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This publication accompanies the audio program entitled “Grey Matters: Perspectives on Aging Lawyers and Cognitive Impairment” broadcast on August 21, 2013 (event code: CET3PAL).


1. Presentation Slides

2. Grey Matters: Perspectives on Aging Lawyers and Cognitive Impairment
Scott R. Mote

3. ABA CoLAP Senior Lawyer Committee Working Paper on Cognitive Impairment and
Cognitive Decline

4. Additional Resources


Grey Matters: Perspectives on Aging Lawyers and Cognitive

Wednesday, August 21, 2013| 1:00 PM Eastern
Sponsored by the Commission on Lawyers’ Assistance Programs, Commission on Law and Aging, Commission on Disability Rights, Center for Professional Responsibility, Solo, Small Firm and General Practice Division, Tort Trial and Insurance Practice Section and the ABA Center for Professional Development

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Aging Attorneys
Doris C. Gundersen MD
Medical Director,
Colorado Physician Health Program

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1. Discuss implications of an aging population
2. Review aspects of normal aging
3. Discuss Mild Cognitive Impairment (MCI)
4. Identify warning signs of cognitive impairment
5. Discuss cognitive screening controversies
6. The Colorado Physician Health Program
Malpractice Risk Study – Brooks et al
7. Graceful transitions

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Aging Boomers

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Disincentives for Retirement
 Baby boomers face financial pressures and will
want/need to continue to work past traditional
retirement age
 In some professions this will be supported due to
• Generations X and Y prefer “balance”

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Setting the context: Healthcare

• Elderly patients are more complicated:
– Proportion of the population over 65 expected to grow rapidly over the next 15 yrs.;

– Increased use of medical services: 3 to 5 times the rate
of the middle aged
– GME funding deficits
– Physician shortages

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Normal Aging Risks for Impairment
• Sleep deprivation
Earlier wake time
Difficulty initiating sleep More night time awakenings Lighter sleep
More difficulty adjusting to shift changes
and jet lag
• Sensory Loss
• These are treatable conditions

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Normal Aging: Neuropsychological Changes

Decision making
Differences in how decision reached
More reliance on prior knowledge

Changes in Memory
Decreased episodic memory (specific events)
– recall worse than recognition
Slower pace of learning
Increased need for repetition
Decreased Speed Processing speed Reaction time Psychomotor speed
Fine motor skills/dexterity

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Safety Sensitive Employment
The underlying principle for fitness-for-duty
assessment is the protection of the public
-Health Profession
-Legal Profession
-Transportation Industry
-Other (i.e. nuclear power plant oper

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Impairment Definition

Unable to practice law with reasonable skill and safety to the public as a result of illness or injury
Illness is not synonymous with impairment!

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Sudden Onset Impairment

• Acute myocardial infarction

• Cerebral vascular accident

• Seizure

• Trauma – Emotional (grief/shock)

• Trauma – Physical

– Falls

– Motor vehicle accident

– Sporting accident

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Gradual Onset Impairment

• Mood/Anxiety Disorders

• Substance Use Disorders

• Obstructive Sleep Apnea

• Visual/Hearing Loss

• Polypharmacy

• Stress and Burnout

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Inside the Human Brain


• The brain has billions of neurons, each with an axon and many dendrites.

• To stay healthy, neurons must communicate with each other, carry out metabolism, and repair themselves.

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Slide 14

The Concept of Cognitive Reserve
-Refers to brain size
-Also synapse count
-The amount of damage that can be sustained before
reaching a threshold for clinical expression
(ex = slow growing tumor)
-The ability to use brain networks more efficiently
-The ability to employ alternative strategies in
response to task demand ( mental flexibility)

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The Concept of Cognitive Reserve
Physicians, Attorneys, Executives
-High IQ
-Lengthy and challenging education
-Premorbidly – high level of cognitive resources
-High level of verbal resources
-Good health habits (i.e. no tobacco)
Reserve allows compensation and masking of decline

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Different Reserve, Same Insult

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Neurodegenerative Disorders:
Gradual Onset Impairment

The affected individual, family
and colleagues may adapt due to
the insidious nature of changes

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Cognitive Domains

Sensorimotor Executive Functioning Intelligence (IQ) Attention/Concentration Language
Emotion Memory Visuospatial

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Mild Cognitive Impairment

• Dementia (abnormalities of at least two cognitive domains)
• Mild cognitive impairment-MCI (abnormalities of only one cognitive domain)

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Mild Cognitive Impairment
• Not normal, but not dementia
• Executive function deficits often
precede memory lapses or loss
• 12% convert to dementia annually
• 80% convert to dementia at 6 years
• ADLs largely preserved

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Potential Clues to Cognitive Deficits
• Late payments/poor business decisions
• Loss of skill (bad outcomes, legal errors)
• A failure to remediate skills following competency assessment
• Office staff concerns (or turnover)
• Lawsuits or complaints to regulatory agencies
• Dissatisfied clients
• Professional boundary problems (judgment)
• Irritability, impatience, mood swings
• Family, institutions, colleagues may collude with
impaired one because of:
• -Power differential
• -Fear of loss (practice, license, prestige)
• -Hesitancy to “betray” colleague
• -Social Stigma of dementia/other illness

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Commercial pilots must undergo health
screening at 40 and must retire at age 65

Air traffic controllers must retire at age

Should health screening be included in maintenance of competency requirements for physicians and attorneys?

