Beyond Just Surviving: Aging Lawyers and Fitness to Practice, 0221 RIBJ, RIBJ, 69 RI Bar J., No. 4, Pg. 25

PositionVol. 69 4 Pg. 25

Beyond Just Surviving: Aging Lawyers and Fitness to Practice

Vol. 69 No. 4 Pg. 25

Rhode Island Bar Journal

February, 2021

January, 2021

Craig Pinkus, Esq.1 Bose McKinney & Evans LLP Indiana

Casey Lee, Esq. Lawyers Helping Lawyers Committee

This is for lawyers who hope to practice law at their best for as long as they want. If you strive to do that-not just dodge disciplinary commissions or malpractice lawsuits-you must include physical fitness as you age. Beyond old familiar reasons to get in shape, medical science tells us fitness keeps old brains working and being unfit does the opposite. Today there is another bonus for older persons: fitness reduces vulnerability to COVID-19.2

Rules v. Excellence

We are not required by law to do our best. Failing to pursue excellence at 25 or 75 is not professional misconduct.3 As for physical and mental conditions, the Rules of Professional Conduct deal only with serious impairment.4,5 They focus on compliance with express obligations and prohibitions [Rules Approach].

Failing to pursue excellence is not malpractice. Liability comes from "failing to exercise the ordinary skill and knowledge expected of lawyers."6,7 Over a century ago, Indiana lawyers were told they are not "bound to bring to the practice of his [or her] profession the highest skill and learning."8 '9They are merely invited as a matter of "personal conscience" to "strive to attain the highest level of skill."[10]

The complexity of our occupation likely insulates it against a simple Rules Approach commandment to do your best. Yet as medical science accumulates research on aging minds doing complex tasks, it is not unthinkable that someday mental fitness metrics may enable a Rules

Approach. Meanwhile, only sole practitioners today are encouraged to have succession and client notification plans.[11]

If your conscience demands high standards and devotion to clients, being fit as you age is truly the only option. Indiana Chief Justice Loretta Rush believes in the importance of mind-body fitness at any age. She explained, "For any of us to be our most effective, we have to take time for ourselves and families.

That means dedicating part of the day for exercise, meditation, prayer, thoughtfulness-some-thing to keep each of us on a path of wellbeing and recommitment to the daily tasks at hand." [Excellence Approach].

Lawyer Assistance Programs Look at the Person Practicing Law

The inadequacy of treatment of serious mental impairments under the Rules Approach gave rise to the protective and compassionate work of lawyer assistance programs. The needs of lawyers with alcohol impairment led to the earliest program in 1973 in California.12 The stressful profession, sheer numbers of the impaired, and harm to the public led to similar programs including Indiana's highly regarded Judges and Lawyers Assistance Program and Rhode Island's Lawyers Helping Lawyers Committee.

Reflecting national studies, lawyers are seeking help with substances used disorders, depression, anxiety, and stress. A steady stream of contacts requires creative, delicate, and respectful resolutions, and more resources are needed. But JLAP's might also be the logical place to offer a trusted clearinghouse of information and resources on aging, cognitive decline, and counteracting them with fitness. The Rhode Island Bar Association provides strictly confidential help to its members and their families through the Lawyers Helping Lawyers Committee and Coastline EAP, a private organization that has been helping Rhode Island lawyers for more than 30 years.13

Science, Fitness, and Aging Brains

We speak of "mind" and "body" as different things. Convenient to discuss a broad range of human events, this convention obscures the fact that thinking is performed by cells and chemical reactions in our bodies. Medical science does not know everything about the intricacy of the central nervous system doing the thinking, but it all occurs in a body and much is known that should not be ignored.

Reported research points to fitness as critical for cognitive health. One hour of exercise three times a week is associated with substantial improvements in information processing speed, auditory and visual attention, planning, and working memory. This may in part be due to exercise causing significant increases in the size of critical areas of the brain.14 Brains on exercise become more responsive and develop new wiring.15

Exercise influences blood vessel formation which increases blood flow to vital brain areas.16 Neuroimaging shows that aerobic exercise reduces age-related loss of brain tissue and "enhances cognitive strategies."[17]

Standard medical disclaimers apply. Get medical advice before starting a mid or late-life exercise program. I cannot give you medical clearance.

With that caution, going from zero to some regular exercise is almost always good for practicing law at your best. But be mindful that exercise benefits are specific to what you do. Most studies cited here measure aerobic exercise effects, and it is essential. Many experts add weight training and stretching. An example of the specificity of training is research finding more central nervous system benefit from high load resistance [heavy weights] training than using lighter weight repetitions totaling the same cumulative weight.18

The Need and Doing More Than Just Recognizing It

Most Americans engage in no physical activity as they age. There was little improvement over the last decade. In 2010, about 11 percent of people 6519 and over participated in leisure-time aerobic and muscle-strengthening activities meeting the modest 2008 federal physical activity guidelines.20 Four years of cheerleading and threats by government, health organizations, insurance companies, wellness programs, charity events, physicians, physical therapists, and sports figures...

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