In April 2024, Morgan Smith broke his back. The now-55-year-old Minneapolis lawyer was lifting a stack of wood and tools into his truck when the bones in his vertebrae "just snapped."
A few days later, Smith learned he had Stage 4 prostate cancer and, as he puts it, the tumors had been "chewing away" at his spine and ribs, making them fragile and easily broken.
Since then, he's had surgery, radiation, medication and an allergic reaction to the medication that landed him in the hospital for nine days. Smith, who has a domestic partner and an adult son, has since made his estate plans in preparation for his death. But he's determined to stick with his clients as long as he can and help them with their legal issues–from custody arrangements to commercial litigation.
"I like my clients, and I like my work, and I want to keep helping them for as long as I can," says Smith, who co-founded the law firm Smith & Raver in 2004.
He works part time now and has other lawyers in line to fill in when he's feeling too sick to represent his clients. Smith has told his clients about his diagnosis and says "it's their choice whether I continue as their practitioner."
Lawyers who discover they have a serious or terminal illness face a slew of emotions, along with a list of decisions they must make, including whether and under what circumstances to continue working. For some, health insurance and a paycheck are powerful motivators for staying in their jobs; but lawyers with terminal diagnoses also cite continued purpose, concern for their clients and a fondness for their colleagues.
Following the rules
As much as lawyers with terminal illnesses may want to continue working, they should be guided by the rules of professional conduct and malpractice liability considerations, says Eric Y. Drogin, chair of the ABA Senior Lawyers Division Center for Excellence in Elder Law and Dementia.
"There are practical concerns that come with illness, such as physical pain, distraction and any stress associated with it," says Drogin, an attorney and forensic psychologist on the faculty of Harvard Medical School. “These practical hurdles can make it difficult or impossible for lawyers to meet our professional and ethical obligations.”
The time commitment of any medical treatment is also an issue, he adds. And lawyers should be "unsparingly honest" with themselves.
"The mere presence of severe illness does not automatically prompt resignation from the practice of law, but it is a time to start assessing and reassessing our abilities," Drogin says.
Life upside down
An illness or condition is considered terminal when it cannot be cured and is likely to lead to someone's death. Along with a terminal diagnosis, some individuals receive a projected life expectancy.
A life expectancy is an estimate, however, and some individuals can live with a terminal illness for years, even decades. But as people appear to be able to live longer with terminal diseases, the costs associated with their care rise. The concern is not just that there won't be enough money for the care, but also that it will drain a family's finances, leaving a surviving spouse without money.
Lawyers facing a serious health diagnosis describe their initial feelings as overwhelming and terrifying.
"It turned my life upside down," says Anna Roppo, who was 54 when she found out in 2016 she had lung cancer that had metastasized in her chest.
Then a shareholder and litigator in the San Diego office of Duckor Metzger & Wynne, Roppo was "at the peak" of her career. Her husband had stopped working to raise their two children, so their income was dependent on her.
"I never smoked," she says. "I was shocked."
Her cancer has since spread to her brain.
Roppo recommends that people facing a serious or terminal diagnosis allow themselves the time to go through all the emotions–anger, fear, sadness–before making any larger decisions about whether they continue working, especially considering it isn't always clear what will happen next, even with a terminal illness.
In 2021, Roppo was elected managing partner, the job she still has today.
"I can't run marathons, and I can't do trials, which are basically a type of marathon when you think about it," Roppo says. “But with love and support and encouragement from my family, friends and colleagues, I keep going.”
Work gives purpose
Michelle Alves, chief of the Rhode Island Public Defender's criminal trial division, was conducting a murder trial with a colleague in June when she noticed a change in her vision. She'd already been experiencing pain behind her eyeball and decided to check in with her ophthalmologist once the trial was done.
"I told a few people that I thought I had a brain tumor," says Alves, 55. “There was some seriousness when I said that, but it was also tongue-in-cheek.”
When Alves finally visited her ophthalmologist a few days after the trial ended, the doctor sent Alves to the hospital immediately. Within two days, Alves was in her first surgery to remove a malignant brain tumor. Before she went under, however, Alves had time to call on her lawyer friends to help her set up paperwork, such as giving Andrea, her partner since 2015, durable power of attorney.
"It helps to be a lawyer and have lawyer friends," Alves says. She also made a Zoom call from the emergency room to the other attorneys and staff in her office.
"I told my work family the diagnosis and that I was going in for surgery," she says. "It's a small, tight legal community, and I didn't want them to find out not from me but through the grapevine. I didn't try to hide it from anybody."
Alves had a second surgery to remove the rest of the visible tumor, along with radiation and chemotherapy. Her head is shaved. Most of the time, she attaches adhesive patches to her scalp. The patches connect to a device that creates electric fields that can slow down or stop tumors from growing.
But the patches hurt her skin, she says, creating painful sores.
"Some of my hardest days have been when I am at home with time on my hands," Alves says. "I don't want the focus of my life to be on worrying about what happens next to me. I am still a productive member of society and want to keep doing that. I love what I do, and work gives me purpose."
