Oklahoma Bar Journal
Aging and Declining Cognitive Ability in Lawyers
By Rhiannon K. Baker
In my former life (before law school), I worked for the Oklahoma Department of Human Services in Adult Protective Services. As a regular part of my job, I made mental capacity determinations of adults potentially in need of services. That experience serves me well now that I have transitioned my practice to elder law and estate planning. Determining whether someone has testamentary capacity is now important in my position, as well as understanding the nuances of declining cognitive abilities in those who may be in need of a guardianship. While it may be difficult to assess a client with declining cognitive abilities, it is another situation entirely in cases where we may encounter another attorney who may have declining cognitive abilities.
As our profession ages and as the general public becomes more aware of cognitive decline, lawyers with dementia have become a subject of growing concern. Maybe someone in our legal profession comes immediately to your mind. Maybe they are a colleague, opposing counsel or potentially even a judge. Maybe they are someone you suspect has cognitive impairment, but you would hate to wrongly accuse someone of being impaired. After all, that person may be well known and maybe even revered in the community. That person may have served on numerous boards over the years, won awards, raised their children in the community and even may have been practicing law longer than you have been alive. Maybe their forgetfulness or eccentricities have another explanation. Who are you to raise the issue of their suspected declining cognitive ability? Do you have an ethical duty as a fellow attorney or judge to report that individual, and do you confront that person about their declining abilities? If so, how do you do so nonconfrontationally and tactfully?
This article looks at trends and demographics in the legal profession, how to identify early signs of cognitive impairment and ethical issues related to attorneys practicing with cognitive impairment.
OUR AGING PROFESSION
In 2022, the ABA Profile of the Legal Profession included a number of relevant demographics that confirm the profession is aging:
- U.S. workers age 65 or older: 7% (about 1 in 14)
- Lawyers age 65 or older: 13% (about 1 in 8)
- Median age of U.S. workers in 2019: 42.3 years old
- Median age of lawyers in 2019: 47.5 years old
The median age of lawyers has been rising over time. In 1991, the median age of lawyers was 41; it was 45 in 2000; and in 2019, it was 47.5. Part of this could be attributed to baby boomer lawyers postponing retirement and working into older age. The reasons for this vary – whether for financial reasons, personal satisfaction or simply a desire to keep busy or contribute to society. As noted above, in 2020, roughly 13% of American lawyers were over 65, compared to only 7% of workers generally. Meanwhile, more than one in nine people over 65 are diagnosed with Alzheimer’s disease, the most common type of dementia. The risk increases dramatically with age.
It is important to point out that merely getting older is not, in and of itself, a sign of cognitive impairment. While there are natural changes to our brains as we age, these changes do not interfere with our ability to function normally. The term “cognitive impairment” is “when a person has trouble remembering, learning new things, concentrating, or making decisions that affect their everyday life.” Cognitive impairment occurs on a continuum and ranges from mild to severe.
Mild Cognitive Impairment
Mild cognitive impairment (MCI) is an early stage of memory or other cognitive ability loss in individuals who are able to maintain the ability to independently perform most activities of daily living. The impairment must be more problematic than that associated with normal aging. The cognitive changes are serious enough to be noticed by family and friends but generally do not affect the individual’s ability to carry out daily activities.
There are two classifications of MCI: amnestic MCI and nonamnestic MCI. Amnestic MCI primarily affects a person’s memory, whereas nonamnestic MCI affects thinking skills other than memory, such as visual perception, the ability to make sound decisions or the ability to judge time or sequence of steps to complete a task.
Symptoms that may indicate possible MCI include:
- You forget things more often.
- You forget important events such as appointments or social engagements.
- You lose your train of thought or the thread of conversations, books or movies.
- You feel increasingly overwhelmed by making decisions, planning steps to accomplish a task or understanding instructions.
- You start to have trouble finding your way around familiar environments.
- You become more impulsive or show increasingly poor judgment.
The causes of MCI are not completely understood. Experts believe that many (but not all) cases result from brain changes occurring in the early stages of Alzheimer’s or other neurodegenerative diseases that cause dementia. As with any medical diagnosis, it’s important to speak with a medical professional to rule out other conditions that may cause the above symptoms.
