: Vol. 37 No. 3
• Year: 2025

Ethical Issues for the Aging or Retiring Lawyer

Vol. 37 Issue 3 Pg. 30

South Carolina Lawyer

December, 2025

BY TED A. WAGGONER

FEATURE

Submitted by the S.C. Bar Senior Lawyers' Division, reprinted and adapted with permission from American Law Institute Continuing Legal Education (ALI CLE), The Practical Lawyer, Volume 69, No. 6, December 2023

[Editor's Note: The original article text quotes from the Model Rules of Professional Conduct have been changed as necessary to reference the text of Rule 407, South Carolina Rules of Professional Conduct]

All lawyers think about retirement, whether or not they choose to plan for it. Apart from the complex logistical issues presented by retirement, there are ethical challenges that every lawyer must consider as well, including client communications and how to treat client files and other confidential information. Although the ethical rules will vary by jurisdiction, the Model Rules of Professional Conduct [see Editor's Note] provide a good starting point.

Client Questions On Lawyer Retirement Plans

A retirement question from a client can be a legitimate intrusion into a lawyer's personal life. Questions that older lawyers often hear include:

• Will you be able to handle my estate when it is time?

• Can you see me through the end of this litigation?

• Can my children get your advice and help with my business operations when they need it?

• How much longer will you be around for me and my business?

These questions assume that lawyers can predict their futures, or that they feel comfortable disclosing personal health information or potentially incomplete plans. Truthful answers run the risk of causing an early loss of income for the lawyer, since clients may want to move their legal matters to younger or healthier lawyers for legal assistance. Whether the lawyers practice as solo attorneys or in a firm will affect how a lawyer answers those questions.

Bill And Tina

Eighty-year-old senior partner Bill retired from his practice after he had made a few mistakes and was not so gently pushed out by the firm's lawyers. Almost immediately, the now-oldest lawyer in the law firm, Tina, at 61 years old, was asked by the firm's largest client when she was planning on retiring.

Tina plans to quit the practice before she is pushed out. Tina has set aside funds in the office's retirement accounts and has a nice nest egg for retirement. Bill also had a nice fund because of Tina's insistence on the plan more than 30 years prior.

These two lawyers approached their retirement planning differently but both face ethical questions.

Unplanned Retirement

Let's first look at Bill's situation. He did not plan to retire and would have been happy to die with his boots on, sitting behind the desk. What ethical issues are implicated by Bill's

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inactions, or lack of planning?

Rule 1.1: Competence

Rule i.i provides that "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

One of the biggest ethical issues faced by attorneys is whether they still have the requisite skill and expertise to competently serve their clients as they age. When an 82-year-old lawyer I know was questioned about his skills, he took a neuropsychological exam to prove his skills and competency to his partners. The report said that the lawyer had the "capacity and memory of the average 8o-year-old." The tested lawyer was pleased, but his partners were unsatisfied, because a legal professional should have a capacity for logic, memory, and analysis higher than the average person of his age.

Knowledge and skill are no longer enough to pass the "competency test." Comment 5 to the Rule includes thoughtfulness and preparation as part of competently handling a matter. Many states also include maintaining technological competence.

Bill's lack of planning, in essence, forced others to make the retirement decision for him: his partners—when they noticed his failing skills; his clients—when they called the partners to complain about Bill's neglect of their case; his his defense counsel—when a formal complaint was lodged; his doctor—when Bill was hospitalized for health reasons; or his spouse or children—when they have to explain to Bill that he must retire.

Rule 1.4: Communications

Among a lawyer's duties is a duty to keep clients informed about the issues that affect their representation by the lawyer or firm.

Rule 1.4 provides that:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(g), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

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(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Bill's decision to not properly plan for retirement precluded any informed conversation with his clients about their futures with the firm. Lack of planning for what his clients may have needed led to concerns and troubles for Bill's clients, as it has for other lawyers' clients.

