Graceful Exits: Identifying Challenges Facing Aging Attorneys and Managing Ethical Risks [Panel Discussion]

AMY LEVINE: 

Okay, I think we can get started. So, I’ll hand this over to Stacey Best, the executive director of Lawyers Concerned for Lawyers.  

 

STACEY A. L. BEST:   

All right, thank you very much. Good afternoon. Thank you for joining us for our second in a series of three, Graceful Exits: Identifying Challenges Facing Aging Lawyers & Managing Ethical Risk. We had the first part of the series, which was presented by Dr. Tracey Meyers. And after brief introductions, I’ll ask Dr. Meyers to give us a brief summary of the highlights of the last presentation and an overview that will help frame the discussion for this afternoon. We are scheduled for an hour and 15 minutes. If you have questions during the presentation, please feel free to put them in the chat. I, myself, and the panelists will be monitoring those questions as well as our Director of Programs and Volunteers, Amy Levine. Our discussion today will focus on best practices and ethical and compassionate responses to the challenges that aging lawyers face as we also confront and deal with potential ethical risks. As I said, this is part two of a three-part series. I will introduce the third part at the end, but I’ll tell you now as a little preview, it’s about Reimagine, Refocus, and Retire: Next Steps in the Career of Senior Lawyers.  

Now I’ll introduce our panelists. First, I’ll begin with Erin Higgins, who is a managing partner and co-chair of the Professional Liabilities Group at the Boston-based litigation and transaction firm of Conn Kavanaugh. Her practice focuses on representing lawyers and other types of professionals against errors and omissions claims. Erin and I know each other from the BBO, where she was on the board there, as well as represented a number of respondents who were facing ethical liability bar discipline, so to speak. Our next – so welcome, Erin. Good to see you again.  

 

ERIN HIGGINS: 

Great to see you too. 

 

STACEY: 

Our next panelist is known to me as Arnie Rosenfeld. Arnie and I also go way back. Arnie is presently a solo practitioner in Boston, concentrating on representing lawyers in bar discipline cases and has been an expert witness in legal malpractice cases and an advisor to lawyers and law firms on legal ethics matters and the rules of professional conduct. I also know Arnie as a teacher and former bar counsel. And Arnie has also practiced in a variety of contexts, small, medium and large firms. And he was also the prior chief public defender. So, Arnie has held some big jobs and has moved around and is very knowledgeable in the field of professional ethics. Welcome Arnie, good to see you again. Saw you earlier this morning. 

And last, but certainly not least, Dr. Tracey Meyers. She is a licensed clinical psychologist in the state of Massachusetts, and I believe Connecticut. She is a certified yoga instructor and yoga therapist. She joined LCL Massachusetts in 2020 after working in the state of Connecticut in the Department of Mental Health and Addiction Services where she spent over 15 years working with inpatient and outpatient mental health settings. She has a background and an interest in neuropsychology. And as I said earlier, she presented the first part of the series. So welcome, Tracey, and again, welcome to all of our panelists. Tracey, as I said, we’re going to start with you. So, if you would please give us a brief overview of the last presentation and orient us to the issues of cognitive decline.    

 

DR. TRACEY MEYERS:

Sure. Thanks, Stacey. I’m happy to be here tonight with this panel. So, like Stacey said, I’m going to give you a brief overview. There is a more extensive hour-long topic on cognitive decline that I gave last month that you can find on our LCL website. So, this is just the highlights to sort of set the stage as we begin this topic tonight. So, I’m going to go quickly through the slides, and these also will be available on the website.  

So, lawyers need their cognitive functioning, right? They rely on their memory, language skills, ability to focus for long periods of time. So even subtle changes to one’s capacity to do those things can impact a lawyer’s job. It could lead to significant problems in the workplace, home life, et cetera. Unfortunately, as we know, lawyers are less likely to seek help for mental health and cognitive problems compared to other professionals. There’s lots of reasons beyond the scope of what we’re going to talk about today, but a few of them: fear, stigma, lack of resources, identity tied with being a lawyer, shame, embarrassment. And we also know lawyers struggle with healthy lifestyle choices and that places them at a higher risk for cognitive issues later in life, excessive drinking, smoking, hypertension, and a few other health-related issues that can exacerbate cognitive decline. 

