Periodically I see someone with whom I have not spoken in a while, and they ask me if I am still practicing law. When I tell them no, often they will say: “I did not know that attorneys retired.” In some sense we will always be attorneys; however, attorneys do retire from active practice, and this article will explore some of the ethical ramifications of retirement.

When we became attorneys, we were administered on Attorney’s Oath that requires us to abide by the rules of professional conduct and act always within the high standards of our profession.

In addition, several years ago the courts and the Idaho State Bar adopted the “Standards for Civility in Professional Conduct.” While these standards are voluntary, they exemplify the “high standards of (the) profession” referred to below.

            The decision to retire from the practice of law marks a significant transition in a person’s professional life, to say nothing of their personal life, requiring retiring attorneys to navigate a new phase of professional and ethical responsibilities. Even after stepping away from active practice, retired attorneys in Idaho must remember their obligations under the Idaho Rules of Professional Conduct (“IRPC”) as well as other considerations that arise uniquely for those who have left the profession. This article examines these obligations and provides guidance on maintaining professionalism and ethical integrity after retirement.

Transitioning Out of Practice

Attorneys are subject to the Attorney’s Oath regardless of the area of law in which they practice—private, public, corporate, non-profit, and so forth. There are too many fields and specialties in which attorneys work to enumerate them all, but retired attorneys who retain their licenses in whatever capacity are bound to conduct themselves personally and professionally in conformity with the “high standards of the legal profession.”

Rule 1:16(4) of the IRPC governs the termination of representation of a client, including by retirement. Attorneys planning to retire must take reasonable steps to protect their clients’ interest, including:

Providing Notice. Clients should be informed well in advance of the attorney’s intent to retire, allowing sufficient time for the client to seek alternative representation.

Returning Client Property. Rule 1.15 requires attorneys to return client property and unearned fees promptly.

Facilitating File Transfers. Attorneys must ensure that client files are transferred to new counsel or returned to the client, maintaining confidentiality as required under Rule 1.6.

Reassignment Within a Firm. If the retiring attorney is associated with a firm of two or more attorneys, they need to communicate with the client to determine if the client wishes to remain with the firm or transfer to another representation. That determination will depend on various factors, but the client should be allowed to make that decision.  If it is a client of the firm, the client would probably appreciate a referral within the firm, but the attorney cannot make that decision unilaterally.

Extended Absences. Although not in retirement per se, an attorney make take an extended leave of absence while performing public or religious service, for illness, heavy and lengthy involvement in another case, etc. Once again, notice needs to be provided to the client of the attorney’s absence.  However, in these situations, it is more likely that another attorney that has been working with the soon-to-be absent attorney will be able to step in.  Nonetheless the client should be advised and consulted in advance.

Trust Account Obligation. Closing a law practice involves resolving all financial matters, including finalizing trust account distributions. Retiring attorneys should consult the Idaho State Bar’s guidance on trust account management to ensure compliance with the safekeeping provisions of Rule 1.15.

Succession Planning. The IRPC Rule 1.3 Commentary emphasizes the importance of preparing for unexpected circumstances. Retiring attorneys, especially sole practitioners, should implement a succession plan designating another attorney to oversee the orderly transfer of client matters in the event of death or incapacity. Succession planning should be started early to ensure that the professional obligations are fulfilled.

Post-Retirement Status Options

            The Idaho State Bar provides several pathways for retired attorneys:

Emeritus Status. Under Idaho Bar Commission Rule 228, attorneys may elect emeritus status, allowing them to provide pro bono legal services under the auspices of a qualified legal services organization such as the Idaho Volunteer Lawyers Program and Idaho Legal Aid Services or other non-profit organizations. This option enables retired attorneys to stay engaged with the profession while serving their communities.

Inactive Status. Attorneys who no longer wish to practice but want to retain membership in the Idaho State Bar may transfer to inactive status. While exempt from continuing legal education (“CLE”) requirements, inactive members must still adhere to certain ethical standards, including prohibitions on unauthorized practice of law under Rule 5.5.

Resignation. Some attorneys may choose to resign from the Idaho State Bar entirely.  Resignation entails relinquishing the right to practice law and requires compliance with procedures outlined in Idaho Bar Commission Rule 306. Notably, resignation does not absolve attorneys of past ethical violations.

Senior Member. Rule 302 (d) (1) describes the status of a senior member as any active, inactive, or judicial member aged 65 or older who is not engaged in the practice of law and has submitted a request to the Bar asking for transfer to senior status. The annual fee is established by Rule 304 (d). The licensing requirements for senior status are the same as for inactive members.

Active or House Counsel Member. Some attorneys, while denominating themselves as retired, may continue to maintain an active license, but choose not to utilize it. This may be particularly true of those attorneys who are aged 72 or older. They can maintain an active license for an annual fee of $70, the same fee as an emeritus member or a senior member who is over 65 years old.   There may be several reasons for this option, but it requires care on the part of the attorney not to inadvertently  offer legal advice outside the narrower scope allowed to the Emeritus member, if they do not maintain malpractice insurance.