In Florida Baru Nowacki, the Florida Supreme Court upheld discipline for an attorney undergoing cancer treatments who had delegated the day-to-day running of her law firm to paralegals and associates.^[1] The court found that Nowacki's "persistent pattern of client neglect and mismanagement" and failure to share "important information" with her clients violated Florida's version of Rule 1.4.^[2]

Another case involved a lawyer who was suffering from manic depression and neglected several cases.^[3] The court held that the lawyer's "persistent neglect of client matters and failure to communicate with clients" in violation of Rule 1.4 warranted probation.^[4]

In my experience, when retirement is forced upon a lawyer, it is a miserable situation for those who step up and force the lawyer to leave the profession. Those outside the family are. at least, less emotionally involved in the life of the lawyer who has not planned for the future.

Failing to plan is a poor way to address the competence issue, as it allows the lawyer to truthfully say, "I am not going to retire!" The "failure to plan" attitude is not the answer for the lawyer or for those around the lawyer. It may be an honest statement-but that answer also tells the perceptive client that the lawyer is not fully capable to competently help the clients with their legal needs. It tells the client that their lawyer is not a planner, which is admitting a weakness that most lawyers would prefer to hide.

Living The Plan

Tina has her retirement well-planned. She will timely notify her clients of her decision and advise them that they may choose to pick up their case file or it will be taken over by one of the several lawyers in her firm, as she has carefully picked one out to match their legal needs.

How does the ethical lawyer, who has planned and thought about the problems of aging and transitioning to retirement, handle questions about her retirement plan or her health? As always, we start with the Rules of Professional Conduct.

Rule 1.4 calls on us to "promptly comply with reasonable requests for information." State ethical opinions shed light on the duty to inform clients when a lawyer leaves the practice, which are generally discussed in the past tense, or when the lawyer moves from one firm to another (to allow the client to go with the lawyer or stay with the firm). There is also a duty to let clients know if the lawyer quits working on a client's matter,

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for any good (or not so good) reason.

But nothing in the Rules calls on the lawyer to alert the client of an impending retirement. They also do not call for notice of an unplanned serious illness, surgery, or other matter that may affect an aging lawyer. It makes sense with illnesses and medical matters—most health conditions do not allow for a prediction by the sufferer. Tina may be willing to discuss her retirement plans with a spouse or firm partner, but it is not a matter that most lawyers would willingly share with the court or with clients, prematurely.

Comment 7 to Rule 1.4 of the Model Rules of Professional Conduct (in most state versions) says. "A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person."

Most lawyers will admit to a desire to stay busy until they quit working (and a further desire to get paid for that work). There appears to be a slow-down in the practice as we age.

Retirement Notes from the

CAITLIN TURNER, GALLIVAN WHITE &BOYD

In many professions, age is the deciding factor in retirement. You reach a certain age, your retirement benefits are finally accessible, and "work" is a four-letter word you never want to hear again. However, the practice of law seems to attract personality types who just want to work forever. In the U.S., approximately one in eight lawyers are 65 or older.¹ As the Baby Boomer retirement age hits its peak², some attorneys in South Carolina may begin to consider retirement or a reduced workload. These transitions, whether instigated by age or circumstance, raise deeply personal and professional questions, but they also engage important ethical obligations under the South Carolina Rules of Professional Conduct.

Competence

Under Rule 1.1, South Carolina lawyers "shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."³

The landscape of modern technology is ever evolving, but a baseline proficiency in legal technology is expected. Comment 8 to ABA Model Rule 1.1 stresses the awareness of "the benefits and risks associated with re/evonttechnology," emphasis added, while South Carolina's Comment 8 to the Rule includes that to maintain competence, a lawyer should have "a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client," emphasis added. This difference may prove important as the legal field navigates the increasing rise of

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S.C. Rules of Professional Conduct

Al; if you do not use Al in your practice do you still need a reasonable understanding of its benefits and risks? The answer to this question will eventually present itself, but in the meantime, it feels safe to say that lawyers cannot ignore the digital tools that shape modern legal services.

