By Scott R. Mote, Esq., Executive Director of the Ohio Lawyers Assistance Program
It happens to all of us. We age. There will come a time when we are not as sharp as we used to be, we will begin to forget, and our bodies will start to move slower than they once did.
This is a challenge for everyone. But as judges and lawyers, having a sharp mind is crucial to our jobs. It is our duty to serve and protect the public, and protect the integrity of the law, yet you might know someone who may be causing unintended harm to clients because of the way our minds and bodies change as we age.
How do we know when it is time to retire?
Let’s use Attorney Bob as an example. Bob has been practicing for 50-plus years. He practiced with the same firm for most of his career, and his former partners have all retired and moved to sunnier climates, or passed away.
For his entire career, Bob has been a well-respected member of the bar and community. The profession has watched him age gracefully, but has noticed him making more mistakes than usual the past couple months. They see him give an unnecessary and disorganized opening statement that is full of references to papers that he drops on the floor twice. Last week, when Bob put his client on the stand, he called him by the wrong name.
Bob has nine open cases in probate court, and six have not been filed in a timely manner. He has been cited to appear on all of them, and promised to get things cleaned up. The new due dates have come and gone, and it's time to send citations again. Two clients have called the court, complaining that Bob is not responsive to their requests to get their parents' estates finished.
Bob is not purposely trying to harm his clients. He may not even understand or be aware that his aging mind is causing him to make mistakes, miss deadlines and even become insensitive to others. But Bob is a typical example of how getting older can cause unintended consequences for clients.
When it is time to retire
Whether you are concerned about yourself or another lawyer, it is important to recognize the signs that it is time to retire. Common signs and symptoms include:
Missed deadlines
Repeatedly making the same mistakes and not remembering the first one
Confusion
Forgetfulness
Disheveled appearance
Loss of skill set
Irritability
Dissatisfied clients
Disciplinary problems
Family member's concerns
Office staff becoming upset or angry with you
Court officers expressing concern
Because the example with Bob can happen to anyone, it is important for other lawyers, judges or members of the profession to learn how to talk to a colleague about retiring. This can be a challenging conversation, but you can do it professionally and thoughtfully.
Be empathetic
Speak with empathy and let the person know you respect their integrity. Because you do, you would rather see them leave the profession positively instead of as a defendant in a malpractice case. It is much better for their reputation to exit with grace than to leave as a respondent in a disciplinary action with their name and photo in the local newspaper.
Do not make the conversation threatening. State the facts and your concerns. If you were talking to Bob, you might say:
“Bob, I, along with some others in our profession, have noticed that you have been missing deadlines, calling clients by the wrong names, making simple mistakes, and clients are starting to complain. I know that you are not making these mistakes on purpose and that you care deeply about the people you are helping, but for the sake of your clients and your reputation, it might be time for you to start thinking about life outside of the law. Have you thought about the future of your practice or winding down?”
Bob might get defensive and make excuses about his errors. He might even walk away and tell you that you are ridiculous or just creating distress for him.
Help him understand that you would rather see him leave the practice with integrity. If clients keep complaining, he could end up as the defendant in a malpractice case or as the respondent in a disciplinary action. Would he rather see his name and photo in the local newspaper about being disbarred?
Give examples
In 2011, the Iowa Supreme Court Disciplinary Board alleged that an Iowa attorney violated 17 Iowa Rules of Professional Conduct while working on foreclosure and bankruptcy matters. He previously was publicly reprimanded in 1999 and 2007, and he voluntarily placed his license on inactive status in 2009.
The lawyer admitted that he “desperately hung on too long” to his practice, and the court held that illness can be a mitigating factor with respect to discipline. During the time of the violations, the lawyer was suffering from advanced diabetes, high blood pressure, extreme stress, early-onset dementia, tremors and restless leg syndrome. The attorney’s license was suspended for one year [caselaw.findlaw.com/ia-supreme-court/1572315.html].
In 2011, the Dayton Bar Association charged an Ohio attorney with multiple violations of the Rules of Professional Conduct for his alleged mishandling and neglect of two probate matters for a client. The attorney missed court deadlines, failed to appear for court hearings, and failed to keep in contact with his client.
