Cognitive impairment often refers to a dysfunction in a person’s ability to think clearly, remember, and make sense of information. In its earliest form, it can be sneaky. The subtle signs can be masked. Memory begins to fail a lot and the person tries to cover it up. Eventually, however, things go wrong. A person with cognitive impairment typically gets worse over time and others begin to notice.
For example, a lawyer in his late 70s who had been a leader in my community for decades had begun to forget where he was in a sentence while speaking. He could not recall that he had already asked a question. He repeated himself a lot. He began to fumble in court. And others took notice. Whispers in the hallway followed him.
I personally witnessed an argument he had with his wife in front of a store. She begged him not to drive. He became loud and belligerent, and made a scene, forcing the keys out of her hands. What I saw confirmed the gossip I’d heard: The guy was losing it. He probably had cognitive impairment. Normally, he would never have behaved the way I saw him behave. He wasn’t making sense.
What does this mean? It is perhaps a sign that this lawyer was showing signs of dementia. Dementia is a broad term that refers to the kind of cognitive impairment caused by changes in the brain, often permanent and progressive. It’s a term frequently used interchangeably with Alzheimer’s disease, a problem affecting more than 5 million Americans.
Alzheimer’s disease is a brain disorder that damages and eventually destroys brain cells, leading to loss of memory, thinking, and other brain functions. Alzheimer’s is not a part of normal aging but results from a complex pattern of abnormal changes. There is no effective treatment, and there is no cure as yet. Chances of developing this disease are approximately 50 percent by the time a person reaches age 85, according to the Alzheimer’s Association website.
I don’t know the aforementioned lawyer colleague’s diagnosis. I do know that a well-reputed, successful lawyer might have a very hard time facing the reality of his own cognitive decline. Those who begin to develop Alzheimer’s disease or another form of dementia are often secretly terrified and try to compensate with all they’ve got. But memory does fail, and there is eventually no compensating for the damage the brain suffers with dementia.
The legal profession provides good support through Lawyer Assistance Programs for those with substance abuse problems and mental illness. To my knowledge, we have no mechanisms in place for reporting, assessing, or requiring testing of our own when lawyers unmistakably exhibit signs of cognitive impairment. We ignore them and hope they don’t get any more cases. We feel uncomfortable. We pretend everything is fine. We do little or nothing to confront the issue.
Can we confront the issue of a cognitively impaired colleague who is still practicing law? Do we have the right? Do we have a duty to do anything? Some would likely say that “it’s their problem.” I think otherwise, given my nursing background.
Unlike substance abuse, from which one can be rehabilitated, and mental illness, which can be effectively treated in many cases with medication and therapy, those with cognitive decline can’t be expected to get better. The person who has it has no choices about having it. This is a growing problem because of our increasing longevity. It is also a problem because professionals like lawyers sometimes can’t let go of being lawyers. It’s too much a part of their identity and their purpose in life. They may know that they are having serious memory loss but fear retiring. My idea of what we need to do may sound radical to some. I believe that we need to develop a reporting system in our courts, state bars, and local bar associations to require testing of those who are reported by at least two other lawyers or a judge to be suspected of suffering from cognitive impairment, when their impairment is public and appears to be adversely affecting clients.
We’ve probably all seen a totally incompetent lawyer in our courts at one time or another. We’ve shuddered for the sake of the client getting such poor representation. (I’m not referring to lawyers who come to court intoxicated. We see this too, but it is different.) When that incompetent counsel can’t remember what the judge said or forgets the question or reasoning, and this is witnessed repeatedly on several cases or appearances, I believe we need to act.
In my state of California, an impaired driver can be anonymously reported to the Department of Motor Vehicles, which will then issue a request for retesting. The allegedly impaired driver must then take a driving test. It’s set up to help get the keys out of the hands of those with dementia. If one is really cognitively impaired, one won’t pass the driving test.
In the case of apparent cognitive impairment, there is also a way to test. It is neurocognitive testing, designed to measure certain kinds of brain function. There is a test battery nationally standardized for use by psychologists, who can screen for dementia, memory difficulty, ability to reason, and ability to do abstract and sequential thinking.
Testing is accompanied by a psychological assessment interview on a different day. It can help with diagnosis, but most important, it gives us the most objective way possible to measure cognitive impairment in a person compared with others in the same age group. These same kinds of test batteries are also used to measure brain function in those who have suffered traumatic brain injury.
As I see it, lawyers whose testing places them in the “seriously impaired” category in more than one critical functional area, such as reasoning, abstract thinking, or memory, should not be allowed to continue to represent clients. Lawyering is a tough job. We need adequate brain function to do it safely.
Because we’re living longer, we can expect to see more people with dementia. Some of them will be us. The likelihood of developing Alzheimer’s doubles about every five years after age 65.
Perhaps it’s time to embrace the idea that standing idly by and hoping a cognitively impaired lawyer won’t seriously damage a client’s case is not the best we can do.