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Vol. 38 No.3

North Carolina Bar Association offers TLC for lawyers with cognitive impairment

by Clifton Barnes

A man gets a speeding ticket and soon afterwards sees a prominent attorney he knows walking down the street. He asks this pillar of the community what he should do. The attorney tells the man he’ll take care of it, sticks the ticket in his pocket but soon forgets about it.

The attorney ends up being disciplined by the state bar, and his long career comes to an end in an ignominious way.

Most bar leaders know someone who has lost a step, so to speak, or someone whose cognitive abilities have faltered even at a younger age.

The North Carolina Bar Association, a statewide voluntary bar with 17,500 members, has started a program to minimize the risk that lawyers will end their careers on a bad note.

A task force looking into the issue has morphed into a standing Transitioning Lawyers Commission that looks to assist lawyers who need to retire but are resistant, lawyers who want to retire but are unsure of the proper process, and caregivers within the legal community.

Other state and local bars are also looking into these issues, but the N.C. Bar Association’s TLC program has produced a “boots on the ground” approach where lawyers are being trained to intervene.

The TLC will use a little TLC as taught by the staff of HRC Behavioral Health and Psychiatry, a psychological, psychiatric, social work, and therapy practice that has a pre-existing relationship with the N.C. Bar Association through its BarCARES program. BarCARES is a confidential, short-term intervention program providing cost-free, confidential counseling to members.

Immunity key to open conversations

The TLC and HRC Behavioral together developed a model for an intervention program. But before moving forward, the group asked for and got immunity from the North Carolina State Bar, the mandatory licensing bar with more than 20,000 members.

“They certainly do not give it freely, and it took a good debate,” says Nan Hannah, a Raleigh attorney who chairs the TLC. “The only thing they asked of us was that our interveners cannot be the trustee that closes down the practice—and that’s fine because we don’t want them to be.”

Those putting the program together agree that it wouldn’t work without immunity from telling the state bar what they have learned.

“We have to have the open conversations when we sit down with the person who has a cognitive impairment,” Hannah says. “They have got to be able to say whatever [they need to], and their spouse or partners have to be free to say what they are seeing. Some of those things may be malpractice risks or governance risks.”

How the program works

Hannah is uniquely qualified, as she has dealt with one lawyer going through cognitive issues and has experience dealing with the issue on a personal level. Her father, who was an attorney, had frontal temporal dementia prior to his death, and her mother—who still believes her husband is alive—has Alzheimer’s.

For those with less experience, there have been two training sessions so far; the first interventions are taking place now.

While the TLC has a list of interventions to start, in the future the process will begin with a confidential but not anonymous phone call to an 800 number. A trained team leader— someone geographically close to the subject who, as Hannah puts it, has “street cred”—will talk to the person who made the call and to family members and/or law partners. The intervener will gather the information and take it to HRC Behavioral, where a counselor will evaluate the information and discuss the best strategy to move forward.

If intervention is deemed necessary, the team leader and another person close to the subject will approach the attorney for a frank conversation. “It will be a warm blanket approach,” Hannah notes. “They’ll tell them, ‘You’re missing a step, and here are some things people are seeing.’”

Unless the person is resistant, a memory test will be conducted. The subject could also choose to go talk with someone at HRC and do some testing there, which could lead to a referral for more thorough neuropsychological testing, which is usually covered by insurance.

A difficult, but important topic

“Everybody is different,” Hannah says. “It’s going to be ticklish. At some point, we’re going to get the guy who tells us to jump off the cliff. We will do what we do, and then we’re gone. Eventually, somebody not protected by immunity is going to report them to the state bar.”

Brad Schulz, a small-firm lawyer in Beaufort, N.C., has been at the forefront of planning the intervention portion of TLC and says becoming well informed about the lawyer and developing a personalized plan of action prior to the first meeting is key.

“I feel confident that the team leader, after talking to the relevant people, will develop a good sense as to the problems that may be going on,” he says.

Schulz, who has conducted a couple of successful interventions at the request of judges, says the biggest challenges are educating lawyers about the concept of possible cognitive decline and getting them to actually make the hard decisions—and assisting them in the process.

“It’s important to realize that this isn’t necessarily an age-related issue,” Hannah adds, pointing to the case of U.S. Court of Appeals Judge Karen Williams, who retired in 2009 at the age of 57 due to the early onset of Alzheimer’s disease.

Moving forward

There will be continuing legal education programs, webinars, and online non-CLE videos and other information about such topics as care giving, selling a practice, becoming of counsel, and financial planning.

“Financial planning is becoming even more important. A good number of my male contemporaries have a kid in college and a kid in diapers,” Hannah says. “They are going to hit 70, and they will never have had that time when they weren’t raising a child and paying tuition.

“They are the next group we’re worried about because they are going to hit that age when most people are slowing down, but they might not be in a financial position to do it.”