During the Board on Professional Conduct (fka Board of Commissioners on Grievances and Discipline) hearing, the panel became concerned about the lawyer’s cognitive abilities and memory. At that time, the lawyer was 71 years old, and he repeatedly explained that his confusion was the reason he neglected the probate matters. A psychiatrist examined the lawyer, and diagnosed him with age-associated cognitive decline, which likely impaired his ability to deliver quality legal services. The Court found that this diagnosis was relevant to determining the appropriate sanction.
The board recommended that the lawyer be suspended for two years, with the entire suspension stayed on the conditions that he complete continuing legal education courses as recommended by the panel, serve two years of monitored probation, and contact the Ohio Lawyers Assistance Program, undergo an assessment, and enter into a contract with OLAP [supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5634.pdf].
The lawyers in these cases did not intend to harm their clients. They acknowledged their wrongdoings, demonstrated good character, and cooperated in the disciplinary investigation. Unfortunately, no treatment is available for age-associated cognitive decline and, in these cases, the lawyers’ cognitive decline impaired their ability to provide quality legal services.
Know the facts
It is important to get the facts straight. Just because a lawyer is not answering the judge’s questions does not necessarily mean that he is experiencing cognitive decline. He might be suffering from hearing loss. A lawyer who is slurring her words might not be having a stroke. She could be having a reaction to a new medication. Make sure you know that the lawyer is making mistakes or appears to be making mistakes because of an age-related impairment.
Team up
It’s also wise to partner with a trusted individual, or several, who have first-hand observations of the lawyer’s behaviors that are raising concerns. Consider using the signs and symptoms above as a checklist to gather and organize your concerns. Have a preparatory meeting with the concerned individuals, and then have a nonconfrontational meeting with the lawyer and your team of concerned individuals.
Be kind
Actively avoid confrontation and begin conversations with kind words. Consider starters or icebreakers like these:
“I am concerned about you because…”
“We have worked together a long time, so, I hope you will not think I’m interfering when I tell you I am worried about you…”
“I have noticed you have not been yourself lately, and I am concerned about how you are doing…”
Get the lawyer to talk. Listen, and do not lecture. Add responsive and reflective comments. Express concern with gentleness and respect. Share firsthand observations of the lawyer’s objective behavior that is raising questions or causing concerns while also reviewing the lawyer’s good qualities, achievements and positive memories. The key is to approach the lawyer as a respectful and concerned colleague, not an authority figure and to act with kindness, dignity and privacy, not in a crisis mode.
Have a plan
Always suggest the lawyer see their primary care physician. You can also recommend an assessment by a specific professional and have contact information ready. And when appropriate, offer assistance and make recommendations for a plan that provides oversight, such as a buddy system or part‐time practice with co‐ counsel.
When appropriate, propose a voluntary transfer of attorney status to an available non-practicing option, such as taking inactive, retired, or emeritus status. Remember that this is a process, not a one-time event.
Contact the Judicial Advisory Group or the Ohio Lawyers Assistance Program
JAG and OLAP can do an assessment or make a referral for one, and help aging attorneys navigate the difficult process of changing how they practice, or how to retire. Each case is handled confidentially, individually and with compassion.
Reporting
As lawyers and judges, we have a responsibility to protect the public and maintain the integrity of the legal profession. But what do you do if you witness an attorney or judge whom you think is suffering from age-related cognitive decline? There is no absolute, clear-cut answer, but guidance is available. Remember, the goals are to help your colleague and protect the public from impaired lawyers.
See Ohio Code of Judicial Conduct Rules 2.14 and 2.15, and Ohio Code of Professional Conduct Rule 8.3.
Contact JAG and OLAP (Scott R. Mote, Ex. Dir. smote@ohiolap.org 800-348-4343)
See also:
ABA Formal Opinion 03-429, Obligations with Respect to Mentally Impaired Lawyer in the Firm [americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_03_429.pdf]
ABA Formal Opinion 03-431, Lawyer's Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment [americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_03_431.pdf]