None of this is to suggest that if you had to ask someone, "What does 'Al' stand for?" that you are incompetent and must retire immediately. Rather, it is to point out that reasonable steps can easily be taken to keep abreast of changes in the law and its practice. For some attorneys, this may mean seeking additional training or support to remain active in practice. The South Carolina Bar Practice Management Assistance Program provides free assistance with questions about ethics, law office technology, succession planning, etc., and is available to Bar members of any age.⁴

Communication &Termination of Representation

Comment 7 to Rule 1.4 of the South Carolina Rules of Professional Conduct says, "a lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person."⁵ The decision to retire may also implicate Rule 1.16(d), which governs terminating representation. When terminating representation, lawyers "shall take steps to the extent reasonably practicable to protect a client's interests," including giving reasonable notice to the client, allowing time for substitution, and returning papers and property.⁶ This suggests that lawyers should notify their clients well in advance of retirement and provide, at a minimum, the anticipated timeframe of retirement, referrals if the case will be ongoing, return of client files, and any applicable deadlines.

Ethical Exit

The duties of competence and communication do not end when a lawyer begins to consider retirement. Planning in advance for retirement, being honest in one's abilities, and being upfront with clients, will allow retiring lawyers to leave their practice in full compliance with their ethical obligations.

¹ American Bar Association, Profile of the Legal Profession: Demographics, AM. BAR ASS'N (2024), www. americanbar.org/news/profile-legal-profession/ demographics.

² Barbara A. Butrica et al., The Changing Impact of Social Security on Retirement Income in the United States, SOC. SEC. ADMIN. (Jan. 1,2005), www.ssa. gov/policy/docs/ssb/v65n3/v65n3pl.html#:~:tex-t=The%20results%20suggest%20that%20baby,in%20 Social%20Security%20replacement%20rates.

³ S.C. App. Ct. R. RU LE 407 RPC 1.1

⁴ Practice Management Assistance Program, SC BAR, www.scbar.org/for-lawyers/quicklinks/practice-management (accessed Sept. 12,2025).

⁵ S.C. App. Ct. R. 407, Rule 1.4 cmt. 7.

⁶ S.C. App. Ct. R. 407, Rule 1.16(d).

both in terms of our client's demands and a lawyer's desire to work at fullspeed. Giving clients advance notice of retirement may prompt the busy client to protect its interests and convenience by seeking other counsel and we must respect that decision.

The lawyer as fiduciary, putting the clients' interests first, gets tested when the questions legitimately start. We must tell our clients the truth when asked. We may put the information into context with the client, but we are required to avoid causing our client or the court system a problem.

Solo Or Small Firm Lawyer?

It is often easier for lawyers in a firm to respond to these difficult questions by reassuring clients that another lawyer in the firm is available to help. For a solo lawyer the question is more problematic. Do you offer the name of a backup lawyer, a competitor, or leave clients on their own to find assistance?

That is where a solo lawyer's discussion of planning for any absence comes in handy. Let the client know that one skill you have—that they have responded to and benefitted from—is your skill at planning for their legal issues. Then turn that around and advise them that you use those same skills in planning for yourself and your family. "I have been planning my family's future for a while now and I will live out my plan, as best I can." You may have to dodge the question of whether the plan goes into effect this month or next year, but you really are duty-bound to discuss your answer to their important questions.

As the Preamble to the Model Rules says "... a lawyer is also guided by personal conscience and the approbation of professional peers."

Remember the Cleveland Browns great running back, Jim Brown, who retired when he was 29, at the end of a season when he led the NFL in all major rushing statistics, choosing to leave at the top of his game. If you leave the practice while you have skills in reserve and before others have to apologize for your actions as a lawyer or have to report you to the Lawyers Helping Lawyers program or Bar, we promise that we will speak highly of you and your career. Plan for it.

Ted A. Waggoner is Of Counsel at the firm Peterson Waggoner &Perkins, LLP. He's admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit, and the United States District Courts in the Northern and Southern Districts of Indiana. He has served as an Adjunct Professor of Law at Indiana University Maurer School of Law and was an active member in the Indiana State Bar, the Indiana Trial Lawyers Association, and the Association of Trial Lawyers of America.

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Notes:

^[1] Florida Bar v. Nowacid, 697 So.2d 828 (Fla. 1997).

^[2] Id. at 833.

^[3] In re Disciplinary Action Against McGrath, 462 N.W.2d 599 (Minn. 1990).

^[4] Id. at 601.

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