So, what is cognitive decline? Cognition refers to thinking. So essentially cognitive decline is problems in thinking, particularly when most people use the word cognitive decline, they’re thinking about issues with memory and concentration. And it would be typically beyond what would be expected with normal aging. Cognitive decline is subjective, meaning that it’s something that we perceive in ourselves, right? Mild cognitive impairment is a diagnosis. So, there’s a little bit of a difference between the two. So, cognitive decline is when we feel we’re not functioning at the same level that we used to. Mild cognitive impairment must be diagnosed by someone like a neuropsychologist, physician, neurologist. And mild cognitive impairment can lead to Alzheimer’s disease – doesn’t always, but can be a precursor. So, mild cognitive impairment generally refers to an early stage of memory loss. The person’s still able to perform most activities. But as we said earlier, for lawyers, even a little bit of a shift or a little bit of a decline in some areas can have a profound effect. Someone with mild cognitive impairment can usually do their daily activities without interference. People with mild cognitive impairment can develop it for a number of reasons. And that doesn’t mean they are necessarily going to develop dementia. Some people do, some people don’t. The good news is that there are many reversible reasons why someone might develop mild cognitive decline. So, it’s really important to seek help, which we’ll circle back to. So essentially, if we think about cognitive impairment on a continuum, that can be very helpful – from completely unimpaired to mild cognitive impairment (which is just more subtle) to mild dementia all the way to severe dementia. And really some of the things that differentiate the mild from the severe are how much interference in activities of daily living is occurring. All right, and overall, just this little brief discussion, dementia is a syndrome. That’s why there’s this little umbrella. So, when we think of dementia, we often think of Alzheimer’s disease, which is generally the most common one. 60 to 80% of dementia cases are due to Alzheimer’s, but there are other conditions that can lead to dementia. There’s vascular dementia, Lewy body, which is often associated with Parkinson’s disease, frontotemporal dementias, and dementias due to traumatic brain injury.    

So, what causes cognitive decline? So unfortunately, we all are at risk because aging is the number one reason why we begin to have some cognitive decline. As individuals age, normal individuals, we all see some declines in processing speed, memory, and executive functioning. Chronic health issues can contribute to cognitive decline. Things like diabetes, hypertension, cardiovascular disease, traumatic brain injury – many people have undiagnosed traumatic brain injuries from football in high school to motorcycle accidents, et cetera. So, that also can place someone at risk for future cognitive decline, even if the brain injury was many years ago. Then there are other lifestyle issues, stress and burnout, sleep deprivation, sedentary lifestyle, poor diet, substance abuse, lack of mental stimulation, and isolation and loneliness, just to name a few. So, we see this combination of medical and lifestyle coming together.  

All right, so what are we talking about when we’re looking at cognitive decline and who should be concerned if you’re a lawyer? So, if we see someone who has increasing memory loss, they forget appointments, social engagements. They lose track in the middle of a sentence. They dodge questions about dates and events. They get tangential, kind of going off track when you’re asking a question. Failure to use technology or forgetting how to use technology. Missing deadlines or hearings. Missing meetings or calls. A decline in writing and oral abilities, word finding issues. Arriving to and from work at odd hours, forgetting people’s names. And then some more of, like, the behavioral, like appearing disheveled, irritability or changes in mood, falls or motor changes, rapid weight loss or gain, more impulsivity, difficulty with judgment, disinhibition, and increasingly feeling overwhelmed by making decisions, et cetera. So, I know that’s a real quick overview, but I wanted to set the stage for what we’re talking about today so that as we talk as a panel, we can think about some of the challenges that lawyers face when they are beginning to show signs of cognitive impairment. Thanks.    

 

STACEY:  

Thank you, Tracey. So, Erin, I’m going to come over to you first. You’ve heard some of the symptoms and ways that this can show up. I know you practice with a variety of, or represent in that practice, seeing a variety of professionals. What can you add to ways in which you might see this show up in your work, either as a managing partner, or as you’ve represented lawyers or doctors or whatever kind of professionals facing challenges? 

