The PDF in which this article appears can be dowloaded here: Bifocal Vol. 43 Issue 1.
. The Administrator of the Illinois Attorney Registration and Disciplinary Commission (ARDC), Jerome Larkin, collected statistics showing that, in Illinois, almost 30% of active lawyers are over the age of 60. Even more surprising, in Illinois, 80% of the active lawyers 85 or older practice law. To the public, older attorneys may not seem like a cause for concern as some of the most famous attorneys are eligible for Medicare. In fact, five of the nine justices on the U.S. Supreme Court are over age 65, and in popular culture Andy Griffith had just turned 60 before starting his nine-year run as TV’s famous trial lawyer, Ben Matlock. Additionally, for his first impeachment trial, four of President Trump’s seven lawyers were age 65 or older. With age comes experience, and in law, that experience justifies a higher hourly rate. Besides, if the lawyer’s mind is still sharp, age is just a number.
But what happens when the mind is no longer sharp? What happens when a partner at a firm, a lawyer with over forty years of experience, starts to cognitively decline? How should the firm react? What should be said to the clients? These are all questions that unfortunately will only be increasingly asked in years to come.Following this correlation, approximately 20,000, or 1.5% of all lawyers in the U.S. could have Alzheimer’s. As the population and workforce ages, Alzheimer’s is becoming a major issue many Americans must face. However, as seen by statistics, older lawyers are sticking around. The combination of older active lawyers and increases in the likelihood of age-related cognitive impairments lead Mr. Larkin to believe a “tsunami” of disciplinary complaints regarding lawyers with cognitive decline is on the horizon.
Recognize the Signs of Cognitive Decline
The most effective way to prevent the coming tsunami is for attorneys and clients to recognize the signs of cognitive impairments and understand the best ways to help. As anyone ages, there is an expected amount of cognitive decline which should not be a cause for concern. However, there are cognitive issues, categorized as symptoms of Mild Cognitive Impairment, that firms and clients should look for that may be a precursor for major cognitive decline, like dementia, including:
- Increasing memory loss, including forgetting appointments, social engagements and losing one’s train of thought in the middle of a conversation;
- Increasingly appearing overwhelmed by making decisions, making plans, or understanding instructions;
- Increasingly becoming more impulsive, showing poor judgement, and having trouble moving around familiar places.
Dr. Diana Uchiyama is a lawyer and a Doctor of Clinical Psychology and is currently the executive director of the Illinois Lawyers’ Assistance Program (LAP). Dr. Uchiyama advocates for following what she calls the MAP approach when trying to determine if an older lawyer is cognitively impaired. Family, friends, colleagues, and clients should look for the following:
- Mood Changes
- Appearance Changes
- Productivity Changes.
However, MAP is only the starting point. Often, symptoms of depression and mental illness, as well as thyroid and other physical issues, may reflect cognitive decline. Substance abuse can also be mistaken for cognitive decline, and all these issues require different treatments and support.
Dr. Uchiyama points out that lawyers have high verbal skills and education, so they can hide their cognitive decline by their ability to speak intelligently. Therefore, when Dr. Uchiyama is evaluating a lawyer for cognitive decline, she challenges a lawyer to get to the heart of the issue. Dr. Uchiyama suggests when determining whether a lawyer has a cognitive impairment others should look for signs like:
- Trouble thinking abstractly
- Lack of ability to manipulate information
- Lack of ability to transfer and retain information
- Dodging questions about remembering specific dates or events and instead telling tangentially related stories.
Dr. Uchiyama notes that even if a person has mood changes, is wearing winter clothes in the summer, becomes unproductive, and cannot handle information well, cognitive decline is not a foregone conclusion. All physical and mental health causes must be ruled out first. If the cognitive issues are caused by thyroid problems or depression, often the right treatments can lead to the lawyer regaining their faculties. It is only when there are no other explanations that cognitive decline becomes the cause of mental impairment.
What Can Firms Do?
Mild Cognitive Impairment, and then dementia, can cause attorneys to miss filing deadlines, miss client calls or meetings, act oddly in court, make poor or even incoherent arguments, and even treat clients and colleagues poorly. A cognitively impaired attorney missing hearings and statutes of limitations can be catastrophic for their clients. This can lead to irreparable harm in the attorney-client relationship not just for the lawyer themselves, but for their firm as well.
The ABA published Formal Opinion 03-429 discussing the cognitive impairment of attorneys. If the cognitive impairment of a lawyer results in ethics violations, the firm may have an obligation to report the violation to the appropriate professional authority.However, a lawyer in cognitive decline may not recognize, or be in denial of, their cognitive decline and may not remove themselves from representation. Therefore, firms should have policies in place to ensure a lawyer with material mental impairments do not represent clients.
Mr. Larkin believes an overall atmosphere of openness in firms can help older lawyers come forward and alert others of their concerns about themselves. Mr. Larkin recognized that often new attorneys will attempt to hide their mistakes, but older lawyers in decline are prone to the same behavior, especially in overly competitive and cutthroat environments. A firm culture that encourages attorneys coming forward with their struggles can help firms and lawyers identify when roles need to change and when retirement may become medical necessity.