Individuals with terminal illness may prefer to work, especially if they consider it meaningful, says Meghan Riordan Jarvis, a psychotherapist and grief specialist. In addition, she says, many people use "work as a way to compartmentalize life."
"They find relief thinking about deadlines and bottom lines rather than diagnosis and lifelines," Jarvis explains.
Assessing abilities
One problem with continuing to work when facing serious or terminal illness is that sometimes attorneys aren't able to assess their own capabilities, according to Drogin.
In those situations, other attorneys may find themselves forced to discuss competence with the person dealing with a severe illness. The discussions can be difficult in part because many attorneys' identities are tied up with their profession, Drogin says.
"Any conversation must be approached delicately and placed into the context of responsibility to clients so it's not perceived as some form of personal criticism," he says.
The American Bar Association Model Rules of Professional Conduct, which are often adopted by states, provide guidance for lawyers as to their obligations. Model Rule 1.1 states that a lawyer "shall provide competent representation to a client." Competent representation translates to the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
In addition, Model Rule 1.16 requires a lawyer to withdraw when "the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client." Other rules also apply. Model Rule 1.3 states that a "lawyer shall act with reasonable diligence and promptness in representing a client." And Model Rule 1.4 requires that lawyers communicate promptly with clients.
"How do we stay on top of our cases, how are we diligent, and how do we keep our clients up to date when we are distracted or prevented from acting promptly and diligently by serious or terminal illness?" Drogin says.
Karen J. Orlin is chair of the Alternative Dispute Resolution Committee of the ABA Senior Lawyers Division and a member of the Professional Responsibility Committee of the New York City Bar Association. The test, she says, is “whether another lawyer practicing in the area of concentration of, and independent of, the ill lawyer would conclude reasonably that the ill lawyer is unable to continue practicing law competently, diligently and otherwise in accordance with the duties of lawyers.”
"Ask lawyers, family members and close friends whose judgment, impartiality and honesty you trust whether they observe signs that it's time for you to wind down your law practice," Orlin adds.
According to Drogin, lawyers should always have a succession plan for their clients, but they should be especially proactive about ensuring continuity of client care if they are facing illness. In addition, steps lawyers should take include designating successor counsel, informing clients, updating lists of all current and prior matters, keeping clear progress notes and making sure others know how to access coded files.
"We have a responsibility to our clients, the profession and ourselves to make sure we are able to meet our professional obligations," Drogin adds. "We also don't want to tarnish our legacy by continuing when we are no longer able to do so."
Resources are available to help lawyers either continue to work or to wind down their practices. The ABA Commission on Lawyer Assistance Programs provides resources, including an online database. The ABA Center for Professional Responsibility also offers an extensive library of information about succession planning.
Appropriate remarks
Attorneys facing severe or terminal illness vary in the support they want and how much they want to discuss their illness.
Katharine Manning, a Washington, D.C.-based attorney who advises law firms and companies about creating empathetic work environments, says colleagues should take their cues from the individuals they are trying to help. (See "Trauma-Informed Response," page 24.)
"It's important to remember that this person's diagnosis is not about you," Manning says. "There is no one way to respond to a traumatic experience. Some may want to take time off, others to keep working or to quit entirely. Some may be devastated, others stoic or even upbeat and optimistic."
Roppo says she doesn't want to hear talk about keeping a positive outlook, or blessings in disguise, or her life's journey. She does not see her diagnosis and illness as a "journey" she is taking; rather, it is "a massive interference" with her life and lifestyle.
"I hated it from day 1," Roppo says. “I have learned to treat it and deal with it, and I try not to pay attention to the noise, like social media posts about inner peace.”
Other attorneys want encouragement and an open dialogue.
Peter Daniels, an attorney working as a complex claims director in Chicago, was diagnosed in January 2024 with bladder cancer.
He started with chemotherapy, and he was given the flexibility to work from home. Daniels then took sick leave and his vacation time before taking short-term disability while he had surgery to remove his bladder and prostate. As of mid-October 2024, he was back in the office with a urostomy pouch to collect his urine.
Daniels says he appreciates it when his employer takes his needs into consideration and is open to requesting changes, such as more breaks during long meetings so he can empty his urostomy pouch.
"I'm talking about it all," says Daniels, 55. "It's a major thing that happened to me, and I want to talk about something so profound in my life. My wife said, 'Oh, you're talking about how you pee now,' and yes, I guess I am."
Daniels says colleagues have been supportive throughout the process. He was surprised at how much gifts, cards and letters lifted him up and gave him energy.
Manning suggests asking open-ended questions and, when responding, avoiding denials or distractions.
Helpful responses, she says, go along the lines of "That sounds hard" and "Thanks for letting me know," versus "I'm sure it's going to be fine."
"More important than the actual words you use, though, is your willingness to talk with the person at all," Manning says. "One of the hardest things about a traumatic experience is that so many people are uncomfortable being around you–because they don't know what to say–and avoid you."
Smith urges colleagues to ask him questions about how he's doing and whether there is some way to help.
"We are all going to die," Smith says. “I'm just going to die a little sooner, but we can talk about it. Don't be afraid to talk about it.”