Doing Nothing Is Not an Option

It has been estimated that a staggering 1.4 million Canadians will have Alzheimer’s disease and other dementias by 2031. Lawyers of course are not immune to the effects of aging. Whether presented with Alzheimer’s, mild cognitive impairment or dementia, law firm managers need to be alert to the changes that may occur as firm members age.

Diminishing cognitive ability is something that comes naturally with aging. Normal age-related cognitive decline means that each of us will, over time:

  • Rely more on prior knowledge in decision making and less on analytical thinking;
  • Learn more slowly and need more repetition to acquire new knowledge;
  • Experience memory changes, such that, for example, recall of words is more challenging without visual cues; and
  • Process new information at a slower speed.

Mild cognitive impairment is different. It may come on suddenly, after an acute event or accident or other trauma. But more typically, there is a gradual onset that may be set into motion as a result of medication use, substance abuse, depression or stress or burnout. Some of the signs of cognitive impairment to watch for include:

  • Late payments and poor business decisions
  • Loss of skill (bad outcomes, legal errors)
  • Office staff concerns or turnover
  • Lawsuits or complaints to regulatory agencies
  • Dissatisfied clients
  • Professional boundary problems and poor judgment
  • Irritability, impatience, mood swings.

Those living with a person with declining mental capacity are most likely to notice signs of decreasing mental capacity first. But they are also most likely to seek to protect their family member from the potential effects of disclosing that decline, whether due to fear of loss of the ability to practice or to avoid “betrayal” or any perceived stigma attached to dementia.

For this reason, firms may want to put in place processes to create an accessible and safe avenue for concerns about a lawyer’s mental competence to be raised. This may be similar to processes used to raise issues related to addictions or any other competence concerns. These internal processes should provide a means for firm members, whether partners, associates and support staff, to safely raise concerns about a lawyer whose competence appears to be in question.

Of course, care is also required so as to protect the lawyer about whom concerns are raised, as well as the firm and its clients. Given that those suffering age-related cognitive impairment are most typically senior and respected members of a firm, every effort should be made to pursue these issues with due tact and concern.

At the same time, doing nothing is not an option when you notice that a colleague appears to be declining in competence. Questions that need to be asked and answered include:

  • What about the effect on the lawyer’s clients?
  • Is the lawyer’s ability to do her job impaired?
  • Can the lawyer still do any kind of legal work? Perhaps with assistance and support?

It is important to know that an individual’s expertise and judgment may be undiminished even though cognitive function is diminished or impaired. In some cases, providing functional support may suffice to allow the lawyer to continue at least in some capacity, although this will require careful assessment and monitoring.

Assumptions should never be made about cause for the behaviour. What appears to be a physiological issue related to the process of aging might just as well be attributable to a mental health or addictions issue. Ultimately, a medical referral will likely be required to obtain a diagnosis that will assist in determining the next steps for both the individual and the firm.

Your lawyer’s assistance program, offered through your local law society or bar association, is a good place to turn for support and resources to work through this time of transition for both the individual lawyer and the law firm.

(Based on an article of the same title, published in Canadian Lawyers Insurance Association’s Loss Prevention Bulletin Issue No. 58, Fall 2013.)

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