Lawyers and Cognitive Decline

• Author: David L. Hudson Jr.
• Pages: 24-25

Lawyers and

Cognitive Decline

Diminished capacity may bring ethics problems for su erers

and other attorneys By David L. Hudson Jr.

It could be a wildly inappropriate c omment, a sudden

loss of memory, a pattern of nonresponsiveness, a st ar-

tling lack of professional judgment, or a g ross mistake

that an attorney would never ma ke.

Any, or all, of these could be a tellta le sign that an

attorney is su ering from cognitive dec line or even

dementia. And cognitive de cline in practicing lawyers

can raise a host of et hical issues and sometimes lead

to lawyers tak ing disability status.

Cognitive decline ca n result from a variety of medica l

or health problems. Perhaps the lawyer had a stroke ,

changed medication or had auditor y loss—or it could be

the onset of dementia. Before colleag ues and partners

determine the proper course of

action, or whether intervent ion is

appropriate, the root cause should

be identifi ed.

“It is important for colleagues

to act when they see a fellow

lawyer showing signs of cog nitive

decline,” says Terry Harrell,

executive direct or of the Indiana

Judges and Lawyers Assi stance

Program. “T he good news is

that oftentimes there c an be a

number of things that cause such

a decline that can be remed ied.”

AGE IS A FACTOR

She relates the story of a judge

who contac ted her organization

expressi ng concern about an att or-

ney in the judge’s courtroom. The

attorney was not resp onding to the

judge’s questions. One of Harrell’s

co-workers asked the judge whether

the attorney showed the same level

of nonrespons iveness outside the

courtroom. The judge said no. It

turned out the attorney w as simply

su ering from hearing loss.

Harrell gives a nother example

of an attorney, a great spea ker, who

suddenly started slur ring words in

court. S ome colleagues thoug ht he

might have had a stroke. However,

upon questioning, they learned the problem wa s caused

by a recent change in his medicat ion. These problems can

surface in pe ople of all ages, but they most com monly

occur with senior law yers.

The ABA’s Commission on Lawyer Assista nce

Programs w rote in its 2014 Working Paper on Cognitiv e

Impairment and Cognitive Decline t hat “the most

common cognitive disorders of ag ing, however, are

neurodegenerative disease s that involve progressive

deterioration of the brain over time.”

The paper notes that the risk of dementia increa ses

dramatical ly over time. “The age at onset is typical ly

after 65, and the likel ihood of developing Alzheimer’s

doubles every fi ve years after the age

of 65. After age 85, the r isk reaches

nearly 50 percent.”

“Lawyers su ering cognitive decli ne

is a growing problem, just as dementia

in the general population is increa singly

an issue,” says ethics exper t Peter A. Joy,

a professor at the Washington University

School of Law in St. Louis.

“People are living longer, and the older

one is, the higher the odds are that one

will get dementia. Th is is especially an

issue for lawyers in privat e practice as

sole practitioners or small o ce settings

who are practicing law as t hey advance

in age. Many midsize-t o-larger fi r ms’

partnership agre ements set 65 to 70

as a mandatory re tirement age, in part

either to avoid or to decrease the odds

of having to face thi s issue,” he adds.

The most common ethical problem of

a lawyer with cog nitive impairment is

violating the fi rst rule of ethics—the duty

of competency. In the ABA Model Rules

of Professional Conduct, Rule 1.1 says: “A

lawyer shall prov ide competent represen-

tation to a client. Competent representa -

tion requires the legal k nowledge, skill,

thoroughnes s and preparation rea son-

ably necessary for the repre sentation.”

Lawyers wit h cognitive defi ciencies

might not be able to recognize t he

strengths and wea knesses of cases,

PHOTO COURTESY OF WASHINGTON UNIVERSITY SCHOOL OF LAW

24 || ABA JOURNAL SEPTEMBER 2018

Ethics

Practice

“LAWYERS SUFFERING

COGNITIVE DECLINE IS

A GROWING PROBLEM,

JUST AS DEMENTIA IN THE

GENERAL POPULATION IS

INCREASINGLY AN ISSUE.”

— PETER JOY