Oregon State Bar Bulletin NOVEMBER 2014
As a large wave of older attorneys continues to practice, the people at the Oregon State Bar who help and deal with impaired lawyers are seeing the meaning of impairment in a new light.
More and more calls are coming in from law partners, family members, judges, friends, spouses, clients and others concerned about senior lawyers who demonstrate cognitive impairment. When Douglas S. Querin, an attorney counselor with the Oregon Attorney Assistance Program, joined the staff in 2006, “very seldom did we get calls for this problem,” he says.
Querin, who serves as a liaison for OAAP on the State Lawyer Assistance Committee, or SLAC, and sits on SLAC as a nonvoting member, says he has seen more cases over the past two to three years involving cognitive decline than in all the previous years combined that he has worked with the attorney assistance program.
Lawyer assistance agencies all across the country are facing the same issue and are having to evaluate how they approach such problems. The reasons are multiple: an aging American population living longer; a steady increase each year in the number of lawyers practicing; and a larger number of attorneys who stay in practice longer than in the past, some as a result of the recent economic downturn and its effect on their retirement savings.
Older attorneys make up a sizable percentage of the state’s total lawyers. More than one-fourth of all Oregon lawyers — 26 percent — are over age 60, and 20 percent are 50-59. Thus, combined, nearly half the bar’s active membership is 50 or older.
Committees such as SLAC are accustomed to facing lawyers who have drug and alcohol or mental health problems, says Robert M. “Kim” Lusk, a Portland attorney who chairs SLAC. In comparison to those, which have treatment protocols, unless an underlying, treatable condition is causing the impairment, “dementia is a progressive, debilitating condition there’s not a lot you can do to unravel,” he says. “You can’t develop a remedial program and get the lawyer to follow through. It’s effectively an irreversible process. What exactly do we do with those cases? As an institution, how does the bar deal with the process?”
These are questions with which all bars are having to grapple. When a cognitively impaired lawyer gets into trouble, should that case be considered primarily a disciplinary one or a regulatory matter? How do law partners and colleagues of affected attorneys recognize when someone is experiencing changes that are not just normal and age-related, but are actually signs of disease? And, asks Helen Hierschbiel, OSB general counsel, rhetorically: How do you approach someone who has been a respected pillar of the legal community for 40 or 50 years and doesn’t want to quit practicing, but plainly needs to do so, for his or her own protection and the public’s? “Being a lawyer is their identity,” she says. “How do you help that lawyer let go of being a lawyer?”
Competency Trumps Age
Air traffic controllers are required to retire from their pursuit at age 55. Airline pilots must undergo a health screening at 40 and retire when they turn 65.
Individual members of these two groups can be fit as a fiddle, at the height of their powers and experience, and want to keep working, but they must follow the rules regardless. The stipulations are in place to protect the public, because — in a biological sense — some physical and mental decline inevitably comes with aging.
Attorneys — aside from Oregon judges, whose mandatory retirement age is 75 — are under no such requirement, unless their particular firm imposes such a rule. Experts who have studied enforced retirement policies based solely on age don’t think those are necessarily the best solution. Most older lawyers are still extremely able and productive, and bring to bear their irreplaceable experience to their own practice and their firms’. Competence is what matters, not age, if an individual is still healthy.
“Age is not in and of itself a determinant of ability,” notes Lusk. But “if an individual has early-onset dementia, over time it’s going to get worse.”
According to the American Bar Association’s Senior Lawyer Assistance Committee’s “Working Paper on Cognitive Impairment and Cognitive Decline,” the degree varies to which individuals exhibit normal cognitive changes during aging, with some people maintaining sharp functioning throughout life, and others experiencing declines severe enough to interfere significantly with daily functioning.
Age-related changes in cognitive abilities are an expected part of normal aging, the paper points out. With increasing age, we tend to process information more slowly and retrieve it less efficiently, and to find learning new information and completing complex problem-solving more challenging. In contrast, other abilities, including vocabulary, breadth of general knowledge, emotional functioning and wisdom remain intact or even improve.
“There are normal changes in the brain after age 60,” Medford neuropsychologist Michael R. Villanueva explains. “Small white matter changes, sometimes a result of vascular insufficiencies or small strokes. There is some atrophy or shrinkage, and also cognitive changes that occur with aging.”
But cognitive disorders of aging are biologically based diseases that cause abnormal changes that are not expected with age, according to the ABA paper. The most common of these are neurodegenerative diseases, which “generally have an insidious onset and gradual progression, and are associated with protein-specific neuropathological changes.” Dementia is a clinical term for a decline in cognitive and behavioral skills that is severe enough to interfere with daily functioning and being able to live independently.
Age, family history, genetics, lifestyle, diseases and accidents are the most common risk factors for all types of dementias, the ABA paper says, but the greatest known risk factor for Alzheimer’s disease — the most common form of dementia — is advancing age. The age at onset is typically after 65, and the likelihood of developing Alzheimer’s doubles every five years after the age of 65. After age 85, the risk reaches nearly 50 percent.
“The cold, hard facts are that the longer we live, the more likely we are to get some form of dementia,” says Villanueva. “It’s a numbers game.” As more lawyers work later, into their 60s and 70s or beyond, “a certain percentage will, no matter what their level of intelligence.”