 

ERIN: 

So, thank you, Stacey and Tracey, thank you so much for that overview. So, where l’ve seen this come up or how l’ve seen this come up when working with my law firm clients, which is principally, most of my clients are law firms, sometimes bigger law firms, sometimes as small as two to three lawyer law firms. So, l’ve seen this come up in three different ways. 

So, the first one that we all think about and that we’re most concerned about, right, is when we start to hear from clients. So typically, this comes up with a managing partner of a firm starts getting contacted by clients, it sort of falls into that category of neglect where the clients are not hearing back from their lawyers. There’s not – voicemail messages and emails are not getting responses. They’re hearing that the lawyers are absent from the office for long periods of time. You might actually have some missed deadlines. Tracey mentioned, you know, missing appointments, missing calls, you know, just generally that the cases are being neglected. ‘I can’t get my lawyer to respond to me.’ So, that is the one I think we often think about as the one that we’re most concerned about is getting those kinds of complaints from clients directly.  

The second way l’ve seen this come up or come to the attention of the managing partners that I’ve worked with, and actually this is more common, that you start to hear concerns raised by other lawyers or staff at the firm. And often the first people who will notice something like this are staff because they’re working directly with lawyers, and they’re often called upon to fix whatever problems are surfacing. So, Tracey mentioned technology. That’s a very common one where all of a sudden, IT people are being asked to help somebody log in repeatedly or help someone do their time or help someone figure out something that is happening on their home system or their work system. So, that kind of repeated need for those kinds of services is one way this comes to people’s attention. Tracey also mentioned changes in personality. And again, that’s something that often comes to the attention of staff. You know, the person who’s experiencing cognitive decline becomes a little more, can become angry, can actually become almost a different person. And that sometimes comes to the attention of staff first. Staff is also, like, being asked to find missing documents and files and things that the lawyer cannot find anymore.  

And then the last way this has come to my attention much more rarely is, I have actually received, from Bar Counsel’s Office where they know I’ve represented a lawyer in the past and they’re hearing from clients that the lawyer cannot be contacted, that the lawyer is not responding. ‘Do you still represent this lawyer?’ Almost, ‘Can you help get in touch with them?’ So, there’s a couple different ways this comes to the attention of managing partners. So, you know, those are all things that I think managing partners need to watch out for.    

 

STACEY:  

And before I come over to you, Arnie, Erin, I’m going to ask a follow up, which is, can you give us some sort of quick tips – like, the neglecting hearings, you know, neglecting cases and getting calls from clients, IT, and changes in personality, it strikes me as once it’s come to the surface, there have probably been multiple instances that are bubbling around perhaps in office gossip or whatever. But what are some steps a managing partner might take to be alert to or to sort of try to get it before it rises to that level?  

 

ERIN: 

So, you know, a couple of things I like to tell people in terms of, you know, one of the ways to catch this, and we’re going to talk about some of this a little bit later, but obviously, for all the reasons you mentioned, Stacey, you’re hopefully getting ahead of this as much as you can. And where somebody is working in a firm, I think it does tend to bubble up to the surface, obviously much more quickly than if you’re working as a solo or two- or three-person firm. 

But one of the important things is to have some policies and practices in place that hopefully are going to surface these issues sooner rather than later. So, I think one of the most important things to have in place if you’re working at a firm, really of any size, is you want to have a reporting mechanism, a written policy that people are aware of and that they’re trained on so that folks know if they see, it’s sort of the see something, say something. And often, especially if it’s a staff member, they feel like it’s not something, and I know we’re going to talk later about, having difficult conversations, but that’s a hard thing for a staff member to bring to the actual lawyer. And so, you want to have a policy in place that identifies a person who you can go and talk to confidentially if you have concerns about someone. Because you may feel like maybe, ‘My concerns aren’t real, maybe they’re not valid, maybe I’m getting this all wrong.’ And if you have that kind of policy in place, the person’s going to be apt to come forward sooner, have that discussion and at least sort of unburden themselves of that issue. So, I think that’s a really important piece that every firm should have in place and should train people on so they know what to do if they start to have concerns.     

