Lawyers with Dementia

As more attorneys practice into later life, the profession faces a growing challenge

By Jill Sauber

Jack is well-known and even revered in his community. He serves on several community boards; his kids were raised and went to public school in the rural county where he ran a private general law practice until he was elected as a judge. He has been a sitting judge for several decades and has won a reputation for being fair and reasonable and bringing a calm demeanor to the bench. In the past several months, however, Jack has been arriving to the courthouse late and looking a bit disheveled. He cannot seem to remember matters from the morning calendar by the time afternoon rolls around, and he is making more rash decisions. His clerk and court reporter are hesitant to approach Jack about issues as they arise, or the errors they see in his decisions, since he becomes agitated and easily angered. 

Unbeknownst to his colleagues, Jack was recently diagnosed with mild cognitive impairment. His wife and adult children are aware of the diagnosis, but everything seems fine to them. At home, Jack may seem a little forgetful, but there are no signs he cannot function normally. Jack’s family is not alarmed by his behavior; nor have they intervened about his work, because they aren’t aware of any reason to. Jack is 61 years old, and has talked about retiring in recent years, but not recently. 

At work, his colleagues are seeing that his executive functioning and high-level decision making is diminished. Although they do not know about the diagnosis, they are aware something is going on. They feel growing concern about his mental capacity and the effect his behavior is having on the public. Jack’s colleagues are stuck in a position that many people find themselves in while working with lawyers who suffer from memory loss: What duty does a fellow attorney or judge have to report Jack, and how do they confront him about the increasing deficits in his abilities?

Lawyers with dementia have been a subject of growing concern as the profession ages and as the general public becomes more aware of cognitive decline and memory loss. We have seen the issue covered in pop culture. For instance, on the CBS show The Good Wife, in 2010, the founding partner of Stern, Lockhart and Gardner (Jonas Stern) was charged in a DUI and battery incident that actually stemmed from dementia that he kept well-hidden from his partners. The charges were later dropped after a breathalyzer test showed he was sober. The partners noticed a change in his behavior but before they could make any moves to remove him or address possible issues, Stern left to start a new law firm and took clients and a third of the staff with him.

In recent years the ABA and other stakeholders have joined forces, compiled data, prepared reports, and conducted studies on the aging bench and bar, as well as the effects of aging lawyers (with or without memory loss) on the profession as more attorneys practice longer.

This article will discuss trends and demographics in the legal profession, how to identify early signs of cognitive impairment or dementia, and ethical issues related to attorneys practicing with memory loss or cognitive impairment.

Our aging profession

The ABA’s 2020 Profile of the Legal Profession includes a number of relevant demographics comparing the American workforce at large to the specific case of lawyers.

• Percentage of US workers age 65 or older: 7 (about 1 in 14).¹
• Percentage of lawyers age 65 or older: 15 (nearly 1 in 6).²
• 2019 (Minnesota) Active Attorneys: 25,823.³*
• Median age of US workers in 2019: 42.3 years.⁴
• Median age of lawyers in 2019: 49.5 years.⁵
• Average U.S. life expectancy in 2017 for individuals age 65 (all races, both sexes): 17.4 years (to projected age of 82.4 years).⁶

About 12 percent of American workers are younger than 25, yet there are very few lawyers under 25, so that could explain part of the median age difference between average workers and lawyers. Also, baby boomers⁷ are aging, and many boomer lawyers are postponing retirement and working into older age (for personal satisfaction, a desire to keep contributing to society, or financial reasons), so the median age has been steadily rising over time. The median age of lawyers was 39 in 1980, 41 in 1991, 45 in 2000, and 49 in 2005.⁸ Our profession is aging.

