Jun 01, 2023
The Aging Attorney: When a Colleague is Impaired
Jun 01, 2023
By Nancy Hoffman PsyD.
Americans are living and working longer than they ever have. According to the California Bar Association in 2020 there were 253,968 attorneys in the state. Of those attorneys, 189,971 are active with an average age of 50. They also note that 16% are over the age of 65. The likelihood of developing dementia doubles every five years after age 65. By 85, the risk is nearly 50%.
These statistics suggest that it is more likely than not that you or one of your colleagues will develop cognitive impairment that will adversely affect the ability to function in multiple areas of life, including work.
Many Baby Boomers plan to work past the traditional age of retirement for a multitude of reasons. Some have insufficient savings and cannot afford to retire; others love what they do and don’t want to stop. They enjoy the comradery and intellectual stimulation that comes from their profession. I have patients in my practice who continue to work part-time well into their 80’s.
What is dementia?
Dementia is an umbrella term that refers to a decline in cognition that is characterized by impairment in two areas of functioning that affect daily life. These areas may include memory, judgment, decision making, abstract thinking, the ability to juggle information, attention and concentration, information processing speed, and visual skills.
There are many different types of dementia and each form depends on physiological changes as well as the area of the brain initially affected. Alzheimer’s is the most common type of dementia and starts in a brain structure found in the temporal lobes. The hallmark of this disease is memory impairment, but language skills are often the next area to decline. People may struggle to find words or use more words than necessary to communicate a simple idea. Behavioral variant frontotemporal dementia affects the part of the brain responsible for judgment and impulse control. This type of dementia usually occurs in mid-life and is often misdiagnosed as a psychiatric issue since it usually affects comportment first. Vascular dementia is the result of strokes or other insults to the veins and arteries of the brain and the symptoms depend on where in the brain the damage has occurred.
My father was a bankruptcy attorney who had multiple strokes in his 70’s due to severe, untreated sleep apnea, and he carried a diagnosis of vascular dementia. His behavioral changes primarily affected his frontal lobes and I witnessed firsthand the devastation that this condition caused. He gave away large sums of money to strangers, was convinced he would win millions in the lottery, made inappropriate comments, and made terrible decisions. He sued his law firm even though his friends and colleagues attempted to dissuade him. The topic of cognitively impaired attorneys is therefore of personal interest to me.
Successful attorneys tend to be highly intelligent and have high cognitive reserve. This is like having extra money in the bank. You can lose some, but it doesn’t really affect your financial picture. In cognitive terms, a loss of brain function will be less noticeable initially in someone who is highly intelligent and well-educated. And a person with good attentional and verbal skills can give the impression that they are functioning on a higher level than is actually the case.
The Illinois Lawyers Assistance Program (LAP) uses what they call the “MAP” approach to determining whether an attorney is showing signs of cognitive deficits:
• Mood changes
• Appearance changes
• Productivity changes
MAP can be a good starting point for evaluating whether or not a colleague is impaired and needs an intervention.
The red flags of cognitive decline in an attorney may include:
• Missing appointments, deadlines, and court filings
• Poor hygiene
• An increase in client complaints
• Memory loss, repeating oneself, asking the same question multiple times
• Forgetting conversations or the details of a case
• Careless legal decisions
• Decreased productivity
• Irritability or other behavior changes including Inappropriate behavior
• Depression or anxiety
• Confusion about time and place
• Getting lost in familiar places
• Social withdrawal
• Making inappropriate or insensitive comments
• Difficulty juggling important information
• Difficulty with planning and the execution of those plans
• Loss of motivation and/or initiation
• Poor judgment
Even simple tasks can require a multitude of cognitive skills such as attention, memory, and reasoning. A cognitively impaired attorney puts themselves, their firm, and their clients in jeopardy, and their impairments compromise the integrity of the legal profession.
What to do if you suspect a colleague of being cognitively impaired?
Most people with cognitive impairment lack the insight to recognize that they need help or they may be in denial. It is unlikely that an impaired attorney will seek help independently.
If you suspect a colleague of being cognitively impaired, there are steps you can and should take.
1. The first step would be for someone the person trusts to initiate a conversation about concerns and observations. There are reversible forms of cognitive decline, including delirium, thyroid malfunction, high levels of stress, a vitamin B12 deficiency, effects of medication, substance abuse, sleep deprivation, traumatic life events, and severe depression, so an evaluation with a primary care doctor or a neurologist is important to rule any of these issues out.
2. Present options, including a reduced workload, taking a break from the practice, or, if necessary, closing their practice.
3. If the attorney does not agree to see their MD or neurologist, you can ask them to have a thorough evaluation by a neuropsychologist. This will help to elucidate their strengths and weaknesses, and make recommendations based on their current level of functioning.
4. If your colleague is still not cooperative, you may want to discuss potential adverse consequences of practicing law while impaired, including loss of reputation, a malpractice lawsuit, or even disbarment.
5. The California Bar Association offers help through the Lawyer Assistance Program: 877-527-4435. “The State Bar of California’s LAP does not provide legal advice, but can discuss the problem, provide a free and confidential professional mental health assessment, and provide direction to the caller as to available services.”
6. If you’re unsure how to proceed, the State Bar of California has an Ethics Hotline: “The Ethics Hotline is a confidential research service for attorneys seeking guidance on their professional responsibilities.
To receive immediate research assistance, call the Ethics Hotline at 1-800-238-4427 (in California) or 415-538-2150. The Ethics Hotline hours of operation are Monday through Friday, 9:00 a.m. to 4:30 p.m.”
The Capacity Worksheet for Lawyers can be found in the Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, by the ABA Commission on Law and Aging and the American Psychological Association (2005). Although the worksheet is designed to help attorneys recognize cognitive impairment in their clients, it can be adapted to evaluate cognitive decline in a colleague. The book is free and can found here: https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf
Dr. Hoffman a geriatric neuropsychologist in Northern California with a forensic practice focusing on the assessment of capacity, undue influence, conservatorships, and elder abuse in older adults. This includes the evaluation of testamentary capacity, financial capacity, capacity to make medical decisions, & the capacity to live independently. She specializes in the differential diagnosis of the various forms of dementia and their influence on capacity. She serves as an expert witness and has testified on issues of capacity and undue influence