Dementia is an overall term for a group of symptoms characterized by difficulties with memory, language, problem-solving and other thinking skills. There are at least 70 causes of dementia, one of which is the commonly known Alzheimer’s. Some causes are reversible, but many are not. There are several warning signs that are applicable to all types of dementia, including Alzheimer’s. Some of these warning signs include:
- Memory loss that disrupts daily life. This would include forgetting recently learned information, forgetting important dates or events, asking the same questions repeatedly and increasingly needing to rely on memory aids or other people for things they used to be able to handle on their own. The occasional slip is usually not a concern, but persistent, consequential memory problems call for some professional attention.
- Difficulty performing familiar tasks. Difficulty driving to a familiar location, organizing lists or handling routine tasks that used to be habit could all be signs of dementia.
- New problems with language. Lawyers often have a way with words, both written and oral. However, those with the beginning stages of dementia may have trouble following or joining a conversation, forgetting vocabulary, repeating themselves, and they may stop in the middle of a thought without knowing how to continue.
- Confusion and disorientation with place or time. People with dementia can lose track of dates, seasons and the passage of time. Obviously, counsel’s failure to know where and when to show up could be a significant problem. These symptoms are often easy to spot and should be investigated promptly.
- Decreased or poor judgment. Significant changes in judgment or decision-making are not normal signs of aging. A lawyer’s judgment and ability to make important decisions is a critical part of their job, and impairment from dementia can have catastrophic consequences for the attorney and the client.
- Misplacing things and losing the ability to retrace steps. Misplacing a file, a phone number or a set of keys may be frustrating and sometimes comedic, but persistent problems of this nature can snowball to the point that more serious errors may result. As the disease progresses, they may accuse others of stealing the missing items.
- Changes in mood and personality. Those with dementia can become confused, suspicious, depressed, fearful or anxious. This is particularly true when an individual is out of their comfort zone and out of their routine.
- Withdrawal from work or social activities. Recognizing the difficulties they are beginning to experience, individuals may withdraw from hobbies, work, social activities or other engagements due to their inability to hold or follow a conversation.
- Challenges in planning, problem-solving and abstract thought. Some people with dementia may experience changes in their ability to develop and follow a plan. Difficulty concentrating and taking much longer to do tasks than they used to are also signs of dementia. Dementia can involve a deterioration in executive functioning, and the ability to develop a viable case strategy – much less the ability to carry it out – may become problematic.
Although age alone is not indicative of dementia, advancing age is the greatest known risk factor for Alzheimer’s. The typical onset of Alzheimer’s is after age 65, and the likelihood of developing it doubles every five years after the age of 65. The risk reaches nearly 50% after the age of 85. Accordingly, there is a greater concern and risk of dementia as attorneys work into older age.
As mentioned above, some instances of cognitive impairment are reversible. Examples of reversible cognitive decline include certain medical conditions, alcohol/drug use or situational stressors. However, the hard truth is that age-related cognitive decline is not usually reversible. And when that happens, the best resolution often involves ceasing the practice of law.
Spotting Dementia in Lawyers
As demonstrated above, forgetfulness is only one indicator of dementia. Other signs, some specific to our profession, may include:
- Failure to use technology or forgetting how to use technology after being taught
- Forgetting deadlines, hearings or other important docket dates
- Missing meetings or calls despite them appearing on the calendar
- A decline in the lawyer’s writing and oral argument abilities
- Arriving to or leaving work at odd hours
- Forgetting colleagues’ and clients’ names
- Appearing disheveled
- Unexplained irritability and changes to mood or demeanor
- Falling or injuring themselves at work
- Significant and rapid weight loss or gain
RESISTANCE TO THE CESSATION OF PRACTICE
Many times, a lawyer’s identity is directly related to their title, their employer and their profession. Being a lawyer is a significant portion of their personal identity, and it is more than just a job or career. Walking away from that can be a scary proposition. Even in the face of a formal diagnosis of dementia or Alzheimer’s, an impaired lawyer may be in denial and may continue to believe they are still functioning enough to continue to practice. There may also be a real or perceived financial need to continue practicing in order to support themselves or their family. Sometimes the problem of cognitive decline is ignored until it is too late, and the problem leads to an ethics or malpractice claim that must be addressed.