Indiana University Maurer School of Law professor William D. Henderson proposes two theories for the steadily increasing age of the bar: 1) increased exits from law practice based on gender integration, and 2) slowing absorption of law graduates into the licensed bar. These two theories are not mutually exclusive.⁹

Continuum of cognitive impairment

It is important to understand merely getting older is not a sign of cognitive impairment. Our brains naturally change as we age, but predictable cognitive decline should not interfere with our ability to function normally. “Cognitive impairment” refers to a diminished ability to remember, read, write, problem-solve, perform calculations, and navigate around the environment. Mild cognitive impairment (MCI) can involve impaired functionality in any of those areas, yet not interfere with normal daily activities. Most often issues of MCI involve memory.

Mild cognitive impairment (MCI)

Cognitive impairment occurs on a continuum. A person with a diagnosis of MCI may have full executive capacity and function normally with a very slow progression of brain dysfunction or memory loss. Therefore, a diagnosis of MCI does not necessarily render a person incapacitated or unable to handle their own affairs, but it does make it more likely they will be unable to function normally in the future, depending on the underlying cause of MCI and how quickly the condition progresses.

To be considered MCI, the memory impairment must be more problematic than that associated with normal aging, and some early signs/symptoms include:

• memory loss (such as misplacing items and forgetting recently learned information, conversations, names, etc.);
• language problems (such as trouble finding words); 
• disorientation to time (such as forgetting the day of the week or the date);
• impaired sense of direction (such as getting lost in a familiar place); 
• changes in personality or mood;
• executive impairment; and 
• difficulties with decision making, poor judgment, or impaired organizational skills.

While dementia or Alzheimer’s disease can lead to these symptoms, there are many other treatable disorders that may also cause MCI. It is important to speak with a qualified medical professional and rule out other stressors or conditions that can cause these symptoms.¹⁰

Dementia

Dementia is a general term that identifies or labels a decline in mental ability that is severe enough to interfere with normal daily functioning. Dementia is not a specific disease; the term refers to a wide range of specific medical conditions, including Alzheimer’s. It is often referred to as “senility” or “senile dementia,” which reflects the formerly widespread but incorrect belief that serious mental decline is a normal part of aging.¹¹

For an individual to have dementia, at least two of the following core mental functions must significantly impair normal daily activities:

• memory; 
• communication and language;
• ability to focus and pay attention;
• reasoning and judgment; and
• visual perception.

There are at least 70 causes of dementia. Some are reversible, but many are not. The most common causes of dementia are Alzheimer’s, vascular dementia, alcoholic dementia (also called “wet brain” or Wernicke-Korsakoff Syndrome), and Lewy body dementia. Other mental health or substance abuse issues can mimic or cause dementia.

Researchers have hypothesized that individuals with a higher education are less likely to develop dementia. This could be a result of the brain creating more synapses or because higher levels of educational attainment provide an individual with a certain “cognitive reserve.”¹² There is also speculation that, because people with higher education are more likely to develop healthier lifestyles, their risk of developing dementia is lower.¹³ However, there remains much to learn about dementia in general, including “nature versus nurture” questions.

Although age is not in itself indicative of dementia, we do know that the greatest known risk factor for Alzheimer’s is advancing age. Typical onset is after age 65, and the likelihood of developing Alzheimer’s doubles every five years after the age of 65. After age 85, the risk reaches nearly 50 percent. As attorneys work into older age, there is a greater concern of dementia. But simply assuming that an older attorney is displaying symptoms of dementia because that person is old is a form of “ageism” worth watching out for. It is important to find out whether forgetfulness or a lack of focus is attributable to personal troubles or other workplace issues unrelated to age.

Evidence suggests that the factors that put you at risk for heart disease may also increase the chance of Alzheimer’s and vascular dementia. These factors include lack of exercise, smoking, high blood pressure, high cholesterol, and poorly controlled diabetes. The symptoms of dementia can also be caused by excessive stress.

Some instances of cognitive decline or impairment are reversible, such as when the cause is an independent medical condition, alcohol or drug use, or a situational stressor. An attorney’s natural cognitive decline could easily be exacerbated by stress or some other cause, and in many cases a stress-caused decline can be reversed. But we must also recognize that the later stages of life include many such stressors: health and medical challenges; efforts to catch up and regain control of our practices after such an episode; caregiving responsibilities; grief from the loss of a loved one or the loss of one’s own health and physical capacity.