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Supreme Court Justices Are Seated for Life

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Age and Disciplinary Action

• Length of time since graduation predicts greater risk of disciplinary action among physicians:
• There is a positive association between aging and disciplinary action but unable to ascertain whether this is related to :
– Greater number of patients seen over time
– Risk due to more complex patients (an aging practice)
– Cognitive deficits
– Other

Morris and Wickersham, JAMA

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JW Ashford, MD PhD, 2003

Cognitive Screening: The Challenges

• There is no single universally accepted screen that satisfies all the needs in the detection of cognitive impairment
• Many screening tests but few have been well validated
• Many have low accuracy for mild levels of impairment
• Many have demographic biases in score distribution
• Many over emphasize memory dysfunction
• Cannot be used to create a differential diagnoses because they are designed to identify specific subtypes of dementia

www.americanbar.org | l

Subtypes of Dementia Patterns of Impairment

• Alzheimer’s: memory deficits before other deficits
• Vascular : executive functioning problems precede
memory deficits
• Frontotemporal: behavioral problems (disinhibition)
• Lewy Body: attention deficits

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Evaluating the Professional
• Important to utilize s
instruments that will adequately challenge
cognitive resources
• Emphasis on:
Ability to problem solve
Decision making
Executive Functioning

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Clock Drawing Test

• CDT of 4 approximates a MMSE of near 30 or mild cognitive impairment
• CDT of 2 puts patient in the moderate impairment of MMSE scores of high teens.
• CDT of 1 reflects moderate-to-severe scores on
MMSE (low teens)
• Abnormal results suggests need for further

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Clock Draw Examples:

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Rule Out Reversible Causes of
Cognitive Impairment
• CNS Infections
• Hypothyroidism
• Vitamin deficiencies (Vit D, B12 and Folate)
• Tumor
• Polypharmacy
• Psychiatric Illness
• Substance Abuse/Dependence
• Sleep Disorders…………….to name a few!

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When to Pursue
Neuropsychological Testing?
Any age if clinical/occupational signs support
Age 60?
Low yield and expensive
What to do with incidental findings?
Age 70-75?
A good quality screen
Formal neuropsychiatric testing if screen is +

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JW Ashford, MD PhD, 2003

r | l

The Neuropsychiatric Exam What does it provide?

• A precise quantification of various cognitive functions
• A profile of deficits and extent

• A profile of strengths useful for rehabilitation/compensation
• A baseline for future assessments (ex. = MS)

• Determination of functional status (i.d. areas needing accommodation)
• Assistance in assessing competency for legal issues

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Interventions: Preserving Dignity
• Talk with trusted colleagues about your concerns

• Arrange a meeting with the professional identified as having a potential problem
– Best to have a power differential
– Include trusted friend/colleague of (potentially) impaired

• Utilize professional peer assistance programs
– Most knowledgeable about expert evaluators
– Physician Health Programs can also be a resource
– Preserve confidentiality/boundaries

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Compensatory Measures

• Avoid solo practice

• Work fewer hours

• Increase staff assistance

• Monitoring (Lawyers Assistance Programs)

• Reorganization of a practice
– Utilize knowledge/experience of the professional
– Encourage continued professional involvement
– Maintain respect for the professional

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Young Attorneys:

•Fluid intelligence/reasoning: the capacity to think logically and solve problems in novel situations, independent of acquired knowledge.
– necessary for all logical problem solving, especially scientific, mathematical and technical problem solving
– Sensitive to age related changes
• analytic/effortful processing

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Older Attorneys

•Crystallized intelligence: knowledge and skills that are accumulated over a lifetime, for example vocabulary.
– Less affected by age and disease
• Involves less effortful tasks
• Acquired through education and life experience
• Nonanalytic/automatic/implicit mental processes

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Mixed Age Practices are Ideal

• Younger

– Tolerate sleep deprivation

– Rely more on analytical reasoning
• (less experience)
• May move too slowly w/ excessive analysis

• Older

– The “sages”
– Rely more on decades of experience, and historical memory

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Colorado Medical Practice Act

Historically, merely having an illness was grounds for discipline

Discipline risk if illness not treated
Colorado Physician Health Program is a safe harbor

Self referrals exceed mandatory referrals

Early interventions protect physician and the public

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Types and Sources of New Referrals

