Oregon State Bar Bulletin NOVEMBER 2014
The "Graying" of the Profession:
The Ethical Implications of Aging
By Amber Hollister
“When I was younger, I could remember anything, whether it had happened or not; but my faculties are decaying now and soon I shall be so I cannot remember any but the things that never happened.”
― Autobiography of Mark Twain
The lucky among us age. Approximately one-quarter of active Oregon bar members are 60 or older now as of this writing. Unquestionably, this depth of experience and wisdom strengthens Oregon’s legal community. But with advancing age may come unexpected accidents, illnesses and cognitive issues. Given those potential challenges, what are the ethical implications of aging for lawyers, their supervisors and their colleagues?
Attorneys typically retain their formidable intellects as the decades fly by. But, on occasion, partners or colleagues may realize an attorney is experiencing memory or cognitive issues. Ethics issues associated with aging are bound to arise. It may seem easier to ignore a problem and hope it will solve itself. But overlooking a colleague’s possible cognitive deficit may be an unwise choice that leads to unintended consequences.
As ABA Formal Ethics Opinion No. 03-429 explains, “Impaired lawyers have the same obligations under the [Rules of Professional Conduct] as other lawyers. Simply stated, mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.” A bedrock principle of professional responsibility is that lawyers must provide competent and diligent representation to clients. A lawyer who is coping with any form of mental impairment or diminished capacity may lack the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. Alternately, the lawyer may neglect a legal matter entrusted to the lawyer, fail to keep clients reasonably informed about the status of a matter or fail to respond promptly to client inquiries. RPC 1.3; 1.4. All of these problems may lead to disciplinary complaints or client harm.
At some point, a cognitive impairment may become so serious that it triggers a lawyer’s ethical obligation to stop representing clients. Rule 1.16(a)(2) plainly states that a lawyer must not commence representation of a client or continue representation of a client if the lawyer’s “physical or mental condition materially impairs the lawyer’s ability to represent the client.” But an impaired attorney may not always realize when it is time to cease representation. As noted in a recent North Carolina ethics opinion, “Unfortunately, an impaired lawyer may not be aware or may deny that his impairment is negatively impacting his ability to represent clients.” N.C. State Bar Ethics Comm., Op. 2013-8. When that happens, what comes next?
The Duty of Law Firm Supervisors
Once a lawyer’s partners or supervising lawyers realize that a lawyer is confused, experiencing significant memory loss or otherwise materially impaired, they must take steps to protect the interests of firm clients or risk violating their own ethical obligations. RPC 5.1(b). Establishing internal firm policies and procedures designed to provide “reasonable assurance” that all lawyers in the firm meet their ethical obligations, such as tickle systems, legal assistant participation and reliable conflict checks, is a good first step to prevent potential problems. See Comment  to ABA Model Rule 5.1; OSB Formal Ethics Op 2007-178. But when generalized measures are not enough to prevent client harm, supervisors of an impaired lawyer must take further action. Partners and other supervisory lawyers, including firm directors or managers, will be deemed personally responsible for an impaired lawyer’s misconduct if they know “…of conduct at a time when its consequences can be avoided or mitigated but fai[l] to take reasonable remedial action.” RPC 5.1(b); RPC 1.0(h) (defining knows to mean actual knowledge of the fact in question, although a person’s knowledge may be inferred from circumstances).
An impaired lawyer’s mental condition might be hard to gauge. Cognitive impairments may change on a day-to-day basis, or be episodic in nature. For this reason, ABA Formal Ethics Opinion No. 03-429 suggests that when confronted with evidence of a lawyer’s apparent mental impairment, “it may be helpful for partners or supervising lawyers to consult with an experienced psychiatrist, psychologist or other appropriately trained mental health professional.” After all, not all conditions may interfere with a lawyers’ ability to provide competent and diligent representation. Other conditions may improve or resolve with treatment.
