By Holly Barker, Legal Reporter
Additions by DeadlyClear Research and Editorial Staff
We don’t expect to have to determine if our lawyers are in cognitive decline when we are looking for representation. However, in many states the bar associations lag behind the need to have or require annual health certificates, especially after age 60.
This article explains that in an older demographic, dementia and Alzheimer’s rates increase accordingly – even in the legal profession. While we all want the attorneys with the most experience, the best and the brightest sometimes fail at a slow and undetectable rate.
- More and more lawyers practicing past 65 years old
- Colleagues struggle to intervene in face of dementia
Robert Fritzshall had to be pushing 80, Bethany McLean thought, so she was a little surprised to hear him talk about expanding his law practice.
His office was a bit dusty and cluttered with papers. There were files on the floor. She was concerned that he didn’t see the need to carry malpractice insurance. But she doesn’t remember anything being a red flag.
“He was charismatic, enthusiastic,” she said. “A little eccentric.”
Besides, she needed the job.
To listen to Holly Barker’s article:
The global financial crisis hadn’t eased up. Despite graduating near the top of her class and serving on the law review, she’d been biding her time at a Chicago-area WhirlyBall, booking children’s birthday parties. And he needed some help. Fritzshall & Associates comprised only Fritzshall, a legal intern, and his legal secretary, after the previous associate departed suddenly.
McLean was thrilled when he extended her an offer, even if it was part time. When he agreed to get malpractice insurance, she accepted.
It looked like her break.
But within weeks, McLean would realize that Fritzshall was no longer capable of managing his practice. His cases were in disarray. Expanding was a fantasy. She recognized the signs of dementia from her grandmother’s decline.
The experience would be the most harrowing and painful of her career. But it’s one that’s becoming a growing challenge confronting a profession in which many are working into their 70s and 80s.
Over the last ten years, the number of lawyers practicing over the age of 65 has increased more than 50%. In 2020, roughly 14% of American lawyers were over 65, compared to 7% of workers generally. Meanwhile, more than one in nine people over 65 are diagnosed with Alzheimer’s, the most common type of dementia. The risk increases dramatically with age.
Recent, comprehensive data on how often disciplinary bodies and lawyer assistance programs confront the issue is non-existent, and there’s no way of knowing how often colleagues intervene without assistance from a professional organization.
Lawyers who are relatively high functioning in early stages of dementia are often in denial about the need to step down, said Alex Yufik, a forensic psychologist who has worked on such cases. They’re adept at hiding it, tapping their intellectual reservoirs to redirect conversations when they’re confused or unable to answer questions, he said.
Lawyers and other professionals often develop “routines, practices, conversational and social skills over many years, which are reinforced and rehearsed over a career to the point where they can function almost automatically,” said Kendra Basner, a partner at O’Rielly & Roche LLP who counsels clients on legal ethics.
Colleagues are generally ill-equipped to distinguish between signs of of normal aging and something more. And the decision to intervene can be a heartbreaking and even risky one, especially if the aging lawyer is a friend, mentor, boss, or someone powerful in the profession. READ MORE
Many times impaired individuals will try to self-medicate. Office staff, paralegals, colleagues may see an uptake in the aging lawyer’s use of alcohol and/or pot. Marijuana gives a false sense of brain control that the user so desperately needs to feel. It’s hard to spot at first, but over a short period of time, the staff will experience other signs.
Outbursts and arguments become more frequent, forgetting the client’s name several times in a meeting, standing before the court and not remembering the issue – or even worse the defense. Paralegals and JDs pick up the slack, research and write the briefs – but only so much can be retained by the attorney as the disease grows.
In one such criminal case, the paralegal wrote a stunning, award-winning brief, the aging attorney signed his name and submitted it to the court as if he had at least read it. However, the attorney made his opening statement at trial and contradicted the entire brief. In seconds flat, the attorney incriminated the defendant in a false statement to the court and jury. Later, when asked about the brief, the attorney could not recall one had even been filed.
Getting involved in a case of substance abuse or mental health problems can mean saving someone’s career. In the case of progressive dementia, intervening almost always means ending one.
“Even when the issue is right in front of their faces, many find excuses to avoid having the uncomfortable conversations and making the hard decisions,” Basner said.
Tish Vincent, chair of the American Bar Association’s Commission on Lawyer Assistance Programs, said it’s partly a cultural issue of lawyers tending to think they’re invincible. Lawyers “need to stop encouraging denial,” said Vincent, who is both an attorney and a clinical social worker.