ETHICAL AND MALPRACTICE ISSUES
Often, an impaired lawyer has had a long, successful and well-respected career. However, that does not mean they are insulated from having problems down the road. The following are several Oklahoma Rules of Professional Conduct that may apply to an attorney who suffers from dementia:
Rule 1.1: Competence
This rule states that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” According to the American Bar Association, the most common ethical problem for a lawyer with cognitive impairment is violating the rule of competence. Much like when a new attorney is starting out, it may be helpful for a lawyer to pair up with another attorney to provide a system of checks and balances.
Rule 1.3: Diligence
“A lawyer shall act with reasonable diligence and promptness in representing a client.” To avoid issues related to diligence, ensure deadlines are docketed so that reminders are provided to attorneys. Set up a tickler system so that the file is regularly touched by the attorney to ensure that a case doesn’t wallow.
Rule 1.4: Communication
Regardless of the age of the attorney, Rule 1.4 is the source of the most client complaints. To avoid issues related to communication, ensure the attorney is able to explain the case to the client so that they can make informed decisions. Also important to this rule is keeping up with technology and different means of communication.
Rule 1.6: Confidentiality of Information
An attorney who is experiencing cognitive decline may also experience a loss of inhibition, making them more inclined to divulge confidential client information (knowingly or not).
Rule 8.3: Reporting Professional Misconduct
This rule comes into play for all of us, and we need to be aware of our reporting obligations under the rule. It states, “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
RECOMMENDING ASSISTANCE AND OFFERING HELP
Given the specialized nature of our work and the opportunities we have to notice the performance of other lawyers, we are in a good position to pick up on and notice cognitive decline in our peers. Noticing cognitive decline in our colleagues is one thing, but doing something about it is another. It is a tricky, sensitive and difficult subject to broach. It is often easier to get involved in cases of substance abuse or mental health problems because that can mean saving someone’s career. Whereas in the case of progressing dementia, intervening often means ending one. Nonetheless, we need to stop encouraging denial, have the uncomfortable conversations and make the hard decisions.
Oftentimes, the attorney is given great deference due to their many years of experience and the negative stigma surrounding cognitive decline. Others do not want to address the issue out of respect or fear of being wrong. The hesitancy is understandable. Recommending assistance to one’s colleague should not be undertaken lightly. An insinuation that a fellow attorney is experiencing cognitive decline is likely to be seen as a personal and professional attack. This is not to discourage you to act but to convey that some approaches are better than others.
Approaching a colleague from a place of concern and not of confrontation is a better approach. Also, leaving out your suspicion of certain specific diagnoses, such as “dementia,” is recommended. Leave that to the medical professionals to diagnose. And remember, it is far better to approach someone before it becomes a malpractice or professional responsibility issue for them.
I have met plenty of older attorneys who are sharp as a tack and who could go head-to-head with the best lawyers in the state, so this article is certainly not intended to be ageist in the least. But it serves as a cautionary tale for those whose cognitive decline cannot and should not be ignored. Medical and professional assistance is available to those who are struggling.
ABOUT THE AUTHOR
Rhiannon K. Baker is a 2009 graduate of the TU College of Law with highest honors. She practices elder law and estate planning in Tulsa and is also licensed in Iowa and Minnesota. She has a passion for mental health and victims’ rights advocacy.
 2022 ABA Profile of the Legal Profession report (July 18, 2022) (available at http://bit.ly/3ESYo5v).
 Cognitive Impairment: A Call for Action, Now! (available at https://bit.ly/3EWWDEu).
 “More than Normal Aging: Understanding Mild Cognitive Impairment” (available at https://bit.ly/3YkXkye).
 2022 Alzheimer’s Disease Facts and Figures (available at https://bit.ly/41HvUW9).
 “Warning Signs of Dementia for Legal Professionals” (available at https://bit.ly/3moKTnK).
 Hudson Jr., David L., ABA Journal, “Lawyers and cognitive decline: Diminished capacity may bring ethics problems for sufferers” (available at http://bit.ly/3EU9qHy) (Sept. 1, 2018).
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 4 (April 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.