Depending on the nature and severity of the impairment, it may very well be possible to accommodate a cognitive impairment by changing the type of legal work a lawyer performs or increasing the supervision or support provided to the lawyer.1 As ABA Formal Ethics Opinion No. 03-429 explains:
A lawyer who, because of his mental impairment is unable to perform tasks under strict deadlines or other pressures, might be able to function in compliance with the [Rules of Professional Conduct] if he can work in an unpressured environment. In addition, the type of work involved, as opposed to the circumstances under which the work occurs, might need to be examined when considering the effect that an impairment might have on a lawyer’s performance.
But, ultimately, the lawyer must be able to exercise the professional judgment necessary to continue the practice of law.
When a lawyer discovers that a colleague may be experiencing a cognitive impairment that impacts the colleague’s ability to practice law, there are several options. The lawyer may choose to have a frank conversation with the colleague about the lawyer’s concerns. Hearing from trusted and respected colleagues may be enough to convince the lawyer to get help. The Oregon Attorney Assistance Program is available to provide confidential advice and counsel in these sensitive situations.
Making a confidential referral to the State Lawyer’s Assistance Committee (SLAC) may also be an appropriate step. SLAC has the authority to investigate an alleged impairment; if a lawyer’s ability to practice is impaired, SLAC can direct the lawyer to undergo treatment recommended by medical professionals or obtain practice management assistance. ORS 9.568. Lawyers who do not cooperate with SLAC may be referred to discipline for noncooperation. RPC 8.1(c).
Depending on the circumstances, a lawyer may have an obligation to alert disciplinary counsel regarding another lawyer who is experiencing a serious cognitive impairment, but refuses to withdraw from representing clients. As detailed in last month’s bar counsel column, “Other People’s Mistakes: Dealing with Missteps by Colleagues and Opposing Counsel,” the Rules of Professional Conduct require attorneys to report other attorneys to the bar when they “know” another attorney has committed a violation of an ethical rule that “raises a substantial question as to that lawyer’s honest, trustworthiness or fitness as a lawyer on other respects.” RPC 8.3(a).
The duty to report would likely be implicated when a lawyer knows another “lawyer’s physical or mental condition materially impairs the ability to represent [a] client” but has refused to withdraw from the representation. RPC 1.16(a)(2). Under such circumstances, there is likely a substantial question about the lawyer’s “fitness as a lawyer.” RPC 8.3(a).
Planning for a Graceful Exit
All lawyers want to execute a graceful exit from the legal profession. To this end, lawyers should plan now for the possibility that they may unexpectedly become incapacitated. As the Legal Ethics Committee explains in OSB Legal Ethics Op 2005-129, a lawyer’s duty of competent representation includes arranging to safeguard clients’ interests in the event of the lawyer’s impairment, incapacity or death. RPC 1.1.
This duty is especially pressing for a lawyer who has no partners, associates or employees. Absent advance planning, if a sole practitioner with no staff becomes incapacitated there may be a significant lapse of time after the problem arises during which the lawyer’s clients’ needs are not met. As the committee explains, “The duty of competent representation includes, at a minimum, making sure that someone will step in to avoid client prejudice in such circumstances.”
The committee notes the most basic plan could be simply to direct another person to initiate custodianship proceedings in the event of the lawyer’s incapacity or death so the court can appoint a custodian to take over and wind-up the law practice. See ORS 9.705-9.755. But having a more comprehensive plan is encouraged, and will often do more to protect clients’ interests. The Professional Liability Fund’s guide, Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death, provides detailed information about the steps practicing attorneys can take to plan for possible incapacity, including age-related impairments. The guide is available at no cost to members on BarBooks online or as a hard copy from the Professional Liability Fund.
After devoting their considerable time, talents and energy to the legal profession, lawyers want to make a dignified exit from the practice of law. Being aware of the ethics issues associated with aging can help all lawyers achieve this goal.
To read more on this subject, see “Ready or Not: When Colleagues Experience Cognitive Decline” in this issue of the Bulletin.
1. Whether a lawyer experiencing an imparment is entitled to accommodations under the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990), as amended, or its state law equivalent, ORS Chapter 659A, is outside the scope of this article.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 312, or by email at firstname.lastname@example.org.
© 2014 Amber Hollister