 

STACEY: 

Great, thanks. So, Arnie, you’ve been around the block maybe a time or two. And we’re talking like in a firm context, you may be more easily, you’ve got more eyes on you, you’ve got maybe more support to help a lawyer recognize when they may be beginning to feel challenges or face challenges. Both perhaps from a personal perspective in your own practice and in representing lawyers, what are your thoughts about a lawyer who may be independent, how they begin to see themselves and how they may begin to sort of monitor their own cognition, as Tracey put it, perhaps before diagnosis? 

 

ARNOLD (ARNIE) ROSENFELD:  

Yeah, I don’t think it’s very easy for people who are practicing alone, which I do now. I mean, l’ve been in a large firm, a medium-sized firm, a small firm, and now I’m by myself. I don’t have a secretary. I have someone who’s available if I need them. I don’t have any other associates or anything like that. So, it’s primarily an issue of self-evaluation. And I am very cognizant of that. I realize at my age, which I’m not going to reveal right now, but it’s up there, which is why l’m on this program, I presume. But you don’t do things as quickly or as attentively as you did before. People my age begin to forget that – I teach, as well as practice law. And when I’m preparing for my classes, which… I only, first of all, l’ve switched to only doing one semester a year instead of two or three, because I know that the demands are great for teaching, but I have to spend more time preparing my classes than I used to. I realized that, and I do spend them. I spend the extra time.  

 

STACEY: 

So, let me hop in here… Let me hop in here to ask, you’re kind of getting to, the next point, which is what are some of the things that you as a solo practitioner or again, clients you’ve represented, what are some of the things that a lawyer can do to change their practice to accommodate, sort of, their capacity?  

 

ARNIE:  

Well, whenever – right now, and I’ve been doing this for the past year really, when somebody calls me to ask me to represent them, I think very carefully about whether I want to do it or not, and whether I’m going to be able to do it as well as I should. So, I do a self-evaluation. I review what the case is all about. I think about how much time it’s going to take. And I have to be realistic about the fact that it’s going to take longer than it used to to prepare. So, I have to… accommodate that. I don’t, I think, for example, when I get hired as an expert, I have to work harder and for a longer period of time to prepare an expert report. If I’m preparing a case where I’m representing someone, the same thing is true. I have to spend – I have to think about how much work is going to have to go into each stage of the proceedings. And I have to take that into account when I’m doing it. And as a result of that, I have turned down a lot of cases that I think are going to – I’m not going to be able to handle as well as I should. I don’t think that’s an easy decision for people. There are a number of reasons. First of all, it can be a question; that’s the sole way to make money. Second, it’s, they don’t want to think about what the ramifications are of slowing down. It’s not necessarily that you can’t do it. It’s that you’re slowing down. It’s going to take you longer. I also talk to other lawyers about my cases. I have friends who practice in the same area. I’ll talk to them about the case. I have three children. They’re all adults. They’re all very successful. But I talk to them about when – I want them to tell me when they think that I’m not on top of my game. And I think it’s important. Somebody’s got to let you know when you’re having problems, if you’re going to rely on yourself to make that decision, you’re not always going to do it the right way. So, I think those are the things that has to be done.  

 

STACEY: 

Thank you. So, Erin. Coming back to you, you mentioned policies, having policies in place. And you’ve heard some of how Arnie has talked about it from the perspective of being on your own. Does any of that call to mind policies that either Conn Kavanaugh has or that you’ve recommended from the perspective of professional liability and malpractice? 

 

ERIN: 

Well, I would certainly join in what Arnie said that if you are working on your own, you have to do a lot of this evaluation yourself. And that is, I would imagine, pretty challenging to do. I think one of the things that when I’m counseling firms on these issues, in addition to recommending that they have this reporting policy in place, I think some of the other policy issues, policies and practices that firms could think about as a way to keep on top of the situation.  

