This article was originally published December 1, 2012 in the Voice of Experience. The text of the article posted below is published with full attribution to the American Bar Association.
Representing elderly people and those preparing for being elderly with respect to issues uniquely related to the aging process is the role of the elder law practitioner. Does an elderly lawyer bring any special experience or insight to an elder law practice?
As anyone who has practiced being a lawyer for more than 50 years either instinctively knows or has learned over the decades, there are three qualities that enable one to survive, if not thrive, as a practitioner:
These qualities are interconnected. They have enabled me to evolve from being primarily a regulatory and business lawyer to also being an elder law practitioner.
Affability: It is hard to imagine anyone having a career in the private practice of law not being an empathetic “people person.” An extravert personality is not essential, but caring about people and the particular circumstances each client presents to the lawyer is essential. There is a correlation between one’s capacity to be approachable, friendly, hopeful, rationally optimistic, and non-fearful, and one’s effectiveness in any community, whether it is a law firm, family, social setting, congregation, or civic or professional group.
Confidence: Graduation from law school and passing the bar exam start the lifelong process of confidence-building for being a lawyer. Those experiences affirm that in the informed judgment of others we can “think like a lawyer.” However, it is years of day-to-day practice (listening to clients, analyzing the situation each presents, screening the relevant facts against “the law” as we understand it to be or as it might become, consulting with attorney colleagues, then failing and succeeding and again, succeeding and failing) that equips us to have the confidence both we and the clients require in order for us to provide the service each client seeks and needs.
Competence: Apart from the fact that lawyers are ethically required to be competent to perform whatever service we offer to clients, it is also obvious that competency is the foundation for confidence. A competent elder law attorney is patient and compassionate and must understand the complexity of family and other relationships. Knowledge and interpretation of court rules, statutes, regulations, and administrative/judicial opinions are also critical in order to prepare wills and trusts and deal with tax, Medicare, Medicaid, nursing home, and countless related issues. Familiarity with basic business principles and practices, including those relating to financial management and investment, contract drafting and interpretation, and administration is as essential to an elder law practitioner as it is to a business lawyer.
My first job after graduation from law school was as a law clerk for a judge on the U.S. Court of Appeals for the Fourth Circuit. I learned something about how law is made and interpreted, but I mostly learned from mistakes, both mine and others’, that diligence and careful attention to detail are critical to achieving the sought-for outcome of any legal assignment. The cumulative effect of mistakes and inadequate preparation is costly and likely will adversely affect a client’s interest. I learned that every client that an attorney has the honor and privilege of representing, rich or poor, guilty or innocent, limited or bright, friendly or hostile, cooperative or uncooperative, young or old, is entitled to the lawyer’s best efforts, best judgment, best lawyerly skills. I early realized that the essence of being a lawyer involves first understanding the client’s needs and interests and then persuading decision makers (including sometimes the client) to act in accord with the client’s interests, all without imposing the lawyer’s personal values and biases on either the client or decision makers.
From that law clerk position, I joined (as the eleventh lawyer hired) what was then a small Washington, D.C., law firm that eventually grew to be a multi-office firm with more than a thousand lawyers. Its practice was exclusively representing large corporations with respect to antitrust issues. My job, like that of most associates in the days before computers, was to digest thousands of pages of hearing transcripts and draft briefs to the courts of appeal and an occasional petition for certiorari to the U. S. Supreme Court. My prior law clerk experience qualified me for much of this work, but on the job, I learned the basics of administrative law, economic regulation, and how at least some elements within “big business” think. I also learned what it means zealously to represent a client.
Initially, my circle of friends and contacts in my new “hometown” consisted of college and law school friends and a fellow Fourth Circuit law clerk, all of whom had also come to Washington to start their careers. Because Washington, then as now, was welcoming to newcomers, I was quickly accepted as an active participant in both church and bar association communities. None of these contacts had need of an antitrust lawyer, but some of them needed a will, particularly when they married and began to have children. My employer firm was wise in allowing young associates to add to our firm-generated workload the rewarding experience of representing clients who actually sought—and would pay for—our services as fledgling lawyers. With the benefit of hindsight, I now see this policy and practice as alleviating the boredom resulting from the tedious, albeit critically important, “grunt work” we were required to perform for endless hours (even then) for what, for us, was a distant, impersonal corporate client. The “will clients” became what then felt like my first clients.
I next served for about a year-and-a-half as the first executive director of a community action organization (receiving the first grant under President Johnson’s War on Poverty). Our mission included providing legal aid services, a preschool program, and other community organizing efforts. Budget limitations required me to be the first legal-aid lawyer as well as the program administrator. I quickly acquired many new clients who presented issues quite unlike those I had dealt with before. In order to represent them competently and zealously, I had to acquire new skills and learn the rules, procedures, and principles applicable to the areas of law with which my new clients and I were confronted. Also, like all managers, I was required to plan, organize, supervise, inspire, challenge, and be accountable. All of this experience was building my competency to function as an eventual elder law practitioner.
For the next 16 years, I was first an associate and then a partner in a mid-sized law firm in Washington. Initially, its practice was almost entirely devoted to airline regulation. The desirability of diversifying the practice was early recognized, especially when the economic deregulation of the domestic airline industry during the Carter Administration was underway. Since I then had a quite modest estate planning practice, I was “elected” to be a participant in our diversification efforts. We developed a general business regulatory practice, which included serving as general counsel for a small publicly-held company, representing clients with government contract issues, and providing comprehensive legal services for start-up and growing small businesses and nonprofit organizations. We also continued to develop the estate planning and administrative practice.
Eventually I started another firm, which for 30 years has provided estate planning, trust and estate administration, and general business and elder law legal services. The basic competency for all of this practice entails developing an empathic understanding of the client’s concerns and needs as well as the regulatory scheme applicable to the specific task at hand, and then applying basic business-like organization, planning, and execution to the situation presented by the client. We assist clients who are starting or building a business, managing a complex organization, both for profit and nonprofit, and planning for disability and eventual death. Within the elder law practice, in particular, we assist clients in implementing their personal care and financial plans.
As one looks back on 50 years at the bar, it is easy to see how today’s practice evolved over those decades. One wonders, however, how much more effective one might have been had there been intentionality and focus in planning and developing an elder law specialty. Whatever the outcome of such pondering, I can testify that the practice of a business generalist and elder law practitioner is both professionally satisfying and rewarding. I also know from experience that the basic qualities that enable anyone to survive and thrive in the private practice of law and other endeavors as well are:
Empathic affabilityin order to be seen by others as someone who can and will understand the client’s situation and reasonably respond to it.
Confidence in one’s capacity to understand the client’s situation within the relevant legal framework, discern a wise outcome consistent with the client’s interests, and faithfully execute or facilitate the faithful execution of the client’s plan/intent by others.
The capacity and determination to acquire and maintain competency to do the work required by the client and undertaken by the lawyer.
Thus the life and times of an evolutionary elder law practitioner.
John H. Quinn Jr. is the founding partner of his firm, Quinn, Racusin & Gazzola Chartered, in Washington, D.C. His areas of specialization include business and corporate law, fiduciary law, estate planning and elder law, generally, and business litigation.