Graying lawyers represent pool of
experience, ethical dilemma
This is the second of three articles based on presentations at the recent 33rd National
Conference on Professional Responsibility.
As the population of the U.S. is aging, so are its lawyers. “The experience and expertise [of senior lawyers] should be celebrated and utilized,” said Kim D. Ringler, Hackensack, N.J., of the Joint Committee on the Aging of the Profession of the Association of Professional Responsibility Lawyers and the National Association of Bar Counsel.
Ringler was one of the experts on aging who joined lawyer ethics and discipline practitioners at the 33rd National Conference on Professional Responsibility to explore how lawyers can detect and respond to possible problems in discussing “Ethics for the Ages: Graceful Graying or Senior Tsunami.”
Many lawyers function with distinction in their older years, she pointed out, but mandatory retirement ages adopted by many law firms can transform 70-year-old partners into sole practitioners, creating a “new class of problems.”
As a response to the increasing number of older lawyers who wish to continue practice, Ringler urged bar associations to create options that “can ensure that older lawyers who are experiencing some changes can continue to be productive.” An example might be an emeritus lawyer status that could prevent an aging lawyer from practicing independently but still allow her to hold herself out as an attorney. Inducting the 70-year-old lawyer into an organization of honor might ease acceptance of protective mechanisms, such as mentoring arrangements or oversight by a lawyer assistance program, she said.
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Moderator Donald D. Campbell of Detroit cited statistics showing that within five years the number of Americans 65 or older will double from 35 million to 70 million. In Michigan, estimates project the number of lawyers reaching age 70 will double in three years and triple in five. Cynthia Galliher, deputy executive director of Lawyers Concerned for Lawyers – Administration and Helpline of Pennsylvania, Inc., noted research indicating five to 10 percent of people aged 65 or older suffer cognitive impairment with associated functional decline.
The numbers speak to the dilemma. While senior lawyers represent an enormous pool of experience and expertise, some of them, reflecting the cognitive changes of a small percentage of the general population, may also raise the potential for client harm.
Recognizing cognitive impairment or dementia in others can be difficult, and most people are unaware of any change in themselves. While there is no single tip-off that aging is a problem, said Caroline N. Harada, M.D., a clinical instructor in geriatrics at the University of Chicago, significant differences in a person’s ordinary way of acting can be key. Learning ability should not degrade simply because of age, she added, though it can take longer to recall specific information. Sophisticated testing can be required, particularly with highly educated professionals like lawyers, and primary care physicians tend to significantly under-diagnose dementia, she said
Ringler cautioned that evaluative techniques can be “tremendously invasive,” and sometimes wrong. She urged each jurisdiction to evaluate best practices for approaching the aging population while avoiding misuse of prophylactic measures. “It’s easy to get two mental health professionals to certify incompetence,” and can be hard for the senior lawyer to prove the negative that a problem does not exist, she said.
Among reasons lawyers may deny that impairment is loss of identity or dignity—a person who has defined himself by his work may be unable to contemplate life without work. But for others, it may be an issue of finances.
What should other lawyers do who detect behavioral changes? Galliher suggested options—an intervention, but one that is a “gentle conversation, respectful and genuinely caring;” consultation with the lawyer assistance program; possibly a gradual process of redirecting the lawyer to a conditional practice—that would be effective.
“There’s no great notch on our belt to taking out somebody who is 80 years old and not functioning well,” said Ringler, adding “that’s not the way to end a 50-year career.” She reiterated her call for creating structures to address the problems, while recognizing that “as a profession, we can barely assure our members get health insurance, disaster insurance and malpractice insurance. Protecting our senior members may be more difficult, but we must address it,” she said.
With routine mechanisms in which lawyers could participate without stigma, it could be possible, she said, for senior lawyers to have meaningful and honorable careers to the last stages of life.
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© 2007 American Bar Association |