First of all, I know we talked about this in our pre-call, it’s kind of the third rail, whether or not a firm should have a mandatory retirement age. There are firms in Boston, some of the larger firms that have mandatory retirement ages. And there are pros and cons to that approach, obviously, the pro being, it’s a clear dividing line and it doesn’t require a managing partner or an executive committee to make those kinds of one-off decisions. That’s the age and everybody knows the age is there. And the pro is that the attorney who’s approaching that age can plan for it, can start transitioning work, can make sure that the bench is in place to pick up their clients. There are very obvious cons to that approach. You know, Arnie is a great example of this. For many attorneys, like the second half of their 60s and can be a very productive time in a lawyer’s career. I mean, we all have a long runway to develop a practice and you finally get it going and you have this great practice, and you can have a very productive decade or more past when most firms have that retirement age. So, that’s a loss to a firm. And of course, some people when they’re faced with a retirement age, they pick up their practice and they move. So, there are pros and cons to that policy and that’s something firms can think about whether they want to have it or not. As we all know, there is a mandatory retirement age for superior court justices. So, it’s out there, something to talk about, to think about.  

I guess another policy that I think is a good thing for people to have. And this, again, tougher to translate to the solo practice. In a firm like Conn Kavanaugh, most of our cases, particularly our litigation cases, have two attorneys assigned to them, a partner and an associate, partner, junior partner. A piece of that is obviously workload related. Somebody’s on vacation. You just want to have a backup attorney. But that’s especially important, I think, when you have more senior lawyers working on cases. You have a second attorney assigned. That second attorney is a second contact point for clients, but also somebody who knows the case and can pick up things possibly going awry. And in the solo context, I know there’s some bar guidance on this too, that if you are running a solo practice, you want to have a backup attorney available if something were to happen to you. So maybe that’s a backup attorney who is somebody that you can check in with, as Arnie said, once in a while, just to kind of get an independent voice on how you’re doing. So, I think that policy of having a second attorney assigned to cases is important.  

The other thing I know we talked about in our pre-call is to the extent a firm has certain deadlines and policies in place on billing and time entry and the kind of things that can be early red flags that somebody is not being attentive to their cases. So, bills aren’t going out or the bills that are going out aren’t reflecting a lot of activity. If you’ve got some centralization of those functions and you can make sure that somebody is watching that, that can be another way to pick up some red flags. And then the last thing I’d say on that is, especially during the pandemic and now that we’ve all moved to at least some more remote work, having – people aren’t in the office all the time, right? It’s become much more acceptable for people to either be in the office one day a week or one day a month. So, I think it’s important when you have senior attorneys who are working mostly remotely to establish some touch points with them, whether that’s, you know, making sure they’re coming in for monthly attorney’s lunches or making sure that you’re doing some Zoom check-ins, whatever it is, there aren’t going to be the same opportunities to pick up these red flags if the person is not actually physically in the office. So, it’s another thing to sort of watch out for as, you know, firms have moved to either remote work or hybrid, some kind of a hybrid model, to have those periodic check-ins.    

 

STACEY: 

So, Tracey – thank you. Tracey, we’re hearing some structural things that lawyers can do, but there are human beings that have to put these structural policies into practice. And one of the things that Erin mentioned was that often admin folks or staff are the early detectors of things that are going missing or going awry. Talk to us a little bit about, you know, stresses and anxiety of bringing those things forward and maybe give some guidance to managing partners or lawyers who are responsible for how to create safe space to raise these concerns.     

 

TRACEY: 

Yeah, it is really tricky. And I think a lot of people hesitate because they know that ramifications could be this person could lose their license or they may have to retire. And so, I like the idea of non-confrontational discussions. The atmosphere of care, to actually check in with care, can be felt. And I think starting with that, ‘I care about you.’ Checking in and asking the person how they’re feeling. Non-confrontational is important because people will often push back defensively if you say, ‘Are you having any problems with your memory?’ You know, the person is less likely to say, ‘I am,’ right? So, we often encourage people to have open-ended questions like, ‘Yeah, tell me how things have been over the past few months.’ So, I like open-ended questions, non-confrontational, show of concern, frequent check-ins, you know, so just checking in once and then not going back, like Erin’s saying, having regular touch points so that there’s some rapport established.  