• Voluntary (62%)

• Mandatory (38%)


© Colorado Physician Health Program 2013 All Rights Reserved
Please do not reproduce or use without written permission of CPHP

Discipline does not make a sick professional well

• Peer assistance programs

– Fewer professionals go “underground”

– Confidential assessments by (true experts)

– More self referrals

– Earlier intervention

– Less harm to the public
• Unlike a complaint driven investigation

– Leverage for assuring compliance (reporting)

– Advocacy for the professional’s health
• Preserve dignity, reduce shame/fear, protect public without disciplinary measures

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Malpractice Risk Study Results

• 818 physicians available for analysis
– COPIC and CPHP matched physicians (blinded)

• Retrospective examination of administrative data

• 20% reduction in malpractice risk in physicians who had been monitored for a health problem (p < 0.01) • This is likely to be true for attorneys who utilize Lawyers Assistance Programs www.americanbar.org | www.abacle.org Graceful Exits……. The Transition to Retirement • Ideally, a gradual, stepwise process before impairment develops • It usually takes a few years to do this • Ways to Accomplish This: – Begin to integrate more hobbies – Reduce workload – Consultation with: • Other retired professionals • Executive Coaches/therapist • Financial experts www.americanbar.org | www.abacle.org Graceful Exits……. Suggestions for Coping with Change • Find interests outside of profession – Clarify personal values – Activities that make the professional feel valued – Activities that have meaning • Reestablish humane and altruistic connections to society – Physical Activity – Creativity • Enhance social support – Church/Synagogue – Family/Friends – Volunteer work www.americanbar.org | www.abacle.org Quiz Question: What activity has shown the greatest benefit in reduction of risk for Alzheimer’s disease and other dementias? www.americanbar.org | www.abacle.org Ballroom Dancing 76% relative risk reduction from frequent participation in ballroom dancing by 130 avid dancers was the highest score of all hobbies and physical activities measured. -Verghese J et al. NEJM 348;25 Graceful Exits……. Health may actually improve during retirement -Better nutrition -More exercise -Less stress -Greater balance -Spousal relationships tend to improve www.americanbar.org | www.abacle.org Concluding Remarks • Competent practice rather than age should be the guiding principle in any final practice determinations • We need absolute rather than age-adjusted performance standards to be applied to all professionals in safety sensitive positions • Complaint driven evaluations identify professionals who are (most likely) already impaired • Earlier intervention can occur with the assistance of LAPs • Earlier intervention is more likely to occur with confidentiality • The critical role of cognitive health research www.americanbar.org | www.abacle.org Grey Matters: Perspectives on Aging Lawyers & Cognitive Impairment Tracy L. Kepler Senior Counsel Illinois Attorney Registration & Disciplinary Commission (ARDC) www.americanbar.org | www.abacle.org Overview • Demographics • Model Rules Implicated • Ideas for the Future www.americanbar.org | www.abacle.org Aging Lawyer Population • 2012 – ABA Market Research Department Lawyer Demographics survey: – 2005 - 34% of practicing lawyers were age 55 or over compared to 25% in 1980 – 2005 - median age of practicing lawyer was 49 compared to 39 in 1980 www.americanbar.org | www.abacle.org Aging Lawyer Population • By Jurisdiction – “Senior Tsunami” – Michigan – 2010 • 53.4% of the active members of the State Bar were born before 1961, 11.1% born before 1944 – Washington – 2012 • 71% are 50 or older, 21% are 61 or above – Florida – 2012 • 33% are 55 or older, 21% are 60 or older and 11% are 65 and older – California – 2013 • 244,016 attorneys – 20% of lawyers are 65 or older, 22% are 55-64 www.americanbar.org | www.abacle.org Rules Implication • 1.1 – Competence – Legal Knowledge & Skill – Thoroughness & Preparation – Maintaining Competence • 1.3 & 1.4 – Diligence & Communication • 1.6 – Confidentiality of Information – Communication with EAP and LAP Programs www.americanbar.org | www.abacle.org Rules Implication • 1.16 – Declining or Terminating Representation • 1.17 – Sale of a Law Practice • 5.1 – Responsibilities of Partners, Managers, & Supervisory Lawyers • 8.3 – Reporting Professional Misconduct www.americanbar.org | www.abacle.org Ideas for the Future • Traditional Discipline Models – Permanent Retirement Status – Transfer to Disability Inactive Status – Motions to Compel Evaluation – Receiverships • Alternatives to Discipline Models – Inactive, Retired and Emeritus Status – Succession Planning – Education/Outreach www.americanbar.org | www.abacle.org Tracy L. Kepler Senior Counsel Illinois Attorney Registration & Disciplinary Commission (ARDC) 130 E. Randolph Drive, Suite 1500 Chicago, IL 60601 800.826.8625 | 312.565.2600 | Fax: 312.565.2320 tkepler@iardc.org| www.iardc.org www.americanbar.org | www.abacle.org GREY MATTERS: PERSPECTIVES ON AGING LAWYERS AND COGNITIVE IMPAIRMENT Todd Scott Vice President of Risk Management Minnesota Lawyers Mutual Insurance Company Minneapolis, MN www.americanbar.org | www.abacle.org Malpractice Claims Source: ABA Standing Committee on Lawyers’ Professional Liability 2012 www.americanbar.org | www.abacle.org Malpractice Claims Source: ABA Standing Committee on Lawyers’ Professional Liability 2012 www.americanbar.org | www.abacle.org Malpractice Claims Succession Planning: • Your untimely passing would create a firm crises so plan for it. • Small