The hard truth is that age-related cognitive decline or impairment is not usually reversible. And when it happens, the most likely resolution is for the lawyer to stop practicing.

“Lawyer”: An identity crisis

An intelligent attorney who is well-trained in their area of practice may be able to have full conversations with colleagues about a matter without tipping anyone off that they have memory loss. Which is to say, they are often very good confabulators. 

“Confabulation” is a symptom of various memory disorders in which made-up stories fill in any gaps in memory. The term was coined by Karl Bonhoeffer, Arnold Pick, and Carl Wernicke in the early 1900s and applied to patients with Korsakoff’s syndrome. “Fabrication,” “false memory,” and “pseudo reminiscence” are sometimes used to describe the same phenomenon. Sometimes you will hear people call it “honestly lying” since the person telling the story or filling in memory gaps does not know they are making it up as they go. Confabulation is often misunderstood, and can occur in numerous types of syndromes, not just MCI or dementia. 

“Once confabulation starts,” says Joan Bibelhausen, executive director at Minnesota Lawyers Concerned for Lawyers (LCL), the Minnesota Lawyer Assistance Program (LAP), “you encounter big problems.” If the affected lawyer is under the mistaken belief that they have full capacity to practice, then the lawyer, when confronted, “may be uncooperative, unwilling to participate, or, worse, may forget they were disbarred!”

Bibelhausen and Nicole Frank, assistant director of the Minnesota Office of Lawyers Professional Responsibility (OLPR), have noted a number of factors that make these situations more difficult to address with older attorneys.

• Identity. The lawyer’s identity is directly tied to their title and profession. Being a lawyer is not just a job or career, but a lifestyle and a significant portion of their personal identity.
• Denial. The impaired lawyer may continue to believe they are still functioning at a high-enough level to continue to practice. This is true even in cases where the lawyer has a formal diagnosis of dementia or Alzheimer’s.
• Legacy. Often the impaired lawyer has had a long and respected career. “When the attorney is given deference in the firm,” Frank says, “then there is stigma or shame surrounding their forgetfulness, and no one wants to address the issues because they respect the attorney.” 
• Protection. Loyal staff may be protective of the lawyer and attempt to cover for the lawyer’s deficits, not recognizing the potential harm to clients and the public posed by the attorney’s continued practice of law.
• Finances. The lawyer’s real or perceived financial need to continue practicing, to support themselves or dependents, often breeds resistance.

Noticing that an attorney may be confabulating is a nuanced matter. Memory issues could be disregarded completely, or intentionally dismissed to save face—that is, until the problem leads to an ethics or malpractice claim that must be addressed. Lawyers need to be aware of how aging can bring about cognitive changes, and they need to be able to spot health problems in others.

Spotting signs of dementia

“People pick up on signs of dementia when an older attorney becomes forgetful,” Frank says. “Maybe the older attorney experiences trouble learning new technology, or they fall and injure themselves at work.” More specifically, some early signs a lawyer may suffer from dementia include:

• forgetting court, hearing, or important docket dates;
• failing to recall settled case law in their practice area;
• forgetting colleagues’ or clients’ names;
• getting lost driving to work;
• arriving or leaving at odd hours;
• falling or injuring themselves at work;
• missing calls or meetings despite having an up-to-date calendar;
• failure to use technology or forgetting how to use technology;
• a decline in the lawyer’s writing or ability to form logical arguments;
• appearing disheveled;
• rapid weight loss or gain;
• unexplained irritability; and
• changes to mood or demeanor.

Ethical and malpractice issues

No one wants to see a successful 40-to-50-year legal career end up on the front page of newspapers because of malpractice. In Frank’s experience, the ethical issues that arise when a lawyer has dementia are most often caused by forgetfulness/memory issues, being unfamiliar with technology, loss of high-level executive functioning, neglect of client files, competency issues, and lack of diligence in moving files along.