And then, in terms of suggestions, one of the most important things is to get the person seen by a medical provider. As I shared earlier in the slides, there are some treatable conditions, things that may be leading to some cognitive impairment like sleep apnea or something that could be resolved if the person saw their primary care. So, that may be the next step too to set – to really encourage someone to get a wellness checkup to see if there are things that might help them. So, I kind of like that open-ended frequent, touching base, show of concern, and then a suggestion to see a provider.  

 

STACEY: 

So let me ask maybe a sort of self-serving type of question. Have you had at LCL experience of helping a managing partner or supervising lawyer approach these conversations? And what have you learned from that kind of experience in addition to handing out the number of LCL, which is 617-482-9600.  

 

TRACEY: 

Yeah, I mean, and people, I mean, you know, managing partners and judges and other people that are coming into contact are really distressed. People are coming in really worried, frustrated, not knowing how to approach. So, sometimes it’s just helping that person, just to remind them that they’re doing the right thing by bringing it to the person’s attention. And, you know, the reactions can be all over the board from denial, anger, to ‘Absolutely I’m struggling,’ to a full disclosure. So, we don’t know how the person’s going to respond. I always think the initial conversation, that’s just the initial conversation. So, even if it’s met with resistance, anger, or a high emotional reactivity, it’s important to re-approach again. But when in doubt, you know, a trip to the primary physician is very different than saying, ‘You need to go to a neurologist right away. You clearly have dementia.’ You know, so I like the soft touch of getting them in to see a professional who can start to do the evaluation process. You don’t have to be the one sorting out whether they have mild cognitive impairment or dementia due to vascular issues. So, I think, like, relieving yourself of that duty and just making sure the person has the resources and helping them navigate that part. 

 

STACEY: 

So, this is Arnie and Erin. As lawyers, obviously, we have ethical obligations. So, while we may not be in the position of providing medical diagnosis, a level of stress can be thinking about those ethical obligations. And Arnie, I know you, from sort of the position of Bar Counsel, may have seen this as well. Talk to us about how to address those ethical obligations while having in mind Tracey’s advice of the soft touch. And Arnie, I know you may not have really been known for your soft touch, but maybe reach into your softer side and give us some advice.  

 

ARNIE: 

Well, I represent a number of people who are older and who have problems that have been brought to the attention of the Board of Bar Overseers. And some, frequently, it has to do with, they’re not able to give the same attention that they used to give to clients and to their own cases. So, l will talk to them about getting help. Number one, getting a lawyer to assist them, another lawyer, but a lot of people aren’t really in a position to do that. I will talk to them about cutting back on what they’re doing. I would talk to them about, you know, retiring. Not everybody wants to hear about those different things.  

When I was the Bar Counsel, I would have, there were a number of people from firms who brought in lawyers who they couldn’t convince to retire. And they would ask me to talk to them. And I didn’t want to put it in either/or, but it usually ended up that way, which was, look, ‘You have two different, you have two options. You can end up in front of the Board of Bar Overseers, which I don’t think you want to do because you’re going to end up either getting suspended or disbarred or even in a public reprimand. And that’s going to ruin your reputation. You’ve spent 40 or 50 years creating a reputation. Now you don’t want to ruin it on your way out.’ That, I think the term gracious exit is a proper term. And I would say, ‘So, your other option is to retire at this point, or to do, you know, take leave, work toward retirement rather than have your reputation ruined.’  

A lot of, one of the things, and I brought this up in our pre-meeting one time, that a lot of lawyers, they don’t – that’s their identity, is that they are a lawyer. When somebody asks them a question, ‘What do you do?’ It’s, ‘I’m a lawyer.’ And I frequently answer that question the same way. So, you don’t want to give that up easily, but you have to come to a realistic view of, ‘Can I still be a lawyer and be able to handle the responsibilities that come with that?’ The responsibilities are great when you’re representing a client or even another lawyer who’s your client. And I think you have to work, try to use as much of your ability to convince people to do something as you possibly can to make it so that it’s not an embarrassment for them to cut back. 