firm practitioners and solos – have a reciprocal agreement to look after client matters in the event of your death or incapacitation. • Memorialize the arrangement and document details of the plan including the scope of the assisting attorney’s duties. www.americanbar.org | www.abacle.org GREY MATTERS: PERSPECTIVES ON AGING LAWYERS AND COGNITIVE IMPAIRMENT SCOTT R. MOTE, ESQ. EXECUTIVE DIRECTOR OHIO LAWYERS ASSISTANCE PROGRAM, INC. www.americanbar.org | www.abacle.org Q&A?? www.americanbar.org | www.abacle.org 2 GREY MATTERS: PERSPECTIVES ON AGING LAWYERS AND COGNITIVE IMPAIRMENT SCOTT R. MOTE, ESQ. EXECUTIVE DIRECTOR OHIO LAWYERS ASSISTANCE PROGRAM, INC. AMERICAN BAR ASSOCIATION August 21, 2013 Scott R. Mote, Esq. Executive Director Ohio Lawyers Assistance Program, Inc. 1650 Lake Shore Drive, Ste. 375 Columbus, Ohio 43215-4991 800-348-4343 smote@ohiolap.org DEALING WITH AGING LAWYERS For over 20 years, OLAP has assisted Ohio’s lawyers, judges and law students obtain appropriate treatment for substance abuse, chemical dependency, and mental health issues. Over the past 10 years there has been a dramatic increase in the number of professionals and students who have no drug and/or alcohol problems, but suffer from various mental health issues. OLAP receives referrals from a variety of sources, including colleagues, co-workers, opposing counsel, ethics/certified grievance committees, Disciplinary Counsel, defense counsel in disciplinary cases, admissions committees, counsel in admissions cases, judges, magistrates, court administrators, law schools, family and friends. Over the last few years OLAP has received many referrals regarding elderly attorneys and their diminished capacity to practice law. We know that these referrals are only going to increase as the years continue. The "baby boomer" generation is now into its 60's, and more lawyers continue to practice longer. In 2006, 37.3 million Americans were 65 and older; this equates to one in every 8 Americans. In 2030 this number will increase to approximately 71.5 million older persons, which is more than two times the numbers in 2000.(1) It is estimated that a quarter of a million America's practicing lawyers are already over the age of 55. This number is expected to triple over the next two decades.(2) People in the United States are living longer than ever before. The average life expectancy is now approaching 80 years. There has been a change in the way our health care system manages its patients, and the focus has shifted to making our later years healthier and more productive. We are living longer and healthier lives, and people are postponing retirement for emotional and financial reasons.(3) The legal profession is going to have attorneys practicing well beyond previously expected retirement age of 65-70. Most large and midsized firms have policies in place on how to accommodate their aging lawyers, with mandatory retirement requirements in place. But this generally is not the case for smaller firms, office-sharing arrangements, and solo practitioners, who make up the majority of Ohio's lawyers. Medical Implications of Aging Regardless of the area of practice, the aging attorney inevitably will struggle with health issues as they age. For many, the aging process is what will impact their ability to continue to practice law in the same manner in which they have grown accustomed over the years. Each person is unique, and there is no stereotype as to how we age. Not all age-related changes are harmful or negative. Scientists suggest that aging is likely a combination of many factors. Genetics, lifestyle and disease all affect the rate at which we age. Normal aging brings about the following: • Eyesight - loss of peripheral vision and decreased ability to judge depth. Decreased clarity of colors (for example, pastels and blues). • Hearing - loss of hearing acuity, especially sounds at the higher end of the spectrum. Also, decreasing ability to distinguish sounds when there is background noise. • Taste - decreased taste buds and saliva. • Touch and Smell - decreased sensitivity to touch and ability to smell. • Arteries - stiffen with age. Additionally, fatty deposits build up in your blood vessels over time, eventually causing arteriosclerosis (hardening of the arteries). • Bladder - increased frequency in urination. • Body Fat - increases until middle age, stabilizes until later in life, then decreases. Distribution of fat shifts - moving from just beneath the skin to surround deeper organs. • Bones - somewhere around age 35, bones lose minerals faster than they are replaced. • Brain - loses some of the structures that connect nerve cells, and the function of the cells themselves is diminished. "Senior moments" increase. • Heart - is a muscle that thickens with age. Maximum pumping rate and the body's ability to extract oxygen from the blood both diminish with age. • Kidneys - shrink and become less efficient. • Lungs - somewhere around age 20, lung tissue begins to lose its elasticity, and rib cage muscles shrink progressively. Maximum breathing capacity diminishes with each decade of life. • Metabolism - medicines and alcohol are not processed as quickly. Prescription medication requires adjustment. Reflexes are also slowed while driving, therefore an individual might want to lengthen the distance between him and the car in front and drive more cautiously. • Muscles - muscle mass decline, especially with lack of exercise. • Skin - nails grow more slowly. Skin is more dry and wrinkled. It also heals more slowly. • Sexual Health - Women go through menopause, vaginal lubrication decreases and sexual tissues atrophy. In men, sperm production decreases and the