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Age-related competence problems can be tricky to recognize, diagnose

By Susan McRae
Special to the Bar Journal

A State Bar working group exploring the challenges facing senior lawyers and their clients discussed continuing education courses, assessment tests and peer counseling as tools to help attorneys recognize how age-related health problems affect their work.

At its meeting last month in Los Angeles, the Board of Trustees’ Senior Lawyers Working Group heard testimony from medical and legal experts on ways to safeguard the public and encourage lawyers with otherwise unblemished records to retire with dignity. The group hopes to help lawyers avoid ending a career in disgrace because of misconduct caused by age-related disabilities.

The working group’s focus was on the disciplinary definition of “competence” to practice law, said Deputy Executive Director Robert A. Hawley. Under State Bar Rule 3-110, it is a disciplinary offense to “intentionally, recklessly or repeatedly” fail to perform legal services competently. Competence is defined as legal learning, diligence and “the mental, emotional and physical” ability to perform legal services. One suggestion was to have lawyers over a certain age take a continuing education course explaining the rule’s requirements, in much the same way that attorneys are required to have Minimum Continuing Legal Education (MCLE) on substance abuse and elimination of bias.

The panel is also exploring assessment tests to help evaluate whether someone’s mental competency is impaired, they need peer intervention and counseling or other professional help. The proposals are similar to those used by programs the State Bar already has in place to help members with drug and alcohol addiction and mental health disorders.

“The model is there,” said Hawley, referring to the Lawyer Assistance Program. “It’s an extension of what has become mainstream with substance abuse. We’re now at the beginning of another paradigm shift. The report from the working group will set a roadmap for moving forward.”

The legal profession isn’t alone in the problem, the group noted. The mental and physical health problems that come with age have received growing attention from many other professions in recent years as the nation faces a boom in its aging population, and a sagging economy forces people to delay retirement. Although many workers remain productive well into their 70s and 80s, experts noted that some people experience age-related problems, such as memory loss, as early as their late 40s. A person with mild cognitive impairment (MCI) usually has more serious problems with language, memory and and judgment than is normal for people of that age. They are also more likely to suffer from Alzheimer’s disease and other forms of dementia later in life.

A 2011 State Bar survey showed that 48 percent of practicing lawyers in California are over age 55, and 43 percent are over age 60. These percentages are expected to escalate dramatically, the survey said, as baby boomer lawyers reach retirement age.

Addressing the panel, gerontologist Dr. Diana C. Homeier and forensic neuropsychologist Susan I. Bernatz said that although only 5 to 10 percent of people could be classified as having cognitive impairment by they time they are 65, that percentage swells to about 50 percent after seniors turn 85.

But Bernatz cautioned that cognitive impairment is a normal part of aging and is not necessarily debilitating. Diagnosing  someone’s memory or language problems is a very complex process and can’t be done with a 30-question test commonly used to screen for cognitive impairment. One problem with devising a test for lawyers, the group said, is that the profession has so many functional aspects to competence, it would be difficult to design a “one-test-fits-all.”

Working group member and Trustee Dennis Mangers, a former legislator who is not a lawyer, said the statistics of aging lawyers are sobering. He said many people in the 70-to-80 age group expect to never retire “because that’s when you are through.”

New Mexico chief discipline prosecutor William Slease, testifying via video link, told the group that several states are developing ways to educate lawyers about age-related impairment. New Mexico has produced a video on how to spot age problems in colleagues, he said. Other jurisdictions, including California, he noted, are looking at alternative ways in which senior lawyers can contribute other than practicing law. They could mentor new lawyers, serve in emeritus positions and do pro bono work.

The group agreed that whatever method is used to evaluate cognitive abilities, it’s important that it not be construed as discriminating against seniors.

California solo practitioner Jay Foonberg, long active in State Bar and American Bar Association senior lawyer groups, echoed that concern. He said competency tests should be administered to all professionals over 75, not just lawyers. Addressing a perception that elderly lawyers commit malpractice, he said, “Show me the numbers. You hear all these stories about dementia … but where are the numbers?”

Holding up a copy of his recent article, “Knowing When to Hold’ Em and Knowing When to Fold’ Em,” Foonberg said it contains a list of simple questions to help lawyers decide when to transition out of full-time practice. The problem, he said, is getting lawyers to admit their vulnerabilities. You need a colleague whom you trust to help you decide.

“Until we require all lawyers to pass minimal tests as to competency, we’re wasting our time, we’re wasting the taxpayers money, and we’re not doing much to protect the public. You can’t force this on people unless you force it on everybody.”

Working group chairwoman Pearl G. Mann, a Fullerton elder-law attorney, said one of the proposals under discussion is publishing a list on the State Bar website of mentoring opportunities for senior lawyers and a yearly newsletter directed to lawyers over 50. The working group will report its findings to the Board of Trustees at its July 19 meeting.

Susan McRae is a Los Angeles-based freelance writer who has covered the California legal community for more than 20 years.