She cites several Minnesota Rules of Professional Conduct that are commonly violated when a lawyer suffers from dementia:

MRPC Rule 1.1 Competence. According to the ABA, the most common ethical problem of a lawyer with cognitive impairment is violating this first rule of ethics.¹⁴ To avoid issues related to competence, have another attorney who is more responsible on client files to provide a “check and balance.”

MRPC Rule 1.3 Diligence. To avoid issues related to failing to move a file along in a timely manner, find ways to remind attorneys about deadlines or help ensure the matter is proceeding. For “snowbird” attorneys who have moved or may be practicing in a different time zone, or attorneys who are not in the office full-time, ensure there is a tickling system in place to touch a file regularly. (While many offices are completely remote during the covid-19 pandemic, it is especially important to have good timekeeping and tickling systems in place.)

Comment [5] to Rule 1.3 discusses that “[t]o prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability....” Frank explains that designating a surrogate or having a “mandatory successor” is helpful for a practice transition, especially for solo or small firm practitioners.

MRPC Rule 1.4 Communication. Frank notes that Rule 1.4 is the source of the most complaints—regardless of age or years in practice. To avoid issues related to keeping the client reasonably informed, she recommends keeping on top of new technology training. Regularly follow up with attorneys to ensure they understand how to use the technology (including how to electronically file with the court, record documents, securely email, and dictate) and that the attorney is able to explain the matter to the extent necessary for the client to make an informed decision.

MRPC Rule 1.6 Confidentiality of Information. Loose lips sink ships, as they say, and cognitive decline generally includes a loss of inhibition and, as Frank calls it, “a less disciplined approach to client confidentiality”—likely because the attorney’s executive functions are affected by dementia, or in part because of confabulation. Either way, an attorney who is experiencing cognitive decline may divulge confidential client information (knowingly or not) by bragging or telling stories about prior cases.

MRPC Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer. To avoid missteps in the ethical rules, and to ensure with “reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct,” a solo practitioner may choose to transition into a larger firm or bring on a partner to provide the element of oversight. If that is not an option, or the lawyer is too impaired to continue practicing law, they may need to exit practice. In law firm settings, other attorneys have an obligation to report under MRPC Rule 8.3.

MRPC Rule 8.3 Reporting Professional Misconduct. Theresa Gronkiewicz, senior counsel for the ABA’s Center for Professional Responsibility and staff counsel for the Commission on Lawyer Assistance Programs, says, “If a lawyer in the firm knows that the impaired lawyer committed a violation of the Rules of Professional Conduct that raises a substantial question as to the impaired lawyer’s fitness, pursuant to Rule 8.3(a), a report must be made to the disciplinary authorities.”¹⁵ In its Formal Opinion 03-431, the ABA Standing Committee on Ethics and Professional Responsibility explained that if a lawyer suffers from a condition materially impairing the ability to practice, failure to withdraw ordinarily would raise a substantial question requiring reporting under Rule 8.3.¹⁶ All of us need to be aware of our obligations to report our fellow attorneys under Rule 8.3.

Violations that are more prevalent among solo/small firm practitioners

MRPC Rule 1.15 Safekeeping Property. Mishandling trust accounts or client funds is a major issue for solo or smaller firms, and those issues are exacerbated if a lawyer suffers from dementia or memory issues. This is disbarment-level misconduct, and Frank emphasizes that “even negligent mishandling is serious enough” to result in disbarment.

MRPC Rule 1.17 Sale of Law Practice. Planning is vital when dissolving, selling, or transferring a law practice. Early planning ensures that the attorney does not violate the ethical rules if attempting to wind up their practice during a crisis or after another major rule violation.

It is unsettling to realize how easily lawyers with dementia can walk into a minefield of ethical violations. If colleagues, friends, or family are keen to early signs of dementia, and take initiative by stepping in to discuss a succession plan or a transition out of practice, the lawyer may be able to avoid the added stress and embarrassment of discipline or lawsuits.