The ABA’s Senior Lawyer Assistance Committee developed a Cognitive Impairment Worksheetto help attorney assistance professionals and lawyers’ colleagues recognize when an attorney is exhibiting signs of cognitive decline or impairment. The signs to look for come under categories such as memory, communication and language, focus and paying attention, and reasoning and judgment. (See sidebar, “How to Recognize Problems.”)
The paper also contains advice on how to approach a discussion with a cognitively impaired member of the firm. (See sidebar, “How to Approach Cognitively Impaired Colleagues.”) “This is a difficult conversation to have,” Querinacknowledges. “Unfortunately, there’s a tendency to discount what they are seeing until things get to where they can no longer ignore it.”
“Partners are reluctant to have discussions about the need to retire, and it is exactly that conversation that needs to happen to allow that lawyer to retire with dignity” instead of ending up being disciplined, says Hierschbiel. What’s particularly sad is when an individual is part of a firm and the members did not deal with it, she says. “That’s what we don’t want to happen.”
Querin concurs. “The most heartbreaking situations are where a lawyer may have had a stellar reputation for 30 to 50 years of practicing, then changes with cognitive issues, in part because no one raises the problem, and he keeps practicing and gets into trouble, which raises the attention of the bar,” he says. “Then you have a senior lawyer with a great reputation” whose legacy ends up being under “an ethical cloud.”
By the time such discussions take place, the impaired lawyer’s reaction may be denial, because part of the cognitive changes may include the inability to recognize that a problem exists, says Villaneuva. “An inability to know there are difficulties is part of the nature of what’s happening to them.”
“In the area of drug and alcohol and mental health, we do get self-referrals” when affected lawyers recognize they have a problem and want to be proactive and avoid becoming part of the disciplinary process,” says Lusk. “We haven’t had that so much with aging” issues. Individuals who recognize that they are slipping mentally may turn to their support system “to help them wind down” their practice, he observes.
But Lusk says “one of the complicating factors” preventing some impaired lawyers from retiring who recognize that their abilities are fading is related to their financial circumstances. “With the hard economic downturn of the last five or 10 years, a lot of lawyers feel trapped and keep going. Attorneys may be significantly impaired but have someone to shepherd them and have their work be done by others. Those are the cases that are concerning.”
OAAP can work with law firms to help them head off future disciplinary problems with an affected lawyer, but the key is to act sooner rather than delaying, Querin says. The bar’s intention is to carve out a compassionate way to deal with these individuals, he says, to distinguish these cases from those related to, say, deliberate misconduct.
Cases involving cognitively affected individuals referred to SLAC probably need to be addressed at the regulatory level, Lusk says. “We’re aiming to fix problems that are fixable. At SLAC, what we’re trying to do is formulate some protocols, trying to figure out what makes sense.” Such cases need to be handled with some tact and diplomacy, he says.
Intervening Protects Everyone
To the extent it can, the bar wants to avoid having cognitive cases end up in discipline, yet to still make sure the affected lawyer doesn’t pose risks for the public, says Hierschbiel.
The bar Rules of Procedure allow the OSB to petition the Supreme Court to transfer an attorney involuntarily from active status to inactive status. This represents an emergency procedure to short-circuit the disciplinary process to effectively suspend the lawyer immediately, pull his or her license and decide what to do afterward, says Lusk.
“We have the authority to do that now,” Hierschbiel says. “We have a couple of cases open right now, which is unusual. This particular rule has been used infrequently in the past, but as the baby boomer generation of lawyers ages, we anticipate that these types of severe cognitive impairment cases are likely to become more common, and use of the rule more necessary.
“The other way we address it is via custodianship statutes,” she adds, which provide a procedure by which the bar can assume control over an attorney’s law practice. The OSB will be submitting a bill in the 2015 Legislature that would amend the statute clarifying when the bar can initiate custodianship proceedings. The bar wants to streamline the process, which she calls “unnecessarily costly and cumbersome,” while still providing procedural safeguards.
When colleagues recognize that an attorney is experiencing cognitive decline, “The safest place to start is the OAAP,” advises Querin. OAAP won’t make final determinations, but itcan act as a “safe middleman” and help the affected individual get referred for professional evaluation, he says. Experts stress the importance of getting the person evaluated in case the decline is caused by risk factors or physical conditions that are potentially treatable, which many are.
According to a 2007 report by the Joint Committee on Aging Lawyers, produced by the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers:
The rules of professional conduct in most jurisdictions require lawyers to report serious misconduct by another attorney, regardless of age or seniority. Likewise, in most jurisdictions, a partner or supervising lawyer who knows of another partner’s or subordinate lawyer’s nonserious misconduct is obliged to take remedial action. However, in most jurisdictions, the rules provide little guidance for lawyers, judges and lawyer disciplinary agencies faced with an apparently impaired senior lawyer who is not engaging in serious misconduct but whose impairment may present a risk of harm to clients or the public. Impaired senior lawyers present many of the same problems in identification and response as lawyers who are impaired because of drugs or alcohol or mental illness. Until a crisis arises, colleagues, clients, courts and family members who may suspect an age-related impairment may be reluctant to interfere or take any action.
Neuropsychologist Villaneuva acknowledges that calling attention to a cognitively impaired lawyer or doctor is “difficult, but part of our public trust. Both attorneys and physicians have a considerable degree of respect and public trust,” and thus intervening is essential, to help people affected and those around them, but also because professionals owe due diligence to the public.
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at firstname.lastname@example.org.
© 2014 Cliff Collins