prostate enlarges. Hormone levels decrease. (4) Cognitive Impairment Symptoms/signs of cognitive impairment include: missed deadlines, repeatedly making the same mistakes and not remembering the first one, confusion, forgetfulness, disheveled appearance, loss of skill set, irritability, dissatisfied clients, disciplinary problems, family member's concerns, and office staff upset/angry, and court concerns. Often times family members or other professionals have noticed a significant decline in one's cognitive abilities. These cognitive changes are referred to as cognitive impairment. Cognitive impairment occurs when there is a problem with perceiving, thinking and remembering. Physical illness, mental health issues, alcohol and drug interactions are all possible causes of cognitive impairment. Once cognitive impairment is identified, it is essential for the person to receive a full medical evaluation to determine the cause of the impairment. Dementia, Alzheimer's Disease and Delirium are all possible medical-related issues that need to be ruled out. While there are many qualifiers and sub-types for each of the disorders listed above it is important to have a working definition of the following disorders. Dementia The development of multiple cognitive deficits manifested by both (1) memory impairment (impaired ability to learn new information or to recall previously learned information), (2) one (or more) of the following cognitive disturbances: a) aphasia (language disturbance) b) apaxia (impaired ability to carry out motor activities despite intact motor function) c) agnosia (failure to recognize or identify objects despite intact sensory function) d) disturbance in executive functioning (i.e., planning, organizing, sequencing, abstracting) ** The cognitive deficits listed above each cause significant impairment in social or occupational functioning, and represent a significant decline from a previous level of functioning. There will be a gradual onset and continuing decline. Also, these symptoms are not due to any other central nervous system conditions that cause deficits in memory and cognition. Alzheimer's Disease Alzheimer's Disease a brain disease that causes problems with memory, thinking and behavior. It is the most common cause of dementia. It is not a normal part of the aging process, and it is not the only cause of memory loss. Alzheimer's disease worsens over time and there is no cure. The treatments available try to slow progression and lesson the symptoms. (Alzheimer's Association). Delirium Delirium is a disturbance of consciousness (i.e. reduced clarity of awareness of the environment), with reduced ability to focus, sustain, or shift attention. There is also a change in cognition (such as memory deficits, disorientation, language disturbance) or the development of perceptual disturbance that is not better accounted for by a preexisting, established, or evolving dementia. The disturbance develops over a short period of time (usually hours to days) and tends to fluctuate during the course of the day. Lastly, upon evaluation this disturbance is caused by the direct physiological consequences of a general medical condition. (5) Mental Health Implications As a person ages there are several losses associated with getting older. While many aging people go through the later stages of life successfully and embrace their new phase of life, some people experience mental health issues at this time. There are many mental health issues one may face as they age, but depression can be the most significant and under diagnosed. While depression and suicide rates among the elderly are significant, depression is not a normal part of the aging process. Suicide is more common among older adults than any other age group, accounting for 16 to 25 percent of the suicides in the U.S. (6). Depression is one of the issues most commonly associated with suicide in older adults. However, it is under-recognized and under-treated. Studies have shown that up to 75% of older adults who kill themselves visited a physician within a month before their death. The risk of suicide increases with other illnesses, and when the ability to function become limited. (7) Over the last several years, OLAP has assisted aging attorneys navigate the difficult process of changing how they practice, or retiring, from the practice of law. The point at which an attorney needs to make changes or retire, is dependent upon how much decline they are experiencing. Each case must be assessed individually. Regardless of the issues facing the attorney, it is essential those involved with the aging attorney create a positive environment and good rapport. It is essential to uphold the dignity of the individual. We must respect how much one's self worth, self esteem, and self confidence are all connected to their identity of being a lawyer. This difficult life transition can be made more tolerable if we allow the aging lawyer as much control and input as possible during this process. Relevant Ohio Supreme Court Rules Prof. Cond. R. 8.3 Reporting Professional Misconduct (ABA MRPC 8.3) Judicial Cond. R. 2.14 Disability and Impairment (ABA CJD 2.14) See also: ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 03-429, "Obligations with Respect to Mentally Impaired Lawyer in the Firm," June 11, 2003. References 1. Administration on Aging (www.aoa.gov) 2. American Geriatric Society (www.americangeriatrics.org) 3. The Complete Lawyer (Volume 3, Number 4) "No Senior Discount at the Ethics Bar", David Giacalone 4. The Area on Aging of Pasco-Pinellas, Inc., Normal Signs of Aging [online]. [Accessed March 11, 2011]. Available from URL: www.agingcarefl.org. 5. American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Health Disorders (Revised 4th ed.). Washington, DC: Author. 