 

STACEY: 

Thanks. Erin, did you have anything to add? I do have, I want to shift to some other things that you were talking to us about in the pre-meeting, but do you have anything to add to what Arnie had to say?  

 

ERIN: 

Well, I think this is what you were going to ask about, Stacey, but when we talked about this in our pre-meeting, Arnie mentioned the issue of people identifying as being lawyers and that being a barrier to people deciding to retire. I think we had talked about some other potential barriers to retirement that firms can be thinking about and planning for.  

I think one of those is financial barriers to retirement. I mean, it’s kind of a joke among lawyers that sometimes when you retire is depending on how the stock market is doing. But there’s truth to that, that, you know, for some people, their decision to keep working is based on their perception that they cannot retire because they’re not in a financial position to retire. 

The other reasons that I have heard, for some lawyers, it’s this feeling that they don’t have any bench to leave their clients to. They feel like they have to keep working because they are deeply involved in matters for their clients and they don’t have anybody to hand those off to.  

And then, know, kind of closely related, I think to the barrier of identifying as a lawyer is just a concern that if I don’t go to the office every day, what am I going to do? And concerns about boredom and loneliness. And so I think… you know, as law firms and lawyers and friends of people who are struggling with this, there are certain things that we can try to plan for and, you know, happy to sort of give you my thoughts on those. 

 

STACEY:  

Well, that is where I was going. So, please, yes.  

 

ERIN: 

Yeah. So, I mean, in terms of financial barriers, I think, again, this in large part depends on how your firm is set up and the structure of your compensation system. But I think one thing firms should look for is making sure that their compensation system doesn’t punish people for transitioning work to younger lawyers because that’s what the firm should want lawyers to do. So, I think structuring your compensation to reward lawyers who are transitioning business to younger lawyers is a really important feature of getting people ready to retire and making them unafraid to give up their clients. And then, you know… again, this depends on the firm, but I know, you know, there are lots of different options out there for retirement plans outside of just a 401k plan. So, those are different ways that firms can try to prepare their lawyers for retirement.  

The second thing I think that’s important for firms to do in terms of planning for this is making sure you are building your bench, so that you don’t have lawyers who feel like they need to keep working because there’s nobody to leave their clients to. And so, I know that’s something as a managing partner, I’m always looking at, ‘Okay, who’s 10 years after this and 10 years after this,’ and we want to make sure we have the right bench in every generation. And then I think firms can start establishing what I would call norms that help people to transition gradually out of firm life. And I think this echoes what Arnie was saying and what Tracey was saying, which is, some of this isn’t just like, you just don’t do this on day one and tell someone it’s time for them to leave. It’s a conversation that you start and you kind of work towards it maybe in baby steps. So, maybe what you think about is having age limits for serving on important firm committees, right? So that, the idea that you’re kind of transitioning not just clients, but also firm management to younger lawyers. That you have hours and receipts minimums for someone to stay as an equity partner so that it kind of leads to transitioning out to maybe an of counsel status. So, it’s kind of a baby step on the way. You know, you have to come into the office if you want your own office, right? So that for lawyers who are starting to work primarily at home, again, you’re sort of taking these baby steps towards establishing a life outside of the office.  

And then, the last thing I’ll mention is, you know, taking opportunities to sort of publicize with your colleagues and within your firm, some hopefully good role models who are leading the way. You know, lawyers who have stepped back and are doing some really interesting and exciting things that, you know, people who are thinking about retiring can look to as a model. So, you know, one of my mostly retired partners, for example, has been very active with community colleges and serving on the board of community colleges, or I’m sure you’re all familiar with Senior Partners for Justice, like, a great organization that you can get involved in. And you can continue to be part of the legal community without necessarily representing individual clients. So, just publicizing that kind of activity that’s going to show people you can stay active and engaged even if you’re not coming into the firm and representing clients every day.    

