As the legal profession ages, dementia becomes an increasing concern
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The legal profession may struggle to identify lawyers experiencing cognitive decline, partly because those who are struggling are good at hiding their problem.
Lawyers have developed routines and social skills in which they can function almost automatically, and they are able to redirect conversations when they become confused, Bloomberg Law reports.
Lawyers tend to think they’re invincible, and that can be a problem when they begin to experience the signs of dementia, according to Tish Vincent, chair of the ABA’s Commission on Lawyer Assistance Programs, who spoke with Bloomberg Law.
Another problem is that lawyers’ identities are closely intertwined with their work, and they are reluctant to give up their professional identities.
While larger law firms have protocols to monitor lawyers when needed, the safety net isn’t there when lawyers are working alone or have no one supervising them.
There is no comprehensive information about how often ethics officials and lawyer assistance programs deal with lawyer dementia, according to Bloomberg Law. But the percentage of lawyers older than age 65—about 14%—is higher than the 7% of workers generally in that age group, suggesting that the problem could be worse in the legal profession.
And the numbers are growing. Over the last decade, the number of practicing lawyers older than age 65 has increased more than 50%.
In the general population, about 11% of those older than age 65 have Alzheimer’s dementia, according to the Alzheimer’s Association.
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.
Formal Opinion 03-429, the 2003 opinion by the ABA Standing Committee on Ethics and Professional Responsibility, said law firm partners or those with supervisory authority who are aware of a lawyer’s mental impairment must take steps to provide reasonable assurance that the impairment won’t result in breaches of model ethics rules.
When an impaired lawyer has violated ethics rules, partners or supervising lawyers may have an obligation to report it to the appropriate professional authority, the opinion said. Only ethics violations that raise a substantial question regarding the violator’s honesty, trustworthiness or fitness as a lawyer must be reported.
Bloomberg Law discussed the story of Bethany McLean, an Illinois lawyer who was hired for part-time work in July 2010 by lawyer Robert Fritzshall, who McLean thought was about 80 years old. McLean soon realized that Fritzshall was missing deadlines and failing to keep clients informed about significant developments. Several cases had been dismissed for a failure to prosecute.
She soon learned that Fritzshall had hired about a half-dozen lawyers before her, and all quickly quit. McLean raised her concerns with Fritzshall—to no avail. She called the Illinois Lawyers’ Assistance Program, but there seemed to be no systematic approach for dealing with dementia. Calls to the Illinois Attorney Registration & Disciplinary Commission’s ethics hotline also ended in frustration.
Finally, McLean told Fritzshall that she was resigning and reporting him to the disciplinary commission. She detailed the errors that he had made and laid out approaching deadlines.
The disciplinary commission filed a complaint against Fritzshall alleging incapacity in August 2011. Eventually, Fritzshall stopped responding, and he was placed on disability inactive status in May 2013. He died in hospice care in October 2015 at age 86.
Bloomberg Law noted that before Fritzshall’s disciplinary hearing, the Illinois Supreme Court changed its rules to allow lawyers facing minor misconduct charges to petition for “permanent retirement status.”
The disciplinary commission’s 2012 annual report said the change was made in response to challenges faced by an increasing population of aging lawyers. The aim was to provide “a reasonable and dignified option for senior lawyers who should retire from the practice of law while preserving their dignity and hard-earned reputations.”