Reporting and intervention are more humane than discipline

Noticing and reporting cognitive impairment in colleagues or partners is a sensitive subject. Unfortunately, there remains a substantial stigma surrounding dementia. A diagnosis can lead to embarrassment, shame, anger, and blame. For those attorneys whose identity is directly tied to being a lawyer, it becomes an existential crisis to acknowledge they may need to put away their briefcases. To make matters even more fraught, many affected lawyers are not even aware of the memory issues they are experiencing. If they are not, even a dementia diagnosis may not overcome their denial that they have any issues that should keep them from practicing. 

Confronting a friend or colleague about lapses in memory or issues in practice can cause friction in relationships. Having an “intervention” may be helpful. Or not: If the attorney who is the subject of the intervention subsequently forgets the discussion and returns to work the next week, then everyone is left with a sense of failure and frustration. Lawyer assistance programs hope to reach lawyers with dementia before their condition becomes a professional responsibility or malpractice issue—essentially the same approach they take in cases involving depression or addiction.

Reporting can take several forms. The most obvious, and problematic, is a lawsuit or ethics complaint against the attorney that brings issues to light. Joan Bibelhausen says the issues come to LCL by the following routes (in order of most to least common):

• judges, colleagues within the firm, or colleagues outside the firm;
• family members or personal friends;
• self-reporting (the lawyer goes to LCL with a diagnosis); and
• clients who have filed a complaint with the Office of Lawyers Professional Responsibility about a possible malpractice/ethics issue.

Bibelhausen recalls a judge reporting an impaired lawyer who appeared in court in the morning, at which point the judge ruled on the matter—only to see the lawyer return in the afternoon to argue the same matter. In fact, judges (who see lawyers regularly) are often the ones to spot inconsistencies with past behavior or lapses in judgment or memory.

LCL offers an “intervention” with LCL staff and the impaired lawyer to discuss succession planning and retiring with dignity. It is a softer approach than a perceived “attack” by fellow shareholders or colleagues. Yet for the reasons discussed above, the offer is not always well-received. Likewise, if the impairment is caused by dementia, an otherwise productive intervention may become a forgotten memory for the impaired lawyer. In one intervention, a sitting judge willingly participated in a healthy discussion with colleagues and family about his memory issues and the impairment others were noticing. They were indirectly calling into question his fitness to sit on the bench, but he took it in stride, and agreed that it would be best to retire to avoid the risk of further embarrassment or ethical issues. He agreed on the spot to retire, effective immediately, and everyone left the intervention with an eye toward helping him transition off the bench. Unfortunately, he was back on at work the following Monday.

If you are considering reporting, LCL can help walk through how to discuss the issues with the impaired lawyer. Do not let things slide! Bibelhausen recommends that concerned colleagues first double-check the impaired lawyer’s work and review the situation. Specifically, consider whether the impaired lawyer’s conduct “raises a substantial question as to [his or her] honesty, trustworthiness, or fitness as a lawyer in other respects” and if you have a duty to inform the appropriate professional authority under Rule 8.3(a)-(c) of the MRPC. Potential intervenors should also consider whether there are other underlying reasons why the attorney could be impaired—such as stroke, medication issues/reactions, alcohol or drugs, or extreme stress—that could be treatable.

Right now, reporting goes one way: LCL does not share information with anyone else, and any conversations with them are completely confidential. The OLPR, conversely, does contact LCL when a matter becomes public, after which LCL will reach out to the attorney to provide resources or assistance. Bibelhausen is interested in a rule change that would allow the OLPR to connect with LCL as soon as a malpractice petition is filed. If OLPR is opening a file regarding an issue that LCL is interested in or could assist with, says Bibelhausen, she hopes that eventually LCL will be informed early on so it may assist.

Larger firms have the advantage of more internal resources to help transition a lawyer out of practice, but they only come into play in a timely fashion if colleagues are attuned to early signs of dementia and confront or report colleagues.