Our Aging Lawyers and Judges
Unfortunately, it’s not just the attorneys. Increasingly, judges are staying on the bench into extreme old age. About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. The same article reports that the number of octogenarians and nonagenarians on the federal bench had doubled in the prior 20 years and eleven federal judges over the age of 90 were hearing cases. Judge Wesley Brown, appointed by President John F. Kennedy, heard cases up until just before his death, at age 104.
The demographics of the federal bench have no counterpart in the state courts. In state courts, judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages. About 33 states and the District of Columbia have a mandatory retirement age and most set it between 70 and 75 years of age. In 2009, the Illinois Supreme Court struck down the Illinois statute providing for a mandatory retirement age of 75 as unconstitutional.
Former U.S. Supreme Court Justice Sandra Day O’Connor greets reporters after meeting with the Chicago Tribune Editorial Board. (John J. Kim, Chicago Tribune) The first woman on the Supreme Court, says she has the beginning stages of dementia and “probably Alzheimer’s disease.”
Like the rest of the population, judges and lawyers are at risk for memory loss and cognitive impairments as they age. The symptoms of Alzheimer’s, an irreversible brain disorder that slowly destroys memory and thinking skills, usually appear in the mid-60s. According to the Alzheimer’s Association, about 13 percent of Americans over 65 have Alzheimer’s and nearly half of those 85 and older develop it or suffer from dementia. However, there is evidence that high-functioning professionals, such as lawyers, often mask a decline in professional competence longer than other professionals.
Ethical Implications of Cognitive Impairment
A lawyer who is cognitively impaired has an ethical duty to decline or withdraw from representing a client. Rule of Professional Conduct 1.16(a)(2) states that a lawyer shall not represent a client if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”
The problem is, the lawyer may not be aware of declining cognitive function in real time. In all the years I worked at the Attorney Registration and Disciplinary Commission, I never heard of a lawyer being prosecuted under this section. I checked with a former colleague at the ARDC who also never heard of a lawyer being prosecuted for failure to withdraw from representation due to mental condition. READ MORE
A more likely scenario involving an attorney who may have cognitive deficits is things may start slipping through the cracks, resulting in violations of other ethical rules. For example, disciplinary counsel may receive complaints about a lawyer missing deadlines or failing to return telephone calls, perhaps in violation of the Rules of Professional Conduct involving diligence (1.3) or communication with a client (1.4).
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The Court stated: “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel . . . . ” Id. at 771.
Overview of the Right to Effective Assistance of Counsel
Rather than react after ethical issues occur, are there intervention or remediation techniques a lawyer or her colleague can employ proactively? A draft ethics opinion in Virginia (drawing on ABA Formal Opinion 43-029) states that a supervising attorney who reasonably believes her subordinate attorney is impaired has an obligation to take action before material harm is caused to a client or third person. The opinion grounds this obligation on the duty of a supervising attorney under Rule 5.1(b) (to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct”). The duty is prospective, and applies even if no violations have occurred. Trouble is, the problem will likely be noticed by peers of the impaired attorney. Or the subordinate attorney may notice impairments in the boss. READ MORE.
No judge or attorney wants to willingly remove themselves from courtroom. But the ethical duty to make sure others aren’t hurt from their impairment is the responsibility of those around them. To put it simply, ethics represents the moral code that guides a person’s choices and behaviors throughout their life. The idea of a moral code extends beyond the individual to include what is determined to be right, and wrong, for a community or society at large.
States vary on whether they require lawyers to report or intervene when another lawyer is impaired, according to Bloomberg Law. At least a dozen states have issued ethics opinions on duties, as has the ABA. For example:
HAWAI’I RULES OF PROFESSIONAL CONDUCT
Rule 1.16. DECLINING OR TERMINATING REPRESENTATION.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;
Whether you are a judge, opposing counsel, staff member, or prosecutor, if you see an aging colleague with questionable symptoms, don’t just walk away like an ostrich. Discuss your suspicions tactfully with office management, partners, or your colleague’s spouse. Contact the local bar association for alternatives or intervention support – but do it before someone gets hurt or wrongfully convicted. And certainly, if you are a client and even remotely suspect impairment or incompetence, know your legal remedies.
To do righteousness and justice
Proverbs 21:3
Is desired by the Lord more than sacrifice.
Deadly Clear 