Christine Anderson, the Director of Probation and Lawyer Deferral Services, Intake Manager and Senior Litigation Counsel, for the Illinois Attorney Registration and Disciplinary Commission (ARDC), has seen two strategies firms have taken to mitigate cognitive decline becoming an issue for older attorneys. First, many large firms have a mandatory retirement age which forces attorneys at ages around 63-68 to retire from the firm. However, if that lawyer wants to continue practicing, a smaller firm will generally bring them on, or they may start their own firm. In addition, early retirement can lead to increased cognitive decline due to the lack of brain activity from lack of work. Second, some law firms are requiring older attorneys to undergo cognitive evaluations once they reach a certain age. The evaluations generally become annual after the first one.
Dr. Uchiyama worries law firms are not active enough. She believes that most firms protect older lawyers by insulating them so they do not make serious errors. For example, an older lawyer may no longer oversee their calendar or other attorneys screen the aging attorney’s work product to keep an eye on the aging attorney. This ultimately extends the problem and can help the older attorney convince themselves that they are fine, leading them to not seek the help they truly need. Furthermore, many attorneys, especially at small or solo firms, cannot afford to retire and their family depends on them. Therefore, even if the family knows something is wrong, they will not say or do anything to help because they depend on the lawyer’s income.
Dr. Uchiyama is aware of several studies that strongly correlate excessive drinking with cognitive decline. Also, the Baby Boomers are the only generation in history where their substance use does not decline with older age – it has actually increased, perhaps due to the legalization of marijuana in many states. Baby Boomers are working later in life and drinking more, almost as much as they did in their youth. Finally, with age comes physical pain and substances like marijuana and opioids have negative effects on cognitive health, though they may provide temporary relief from pain.
The Illinois Approach
In Illinois, there are programs that clients and firms can contact if they are concerned about the cognitive health of an attorney, without causing disciplinary action. Anyone can contact the ARDC to express concern about an attorney. The ARDC has a budget for psychological exams and recently has implemented programs to protect clients without bringing disciplinary actions on the aging lawyer. One program is the intermediary program. If an aging lawyer is resistant to accepting the state of their cognitive decline, an intermediary will find the lawyer, or their family, and have a conversation about their mental health. Intermediaries are selected by the ARDC. To date, the handful of retired attorneys selected have been prominent in the field of ethics. Through this intervention like process, Mr. Larkin stated that intermediaries have been quite successful in helping lawyers in significant cognitive decline avoid formal complaints and disciplinary action. The ARDC also has a diversion program where the ARDC monitors an attorney and requires additional continued education for the attorney. In addition, through diversion, the Illinois Supreme Court can place conditions on an attorney’s practice.
Another avenue for the ARDC is to place the attorney on “permanent retirement” status. After a finding of significant cognitive impairment, “permanent retirement” prevents the lawyer from practicing without issuing any formal disciplinary action, allowing the experienced lawyer to finish their practice with dignity. The aging attorney must agree to permanent retirement status and it is an irreversible status. Finally, the ARDC refers many attorneys with cognitive impairments to the Illinois Lawyers’ Assistance Program. LAP is non-profit, non-disciplinary organization that assists lawyers with mental health issues. LAP is also confidential. The non-disciplinary and confidential nature of LAP is likely why they have seen a significant increase in lawyers and judges seeking counselling on issues relating to cognitive decline. Through LAP, aging lawyers can receive counselling to help them understand their limitations and when to retire before they become a liability to themselves and their clients. The Illinois Supreme Court has recently doubled the budget for LAP.
What Happens When it is too Late?
Unfortunately, not all lawyers are proactive with their mental health and do not retire before their impairments lead to ethical violations.The important consideration in these cases is the significance of the impairment. A short-term impairment that has been rectified does not require a report to a professional authority. In addition, if the firm decides to adjust to eliminate risks of future impairment related ethics violations, then there may be no need to report the impaired attorney. For example, an attorney in decline may be removed from urgent matters if keeping deadlines has become an issue or oral arguments if they develop trouble thinking quickly. However, the attorney may still be able to perform transactional work and perform quality legal research. If this is the case, a firm can transition the attorney to those roles to eliminate unintentional ethics violations without forcing retirement.
If this is the case and the firm removes the attorney, or the attorney resigns, the firm still has obligations to the clients.
The number of active elder attorneys is increasing, but unfortunately so is the number of older lawyers suffering from cognitive impairments. Left unchecked, this combination can lead to a flood of unintentional ethical violations leading to formal complaints. To best prevent such a flood, clients and attorneys need to recognize the signs of cognitive decline. Recognizing the signs and having open conversations about cognitive health can allow older attorneys to establish safeguards that can prevent poor endings to great careers, while also protecting the clients from poor representation. Second, state courts and bar associations need to provide the mechanisms and resources such as Lawyers Assistance Programs to encourage the identification and reporting of cognitive decline or mental health issues, so that remedial interventions take place before serious harm occurs. Finally, there are steps an older attorney can take to increase the longevity of their cognitive health. The brain is an organ that requires exercise and care. Decreasing intoxicant use, while eating healthy, exercising, doing puzzles, and challenging the brain can all help to ward off cognitive decline.