Fifty Years of Elder Law

It’s October. And that means that all things progress — to fall, to the end of the year, to the change of seasons, to Halloween. Also, it means that I have a personal milestone arriving around the bend.

October 23, 1976. That was the day I stood up in a crowded convention hall and swore to adhere to the codes of conduct governing lawyers. Not to put too fine a point on it: that’s the day I became a lawyer.

A lot has happened in those five decades. By that, I mean to include my personal changes and also huge changes in the practice and substance of law.

My early career

I started in private practice with a $500 investment in a new desk (thanks, Ron, for the loan). And a partner and early mentor: the late Edward C. Vincent. Ed had graduated a year before me, and had an extra office in his suite. Somehow I persuaded him to agree to a partnership, and the law firm of Vincent and Fleming was born.

Both of us did everything that came through the door. Divorces, juvenile work, contracts, personal injury, misdemeanor representation. Even the occasional felony representation. Ed was good at the criminal work — in fact, he was good at it all. I quickly figured out that criminal and divorce work were not really for me.

But Ed was a great mentor. He taught me about the economics of law practice. Also the ethics, and the importance of actually helping clients. Sure, I knew all that — but Ed made it central to my professional thinking.

Tom Curti and me

Within a few months, Ed and I “persuaded” a law school classmate of mine — Thomas A. Curti — to join the firm. We became the juggernaut of Vincent, Fleming & Curti. Or at least “juggernaut” was how we thought of ourselves. We didn’t dare ask others for validation.

I say “persuaded,” incidentally, because — well, that is a story that I like to tell over a glass of wine or something stronger. Suffice it to say that Tom came to work one Monday morning and found that he had moved to a new office.

All good things come to an end. Vincent, Fleming, Curti and Gjurgevich (by that time we had added James L. Gjurgevich to the firm) began to dissolve in 1979, and we mostly went our separate ways. But those three years had been seminal for me.

I then spent two years as a Special City Magistrate in Tucson City Court. Moving from practice behind the bench was its own kind of challenge. It took me some months before I could completely stop myself from calling out “I object” when one of the lawyers asked a question badly.

Then I moved into the relatively new office of the Public Fiduciary. I became the Pima County Public Fiduciary in 1981, and held that public office until 1986. It’s forty years later, and I still regularly get asked “weren’t you the public fiduciary?” Yes, shortly before you were born.

“Elder law” became a thing

It’s a little bit surprising to realize that “elder law” didn’t even exist when I started practicing fifty years ago. In fact, no one had ever spoken or heard that phrase until about the time I left the Public Fiduciary’s office in 1986. The National Academy of Elder Law Attorneys was founded in 1987. I joined a year later. The phrase was still new in 1994, when Tom Curti and I rejoined as Fleming & Curti, PLC.

By then Tom and I had moved into a 75-year-old house on the edge of downtown Tucson. We would be there for almost 30 years.

At first Tom had a more general practice. I had limited my practice to “elder law” even though not everyone knew what that meant. And Tom quickly figured out that there was a lot of work to be done, and a natural symbiosis between our styles. By the late 1990s, we were a solely elder law firm.

What did that mean? We did a lot of estate planning, probate and trust administration, long-term care planning and guardianship and conservatorship work. We began to serve as conservator, trustee, personal representative or even guardian — much like I had done as Public Fiduciary.

I also got heavily involved in special needs planning. Starting from a 1986 court settlement that generated proceeds for a number of people receiving Medicaid and SSI benefits, I had to learn what was then a brand-new trend across the country. It wouldn’t be until nearly a decade later that the kind of trust I was pioneering would even be formally recognized in the law.

The arc of Fleming & Curti, PLC

We involved other lawyers, and even partners. But the current shape of Fleming & Curti, PLC, began to form with a handshake in late 2010, when I interviewed a young law student for a possible clerk position. Elizabeth Rollings (as she was then known) met me in the lobby and stuck her hand out for what turned out to be a fateful encounter. Her grip was firm, solid, and accompanied with strong eye contact. I knew in those few seconds that she would have the job, and that she would be a good addition to our legal team. And I wasn’t wrong.

Within a few short years, Elizabeth was a partner. Tom contemplated, then decided on, retirement. We needed to move to new space, and so we left our comfortable old house.

Then a national pandemic interrupted the flow of our practice (as, of course, it did for everyone). But we survived — and even thrived. It turned out that a lot of people felt uncommonly mortal, and many of them had enforced downtime. We saw a lot of clients — new and old — who urgently wanted to get their affairs in order. And that’s exactly what we enjoyed doing.

Being a lawyer — then and now

So what has changed in the practice of law in my fifty years? A lot. In fact, it’s a little bit incredible to think back to what the practice was like fifty years ago.