6. Brody, J.E. (2007, November 27). A Common Casualty of Old Age: The Will to Live. The New York Times. Retrieved from http:www.nytimes. com 7. National Institute of Mental Health (NIMH). Older Adults: Depression and Suicide Facts (Fact Sheet) [online]. (2007) [accessed March 11, 2011]. Available from URL: www.nimh.nih.gov/health/publications. RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules of Professional Conduct that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary authority empowered to investigate or act upon such a violation. (b) A lawyer who possesses unprivileged knowledge that a judge has committed a violation of the Ohio Rules of Professional Conduct or applicable rules of judicial conduct shall inform the appropriate authority. (c) Any information obtained by a member of a committee or subcommittee of a bar association, or by a member, employee, or agent of a nonprofit corporation established by a bar association, designed to assist lawyers with substance abuse or mental health problems, provided the information was obtained while the member, employee, or agent was performing duties as a member, employee, or agent of the committee, subcommittee, or nonprofit corporation, shall be privileged for all purposes under this rule. Comment [1] Self-regulation of the legal profession requires that a member of the profession initiate disciplinary investigation when the lawyer knows of a violation of the Ohio Rules of Professional Conduct involving that lawyer or another lawyer. A lawyer has a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. [2] A report about misconduct is not required where it would involve the disclosure of privileged information. However, a lawyer should encourage a client to consent to disclosure where it would not substantially prejudice the client’s interests. [3] [RESERVED] [4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship. See Rule 1.6. [5] Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer’s participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of divisions (a) and (b) of this rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.185 Comparison to former Ohio Code of Professional Responsibility Rule 8.3 is comparable to DR 1-103 but differs in two respects. First, Rule 8.3 does not contain the strict reporting requirement of DR 1-103. DR 1-103 requires a lawyer to report all misconduct of which the lawyer has unprivileged knowledge. Rule 8.3 requires a lawyer to report misconduct only when the lawyer possesses unprivileged knowledge that raises a question as to any lawyer’s honesty, trustworthiness, or fitness in other respects. Second, Rule 8.3 requires a lawyer to self-report. Comparison to ABA Model Rules of Professional Conduct Rule 8.3 is revised to comport more closely to DR 1-103. Division (a) is rewritten to require the self- reporting of disciplinary violations. In addition, the provisions of divisions (a) and (b) are broadened to require reporting of (1) any violation by a lawyer that raises a question regarding the lawyer’s honesty, trustworthiness, or fitness, and (2) any ethical violation by a judge. In both provisions, language is included to limit the reporting requirement to circumstances where a lawyer’s knowledge of a reportable violation is unprivileged. Division (c), which deals with confidentiality of information regarding lawyers and judges participating in lawyers’ assistance programs, has been strengthened to reflect Ohio’s position that such information is not only confidential, but “shall be privileged for all purposes” under DR 1- 103(C). The substance of DR 1-103(C) has been inserted in place of Model Rule 8.3(c). In light of the substantive changes made in divisions (a) and (b), Comment [3] is no longer applicable and is stricken. Further, due to the substantive changes made to confidentiality of information regarding lawyers and judges participating in lawyers’ assistance programs, the last sentence in Comment [5] has been stricken. RULE 2.14 Disability and Impairment (A) A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program. (B) Any information obtained by a member or agent of a committee or subcommittee of a bar or judicial association or by a member, employee, or agent of a nonprofit corporation established by a bar association, designed to assist lawyers and judges with substance abuse or mental health problems, shall be privileged for all purposes under this rule, provided the information was obtained while the member, employee, or agent was performing duties as a member, employee, or agent of the committee, subcommittee, or nonprofit corporation. Comment [1] “Appropriate action” means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include, but is not limited to, speaking directly to the impaired person and notifying a partner, a colleague, or an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program. [2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge’s responsibility under this rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge’s attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 2.15. Comparison to Ohio Code of Judicial Conduct There is no Ohio Canon comparable to Rule 2.14(A). Rule 2.14(B) corresponds to Ohio Canon 3(D)(4). Comparison to ABA Model Code of Judicial Conduct Model Rule 2.14 is modified to add division (B) that is taken from Ohio Canon 3(D)(4). 