On the subject of what the National Organization of Bar Counsel once called a “senior tsunami,” here’s what William A. Slease, secretary of the NOBC, said to an audience of bar association leaders and staff from across the country: “You’re listening—kind of.”
That is, following a report that came out about seven years ago from NOBC and the Association of Professional Responsibility Lawyers, many jurisdictions have at least taken the basic step of assessing the age of their lawyer population, said Slease, who is also chief disciplinary counsel on the Disciplinary Board of the Supreme Court of New Mexico.
Typically, Slease told members of the National Conference of Bar Presidents, National Association of Bar Executives, and National Conference of Bar Foundations, at the groups’ 2014 Annual Meeting in Boston, “Twenty percent or more of your lawyers are over 65.”
But demographic assessment isn’t enough, Slease said; the real question is what you do with that data—and how you determine which of those older lawyers are beginning to have age-related trouble before they face discipline.
To help attendees understand what those next steps should be, Slease was joined by Allan B. Head, executive director of the North Carolina Bar Association, and Sarah Diane McShea, a member of the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct and a founding member and past president of the APRL. The panel was moderated by Frederic S. Ury, chair of the ABA Standing Committee on Professionalism and past president of the Connecticut Bar Association and of NCBP.
Identifying impaired lawyers
Before anyone can assist a lawyer who may be impaired, he or she must first be identified—and that can be trickier than it sounds. It’s not enough to count on lawyers to self-report, Slease said, explaining that one of the hallmarks of dementia is a “lack of self-awareness” and a tendency to deny the problem. That’s why it’s important, he said, for others in the legal community to be trained to spot signs of impairment.
Often, Head noted, friends, family members, partners, and others around a particular lawyer are well aware of issues that the lawyer him- or herself might not be willing to admit. In discussing what would become the NC Bar Transitioning Lawyers Commission, he added, several judges said they knew of lawyers who were “missing a step” lately—and lawyers said the same thing about judges.
Slease believes judges are in a great position to note and speak up about a lawyer’s impairment. They often see the same lawyers “day in and day out” over several years, he explained, and can notice changes in behavior and functioning. Judges often hesitate to say anything, Slease added, because they fear lawyers will think this affects their fairness toward them. “Don’t let that be a barrier,” Slease urged—this matter is too important not to act.
Head himself went through the training to be able to identify and respond to impairment in others—in fact, he even had some testing done as a baseline measure of his own cognitive function. In conjunction with its lawyer assistance program, the NC Bar’s TLC trains members to act as “interveners” who will work alongside medical professionals to talk clearly and compassionately with lawyers about their impairment.
Part of the training involved role playing; Head found the scenarios “very scary” to contemplate—and when he actually had to be an intervener, he was “set back” by how emotionally difficult it was to tell a fellow lawyer that it was time to transition out of practice.
Along with Alzheimer’s and other illnesses that people associate with old age, it’s important to remember that a host of other conditions can cause cognitive impairment that might be temporary, Slease said. A lawyer with impairment caused by a thyroid problem or a urinary tract infection, for example, could be treated and then get back to work, he noted; it’s important to know about these conditions as well.
Proceed with care
When establishing its effort to intervene with lawyers facing cognitive impairment, Head said, there were a number of points where language needed to be carefully considered and reconsidered so as not to add unnecessary shame to an already difficult process.
When the idea first arose, he recalled, the plan was to call it “Retiring with Dignity”—but dignity is a word that’s come to be associated with decline and death, so it was thought to be needlessly harsh. Transitioning Lawyers Commission expresses that same idea but without such a trigger word, Head believes.
A lawyer can self-report that he or she needs assistance, he or she may be referred by a psychologist, or he or she may be referred by a medical professional, Head said. What happens next is called a meeting—because intervention also sounded too harsh, due to its association with drug and alcohol abuse.
It’s not just wording that must be carefully considered, Head said, but such matters as the setting of the meeting, which should be in a neutral location of some kind. Doing it at the lawyer’s office is a bad idea, he said, because seeing the interveners “parade in” can “cause a stir” among the law firm employees.
To allow for a more open and honest conversation, Head noted, the bar received lawyer assistance program designation for the intervention work done by the TLC. This means that confidentiality is in place regardless of the meeting's outcome, and even an unsuccessful meeting cannot be reported to disciplinary authorities. If the interveners succeed in persuading the lawyer that it’s time to close up shop, he or she will be connected with resources to assist with that process.
Succession planning tips
Along with financial issues and the emotional difficulty of realizing that it’s time to let go, panelists agreed that succession planning is another big obstacle that prevents lawyers from retiring. Why?
It’s the age-old “cobbler’s problem,” McShea said, referring to the old saying that the cobbler’s children have no shoes. Lawyers are well aware of the need for this type of plan, and in fact, might help clients formalize their own plans, but often find it daunting to consider what will happen to their own practice and to their clients when it’s time for them to retire.
“Lawyers, by and large, spend their lives solving problems for others,” Slease agreed, but they often fall short when it comes to dealing with their own problems. Once they decide to undertake this difficult process, he added, lawyers often find that succession planning allows them to make important decisions and takes the “pejorative” aspect out of winding down a practice.
A good succession plan is detailed, thorough, and regularly updated, McShea said; it can’t be done hurriedly and just once, and then filed away. Bar presidents should use their influence to encourage lawyers in their area to do this, and should support them during the process, she said.
One novel idea that bar associations might want to consider, McShea suggested, is offering “volunteer successors” who are carefully recruited and thoroughly trained to step in when a lawyer must leave practice—either on an emergency basis or planned in advance. If funds are available, she added, these successors could be compensated.
Succession planning is particularly difficult, the panelists said, for solo and small-firm lawyers, who may truly have no obvious choice in mind for a successor. Such a lawyer might even forget to name a successor, or might choose someone but then neglect to tell anyone, Slease noted. Often, he added, a solo or small-firm lawyer has invested their life’s work into their practice and don’t want to see it “dismantled”—which is all the more reason they should be encouraged to go through the planning process and get things down on paper. As a tool to borrow, Head pointed to a model protocol from his bar’s TLC.
For lawyers who are truly unable to let go just yet—and who are less significantly compromised—Slease and McShea suggested limited practice options in which the lawyer is allowed to continue practicing on a minimal basis, perhaps for select longtime clients, in conjunction with or under supervision by a lawyer who is not impaired.
The risk of inaction
As difficult as it is for lawyers to face the need to retire—and for bar associations to broach the subject—this pales in comparison with what can happen if an impaired lawyer is allowed to remain in practice.
Whatever the lawyer’s financial or emotional reasons to stay, McShea and Head said, it simply isn’t fair to clients or to the public. Looking to another profession, McShea asked, “Would an incompetent doctor be allowed to continue?”
The options become much harsher, McShea noted, once an impaired lawyer actually commits an offense. If impairment is coupled with conduct, she said, this gives the disciplinary body much less room to find a solution that doesn’t involve the lawyer’s career ending in discipline.
If lawyers and their bar associations have not yet addressed cognitive impairment, transition, and succession planning, Head stressed, they must do it now. The first wave of the huge baby boom generation is now approaching 70, which, he said, means “Time is not on our side.”
Note: This article has been edited to correct the information pertaining to confidentialiity and the North Carolina Bar Association's Transitioning Lawyers Commission.