First, there were no photocopiers. Everything we prepared was done with carbon paper. And manual typewriters. Make a mistake? Throw that bundle away and start over. Or try liquid correction fluid on the original, and a different kind of correction fluid on each of the carbon copies.

Then we rented a photocopier. It had one giant roll of paper that it cut to the proper length as it made copies. Lots of moving parts, lots of opportunities to pay repair people.

I vividly recall the IBM salesman coming to our office to show us the new IBM Selectric model after we hired a new legal assistant. He set up the typewriter, then brought out a small box, plugged it in and attached it to the typewriter. The demonstration was automated — the typewriter chugged away while he talked, demonstrating the points he was making. I asked if we could buy the little box instead; he said it had no use in an actual office, it was just a demonstration device. He was so wrong.

Computers change everything

The IBM PC was released in 1981, just as I was headed to the Public Fiduciary’s office. We couldn’t afford one there (they cost over $1500 in 1981 money), but we did manage to finagle a machine that ran CP/M (rather than MSDOS). I personally bought a copy of WordStar, the powerhouse word processing software that was going to revolutionize the business world. Does anyone else remember “dot commands?”

Even younger readers will be able to fill in much of the information from there. CD-ROM devices, networking computers across the office, the internet and browsers all rushed in over the next decade or so. WordPerfect quickly eclipsed WordStar, and then fell to rival Word. Ironically, the first time I saw Word in operation it was a version for the Apple computer environment. Microsoft seemed to have conceded defeat to WordPerfect. That changed.

And now, of course, Artificial Intelligence. So far it has been a net gain for lawyers — though there are plenty of newspaper articles, handwringing pieces in legal journals, and anecdotes about the death of the practice of law (and, for that matter, civilization). But fifty years on, the ability to do rapid, thorough and useful research on every topic that arises is an astonishing development to this old-time practitioner.

Changes in the law

Has the law changed a lot in those same fifty years? The answer is not so obvious. It is a clear “yes and no.”

Just as Tom (and Ed) and I started practicing law, Arizona had adopted the then-new (and radical) Uniform Probate Code. It fundamentally changed the way probate — and guardianship and conservatorship — would be practiced in Arizona. But not all of the practitioners got the message. So for our first decade (or so) of practice, we argued incessantly with (mostly) older lawyers about “the new Probate Code.” I still think of it as the new Probate Code even though it’s been around longer than my fifty years of practice.

Federal tax law changed dramatically in 1981. Estate plans all had to be reconsidered. And then the rules changed again in 1987. Then not much changed for a decade — until the estate tax became practically an anachronism by the early 2000s. That meant a bunch of estate plan rewrites. So much for getting lawyers out of the business of charging for tax planning.

One big change in practice was embodied in the Uniform Trust Code. Arizona adopted it in 2003. Then we repealed it. Then we re-adopted it in 2008. It unsettled most of what Tom and I had learned in law school about irrevocable trusts, and opened many new opportunities for planning.

Meanwhile, it had been relatively easy to explain long-term care planning to individuals concerned about nursing home (and nursing care) costs. Then it became difficult. Then it became nigh-on impossible. Explaining, that is — there were still steps that could be taken, but they were fraught with problems and dangers. An area that hadn’t even existed when we started practicing fifty years ago had burgeoned, gotten complicated and almost withered while I was still practicing.

What hasn’t changed

At Fleming & Curti, PLC, we still believe strongly in a number of principles, and I anticipate that they will outlast me. Chief among those: the client is the center of our work. Those clients come to us in times of crisis. They’re worried about a spouse, or overwhelmed by the loss of a loved one. The legal system looks like a closed, black box. And they need help.

Clients are entitled to clear explanations of their options. That means plain-language, written descriptions. It also means annotations and separate explainers. This, by the way, is proving to be a very useful opportunity for Artificial Intelligence. We probably won’t let AI draft documents anytime soon, but it can help make the documents more understandable.

We should be both reasonable and transparent in our fees. Before we start work, clients should know what the cost will be — or at least what it is likely to be, and how it will be determined.

Some clients (but not all — or even most) need help locating suitable fiduciaries. We can fill a need there, but we must be clear with clients about how we will act, what we will cost and what alternatives they have.

And it all ties back to what Ed Vincent told me fifty years ago. We’re about — and we should be about — helping clients.

Fifty years later

So here I am, fifty years on. I’ll miss my 50-year reunion later this month because I’m going to (and speaking at) a seminar in Florida on special needs trusts. But maybe it’s time for me to slow down.

Oh, wait — I’ve already slowed down. I’m working part time now, and expect to retire at the end of this year. But that’s a different story.