Ethical Considerations Post Retirement

Retired attorneys remain bound by several ethical obligations, even after ceasing active practice:

Confidentiality. Rule 1.6 imposes a continuing duty to protect client confidences. Retired attorneys must safeguard all information acquired during the representation of clients, ensuring compliance with this foundational rule.

Avoiding Conflicts of Interest. Retirement does not absolve attorneys of other duties to former clients.  Rule 1.9 restricts the representation of new clients in matters substantially related to those handled during active practice if the interests of the former client are materially adverse and the attorney has retained an active license. Even an Emeritus licensee may confront this rule if their limited representation poses a possible conflict with a prior client.

Prohibition on Unauthorized Practice. Retired attorneys who hold inactive status or have resigned must avoid the unauthorized practice of law, as outlined in Rule 5.5. Activities such as providing legal advice, drafting legal documents, or holding oneself out as a practicing attorney may constitute violations.

Civility and Professionalism. The Idaho Standards for Civility in Professional Conduct, adopted by the Idaho State Bar, encourage attorneys to uphold civility and professionalism. Retired attorneys who serve as mentors, arbitrators, or in other professional capacities should model these standards. Unless an attorney completely distances themselves from the law, almost any retired attorney is still held to the Oath they took on admission to conduct themselves in conformity with the high standards of their profession.

Continuing Legal Involvement

            Retirement offers opportunities for attorneys to remain engaged in the legal and non-legal community without maintaining a full-time practice. These roles allow retired attorneys to leverage their experience while adhering to ethical standards:

Mentorship. Retired attorneys can serve as mentors to newer members of the bar, sharing wisdom and fostering professionalism within the legal community. Mentorship programs often provide structured opportunities to guide less experienced attorneys.

Mediation and Arbitration. Retired attorneys with expertise in specific areas of law may serve as mediators or arbitrators. These roles demand adherence to impartiality and confidentiality standards under the IRPC and other governing bodies. The retired attorney acting as mediator must be careful not to hold themselves out to be practicing attorneys if they are working under a limited license. They can indicate that they have legal experience.

Legal Education and Writing. Retired attorneys may contribute to the profession through CLE presentations, writing articles, or authoring legal treatises. These activities promote the advancement of the law and support the professional development of active practitioners. The attorney’s obligation not to intentionally mislead or misrepresent in presenting information applies to retired attorneys.

Pro Bono Work. Emeritus attorneys can provide pro-bono legal services, addressing unmet legal needs in Idaho communities. Organizations such as the Idaho Volunteer Lawyers Program facilitate opportunities for retired attorneys to give back to the community. There are also other programs within which retired attorneys can provide pro bono services. Of course, service in other non-legal community organizations is also available, if no misrepresentation is made regarding the status of their license.

Managing Challenges Unique to Retirement

Health and Wellness. The Idaho legal community’s emphasis on wellness extends to retired attorneys.   Maintaining mental and physical health is critical, particularly for those transitioning out of high-stress legal careers.

Navigating Technology. Retired attorneys must consider the ethical implications of technology, particularly concerning the storage and destruction of electronic client files.   Rule 1.6(c) emphasizes the importance of safeguarding client information against unauthorized access or inadvertent disclosure, even by retired attorneys. 

Addressing Complaints and Liability. Retired attorneys may still face grievances or malpractice claims related to their active practice. Maintaining liability insurance for a period after retirement may provide protection against such risks. Some pro bono organizations such as IVLP may provide malpractice insurance.

Concluding Thoughts

Retirement from the practice of law does not signify an end to the ethical and professional responsibilities that define an attorney’s career, nor does it cancel the Oath of Office taken by attorneys or spell an end to an attorney’s ability to benefit society. By adhering to the Idaho Rules of Professional Conduct and embracing opportunities for meaningful engagement, retired attorneys can continue to contribute to the legal profession while navigating this new chapter with integrity and purpose. In any case, an attorney never ceases to be “an attorney” except by active choice or neglect.

Attorneys contemplating retirement are encouraged to consult resources provided by the Idaho State Bar. The Idaho State Bar’s Succession Planning website, handbook, and other resources are invaluable tools for planning a smooth transition, ensuring compliance with ethical standards, and protecting clients’ interests.[1] For those seeking to balance a legacy of service with personal well-being, retirement presents both challenges and opportunities that, when approached thoughtfully, reflect the highest ideals of the legal profession.

Larry Hunter has served the profession and his community well over the past four decades, taking his retirement in 2020. He practiced with Moffatt Thomas for the entirety of his 45-year legal career, the firm later merging with Hawley Troxell. Larry served as Bar Commissioner from 2001 to 2004, and as Idaho’s delegate to the American Bar Association House of Delegates. Larry and his wife, Iris, have six children and 22 grandchildren. They enjoy traveling, family time, reading, golfing, kayaking, and several other fun pastimes.

[1] These resources are available at https://isb.idaho.gov/member-services/programs-resources/succession-planning/ and https://isb.idaho.gov/member-services/programs-resources/succession-planning/additional-resources/.