YourABA: June 2013
YourABA October 2013 Masthead

How to recognize and manage cognitive impairment in aging lawyers

As baby boomers approach retirement age, the legal profession must deal with the increasing number of cases involving cognitive impairment in aging lawyers.

"Deciding what to do when you notice that a lawyer or a judge is showing signs of cognitive decline or impairment is always difficult and usually complicated," said Terry Harrell, executive director of the Indiana Judges and Lawyers Assistance Program. "Generally, the lawyers surrounding the person know they have a responsibility to do something, but they are very reluctant to act."

Experts from lawyer assistance programs, the mental health community, a lawyer discipline agency and a professional liability insurance company analyzed the effects of cognitive impairment from multiple perspectives during an American Bar Association panel. The panel of experts provided practical advice on how to recognize cognitive impairment, ways to respond to the situation, the responsibilities of aging lawyers, their colleagues and their law firms, and the resources available to aid in decision-making and finding assistance.

As the lawyer population ages, lawyers should be on the lookout for signs of cognitive impairment, such as poor decision-making, loss of skill, office staff concerns, dissatisfied clients and mood swings.

"Illness is not the same as impairment," said Doris C. Gundersen, medical director at the Colorado Physician Health Program. "Many of us have gone to work ill but did not put our clients in danger. Impairment is really when someone is unable to practice with reasonable skill."

Because of the recent economic recession, baby boomer lawyers are facing more financial pressures, and many will likely need to work beyond the traditional retirement age, she said. Gundersen recommended screening for cognitive impairment around ages 70 to 75, but she noted that while many tests are available, there is no universally accepted screen to measure cognitive functioning and that the tests tend to have low accuracy in revealing mild impairment. She also stressed the importance of ruling out reversible causes of impairment, such as undiagnosed sleep disorders or psychiatric illness.

Todd Scott, vice president of risk management at Minnesota Lawyers Mutual Insurance Co., said some people might hesitate to report a problem because they are unsure whether the cause is actually cognitive impairment.

"There is sort of a tendency among legal colleagues to cover for the people they work with," he said. "It’s the impulse of staff to oftentimes cover for the attorney who is suffering, but it’s not a good impulse, and especially when things go wrong in the firm, things can get way off track in a hurry."

Gundersen said approaching a lawyer who may have cognitive problems can be hard because of the power differential and the firm’s loyalty to that senior lawyer.

Harrell agreed, describing these cases as having "an extra layer of difficulty since they are often very emotional."

"It is very difficult to tell a well-respected senior lawyer that you think he or she needs to get an assessment or perhaps needs to stop practicing all together," she added.

The panelists suggested turning to local lawyers assistance programs to help aging attorneys deal with cognitive impairment issues.

"The assistance programs are very good about identifying health care professionals in a community that have the expertise to evaluate attorneys or other professionals," Gundersen said.

Scott Mote, executive director of the Ohio Lawyers Assistance Program, warned against ignoring the problem instead of stepping in early on.

"What we are trying to do is help this lawyer, who has had a wonderful career and been a wonderful part of the profession, part of the community, not end up with the last days of their career on the front page of a local newspaper or as a respondent in a disciplinary matter or the defendant in a malpractice case," he said.

Gundersen said aging lawyers who are concerned about cognitive impairment should avoid solo practice, work fewer hours, increase staff assistance and take advantage of monitoring through lawyers assistance programs. She said aging lawyers should get objective feedback on their condition and on when they should restrict or stop their practice.

An audio CD of this program, "Grey Matters: Perspectives on Aging Lawyers and Cognitive Impairment," can be purchased here. This program is sponsored by Commission on Lawyer Assistance ProgramsTort Trial and Insurance Practice SectionCenter for Professional ResponsibilityCommission on Law and AgingCommission on Disability RightsSolo, Small Firm and General Practice DivisionStanding Committee on ProfessionalismSenior Lawyers DivisionStanding Committee on Lawyers' Professional Liability and Center for Professional Development.

ABA Model Rules of Professional Conduct and cognitive impairment

Tracy L. Kepler, senior counsel at the Illinois Attorney Registration and Disciplinary Commission, pointed out several rules that should be considered when dealing with cases of cognitive impairment.

Rule 1.1 — Competence
Cognitive impairment can cause aging lawyers to struggle with this most basic rule: providing competent representation to a client.

Rules 1.3 and 1.4 — Diligence and Communication
Forgetfulness stemming from cognitive impairment can lead to missed deadlines and lack of follow through in communicating with clients.

Rule 1.6 — Confidentiality
Aging lawyers may unintentionally disclose confidential information by simply not being as careful.

Rule 1.16 — Declining or Terminating Representation
Attorneys must withdraw if a physical or mental condition is impeding their ability to serve clients.

Rule 5.1 — Responsibilities of Partners, Managers or Supervisory Lawyers
Partners or supervisors must make reasonable efforts to ensure that other lawyers conform to the Rules of Professional Conduct and, in some cases, can be held responsible for another lawyer’s violation of the rules.

Rule 8.3 — Reporting Professional Misconduct
Lawyers are required to inform the appropriate professional authority if they know that another lawyer has committed a violation of the Rules of Professional Conduct.


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