3 ABA CoLAP Senior Lawyer Committee Working Paper on Cognitive Impairment and Cognitive Decline Introduction All of our brains go through changes as a normal part of aging. What changes the least are our powers of recognition – “I know it when I see it.” What may actually get better – at least up to a point ‐‐ is our vocabulary, our abstract reasoning (the ability to see concepts and relationships), our emotional stability and that elusive thing called “wisdom.” Inevitably, there are important cognitive functions that do, to varying degrees, erode over time. Our general cognitive processing (especially of new or novel things) slows; long‐term retrieval of information takes longer; learning new information is more challenging; multi‐ tasking is significantly affected (although no one does this as well as they think they do!); and our spatial memory deteriorates. Cognitive impairment and predictable cognitive decline is not synonymous with a mental illness. None of these things should significantly interfere with our ability to “function normally.” And, in spite of what was once thought, as brain cells die, new ones develop – albeit at a slower pace. I. General Observations of Cognitive Functioning In Adulthood Declines in both motor and mental speed of processing constitute the greatest change in function associated with aging. Age‐related declines in working memory place limits on other complex cognitive skills, including learning and recall of new information. As we age, the physical size of our brain cells begin to shrink. Connections between neurons (synapses) begin to function more poorly and eventually die; and fewer neurotransmitters (chemical messengers) are produced. • In our twenties and thirties, our cognitive functioning is arguably at its peak, although there is evidence of the beginning of neuronal shrinking by the mid 20’s. • As early as our 30’s, a small amount of brain volume has been lost. Although there is no apparent loss of cognition in any broad sense, sophisticated testing can detect small declines. • In our forties, our loss of brain volume continues, and may begin to accelerate. Most will notice the slowing of mental processing; and most will note that short‐term memory tasks are more challenging. • In our fifties, an accelerated loss of brain volume begins. Changes in memory and other cognitions become more noticeable. These changes may involve processing speed, multi‐tasking, attention to detail, visuospatial processing and the ability to place an event in time and place. • In our sixties, no surprise, our brain volume continues to shrink. The hippocampus and the amygdala are particularly affected, and these are the parts of the brain that are integral in the integration and formation of short‐term memory. Other changes perhaps first noticed in the fifties may become more pronounced. Processing speed slows further; it takes us longer to learn new information or master complex mental tasks; it becomes more difficult to maintain concentration and tune‐out distractions; “senior moments” become more common. • In our seventies and beyond, people vary widely in their cognitive abilities. Many remain sharp until a very advanced age, while others begin to show the wear and tear of life and diseases. II. Signs and Symptoms of Cognitive Decline Dementia: Dementia isn’t a specific disease. It is used as a general term to identify or label a decline in mental ability that is severe enough to interfere in daily functioning. At least two of the following core mental functions must be significantly impaired for an individual’s cognitive decline to be labeled dementia: • Memory • Communication and language • Ability to focus and pay attention • Reasoning and judgment • Visual perception There are at least 70 causes of dementia, including brain tumors, head injuries, nutrition deficiencies, infections, drug reactions and thyroid related disorders. Some are reversible but many are not. The most common causes of dementia are Alzheimer’s, Vascular Dementia, and Alcoholic Dementia and Lewy Body Dementia. Age, family history, genetics, lifestyle, diseases, and accidents are the most common risk factors for all type of dementias. The greatest known risk factor for Alzheimer’s is advancing age. The age at onset is typically after 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%. No single lifestyle factor has been conclusively shown to reduce the risk of Alzheimer’s. Evidence suggests, however, 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. III. Assessment of Cognitive Impairment and Cognitive Decline by LAP Professionals Most LAP professionals and lawyers generally do not have the requisite training and expertise to formally assess and definitively diagnose cognitive impairment or cognitive decline. Formal assessment and evaluation of cognitive impairment and cognitive decline would be referred to neuropsychologists, geropsychologists, neuropsychiatrists, geriatric psychiatrists and neurologists. LAP professionals and lawyers, however, need a checklist of the ‘red flags’ that serve to alert us of the possibility that a colleague’s cognitive functioning has dropped below the level that is required to practice law effectively. In 2005, the American Bar Association Commission on Law and Aging and the American Psychological Association published Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. The American Bar Association Commission on Lawyer Assistance Programs have adapted the Capacity Worksheet for Lawyers contained in this publication to serve as a worksheet and guide to LAP professionals called on to assess or assist a lawyer exhibiting signs of cognitive impairment or cognitive decline. Cognitive Impairment Worksheet for Lawyer Assistance Programs Attorney Name: Place of Interview: Date of Interview: Observational Signs & Symptoms: Behavioral Functioning at Work Observations Practice management • Deteriorating performance at work • Making mistakes on files / cases • Difficulties functioning without the help of a legal assistant /other lawyers • Committing obvious ethical violations • Failing to remain current re changes in law; over‐relying on experience • Exhibiting confusion re timelines, deadlines, conflicts, trust accounting Appearance / dress • Inappropriately dressed • Poor grooming/hygiene Interpersonal disinhibition • Making sexually inappropriate statements that are historically uncharacteristic for the lawyer • Engaging in uncharacteristically sexually inappropriate behavior • Disinhibition in other nonsexual behaviors Self awareness • Denial of any problem • Exhibits/expresses highly defensive beliefs • Feels others out “to get” him/her, organized against him/her Significant changes in characteristic routine at work Cognitive Functioning Observations Short‐term memory problems (reduced ability to manipulate information in ST memory) • Forgets conversations, events, details of cases • Repeats questions and requests for information frequently Executive functioning (slower and less accurate in shifting from one thought or action to another) • Trouble staying on task / topic • Trouble following through and getting things done in a reasonable time Lack of mental flexibility • Difficulty adjusting to changes • Difficulty understanding alternative or competing legal analysis, positions Language related problems • Comprehension problems • Problems with verbal expression o Difficulty finding the correct word to use o Circumstantiality (providing a lot of unnecessary details; taking a long time to get to the point) o Tangentiality ( getting distracted and never getting back to the point) Disorientation • Confused about date / time sensitive tasks • Missing deadlines for filing legal documents Attention / concentration (problems with dividing attention, filtering our noise and shifting attention) • Lapses in attention • Overly distractable Emotional functioning Observations • Emotional distress: • Emotional lability (rapidly changing swings in mood and emotional affect): Other Observations/Notes of Functional Behavior Mitigating/Qualifying Factors Affecting Observations Stress, Grief, Depression, Recent Events affecting stability of client: Medical Factors / medical conditions: PRELIMINARY CONCLUSIONS ABOUT COGNITIVE FUNCTIONING  Intact – No or very minimal evidence of diminished cognitive functioning:  Mild problems ‐ Some evidence of diminished cognitive functioning:  More than mild problems ‐ Substantial evidence of diminished cognitive functioning:  Severe problems – Lawyer lacks cognitive capacity to practice law: Adapted from the Capacity Worksheet for Lawyers, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, by the ABA Commission on Law and Aging and the American Psychological Association (2005). IV. Recommendations for Intervening on a Voluntary Basis with a Lawyer Exhibiting Cognitive Impairment/Decline A. Approaching the Impaired / Declining Lawyer 1. Partner with one or more individuals that the lawyer trusts, and that has/have firsthand observations of the lawyer’s behavior that is raising concerns about the lawyer’s continued competence to practice law. 2. Consider utilizing the Cognitive Impairment Worksheet to gather and organize concerns regarding the impaired/declining lawyer. 3. Have a non‐confrontational meeting with lawyer and the concerned individual/s; actively avoid confrontation. 4. Starters / icebreakers • I am concerned about you because… • We have worked together a long time. So I hope you won’t think I’m interfering when I tell you I am worried about you… • I’ve noticed you haven’t been yourself lately, and am concerned about how you are doing….. 5. Get the lawyer to talk; listen, do not lecture. 6. While listening, add responsive and reflective comments. 7. Express concern with gentleness and respect. 8. Share firsthand observations of the lawyer’s objective behavior that is raising questions or causing concerns. 9. Review the lawyer’s good qualities, achievements and positive memories. 10. Approach as a respectful and concerned colleague, not an authority figure. 11. Act with kindness, dignity and privacy, not in crisis mode. 12. If the lawyer is not persuaded that his/her level of professional functioning has declined or is impaired, suggest assessment by a specific professional (in most instances, a neuropsychologist) and have contact information ready. 13. Offer assistance and make recommendations for a plan that provides oversight (such as a buddy system or part‐time practice with co‐counsel). 14. Remember that this is a process, not a onetime event. B. Do’s and Don’ts 1. Do • Be direct, specific, and identify the problem • Speak from personal observations and experience; state you feelings • Report what you actually see • Be respectful and treat the lawyer with dignity • Act in a non‐judgmental, non‐labeling, non‐accusatory manner • Offer to call the lawyer’s doctor with observations • Refer for evaluation, have resources at hand • Suggest alternative; inactive status, disability leave • Suggest the potential consequences for inaction: malpractice or disciplinary complaints 2. Don’ts • Ignore and do nothing • Include family, unless requested • Insist or threaten if lawyer directs you to back off; attempt to discuss again at a later date. Adapted from the Texas Lawyer Assistance Program’s The Senior Lawyer In Decline: Transitions With Dignity – ABC’s of helping the senior lawyer in need 4 http://nobc.roundtablelive.org/Resources/Documents/NOBC-APRL-1.pdf http://www.oaap.org/2011/documents/insight/Brakes%20on%20Age%20Rel%20Cog%20Decline%20De c%202012%20InSight.pdf