 

STACEY: 

So, Arnie, one of the things I was thinking about as Erin was talking about having policies in place, is a concern that if the policies or maybe more just a concern that a lawyer may leave one firm and as Erin did say, go practice on another, but I’ve also seen as an assistant bar counsel, folks go from bigger, smaller, smaller to home. I’m trying to get at the issue of, how do we help avoid lawyers who are actually sort of in decline and maybe losing their fitness, staying out there practicing in a way that puts the public at risk, if you will, clients and clientele? And what can you say to lawyers, to help us be responsible for one another, sort of recognizing again our obligations to the integrity of the profession, so that that’s not happening?  

 

ARNIE: 

Well, you know, I hate to say that the Board of Bar Overseers and the Office of Bar Counsel should be more involved in trying to help people transition, but it’s a place where, at least there are resources that they can send people to, like Lawyers Concerned for Lawyers, to get help. And a lot of lawyers don’t know where to go, or they feel embarrassed to have to go somewhere to do these things.  

Now there are a lot of volunteer opportunities. For example, I have been involved the last couple of years – but it’s because I teach there – Northeastern has all kinds of opportunities for… if you want to volunteer in different areas. And I’ve been doing that. I got to know some other people that I knew when I was practicing all the time in the courts, some retired judges, judges who were either prosecutors that I tried cases against or when I was at the public defender’s office or people like that. And we all are generally in the same age group, and we try and encourage some of the younger lawyers. And this is something that I think is a great resource that older lawyers have, is to encourage the younger lawyers to get involved in teaching, working with students, different things like that to get them so that they understand the basis and utilize what the experience of people like I have, but to turn over to the other people, to the younger lawyers, the responsibility for handling some of the programs that you’re trying to get done. And it’s mentorship to some extent. And even if you’re trying to slow down and do that, it’s something to keep your interest up. And… that way, you can… be a valuable resource still. I enjoy doing that. I still meet with younger lawyers periodically to try and encourage them to get more involved in, for example, bar associations or other groups. I think that those things are something that people who are ready for retirement have, are a resource, that we don’t really tap very well. And I think it would help if people are aware of those things. And I’m not sure who’s going to tell you all that you do, but when I run into my clients or other people that I know who should be cutting back, at least, that these options are available to.     

 

STACEY: 

Erin, one of the things that I’ve noticed being here at LCL, we’ve had a few cases where a lawyer is in need of retiring, you know, either fairly, well, fairly quickly. But one of the things that l’ve noticed is that on the way they may have been taking on cases that may seem more or less viable financially, perhaps because decision-making has been declining with time as well. What are your thoughts about, again, how in the integrity of the profession or within the firm, firm context, how to manage winding down those types of cases and that type of practice?  

 

ERIN: 

Right. I can say, Stacey, I’ve had personal experience with this because when my father passed away in Pennsylvania, unexpectedly, we discovered he had been taking on all kinds of pro bono cases that were just like, wow, what are we going to do with all of this, right? So, l mean, I guess from the firm perspective, you know – you folks probably all know this, right – there was a pretty well publicized decision about, once a firm files an appearance, the firm has the appearance. And so, if there is a lawyer who can no longer represent the client, the firm either has an obligation to find someone to represent the client or to get permission to withdraw. It’s the firm’s appearance that’s in. And so, in that situation, the firm has to deal with it. So, I think that’s definitely, hopefully an issue that doesn’t get to the point where, again, if you’ve got a firm that has some sort of centralized process for opening cases and making sure people are getting bills out and making sure people are paying the bills, you’re hopefully not left with an enormous number of cases that are not viable or that are severely in arrears or something like that, but that could certainly happen.   

I think it’s definitely a more challenging situation when you’re not with a firm, when you have an individual lawyer who’s appeared in a bunch of cases and it’s difficult or impossible to find other lawyers to take over those cases. I’d be interested in Arnie’s view on this, but I think that if, in that particular case, if a lawyer… is seeking to withdraw because the lawyer has made the judgment that they’re no longer competent to represent the client and there is no successor counsel, to me, the court has to allow that attorney to withdraw. And then it’s, you know, the client would either have to find new counsel or continue the case pro se. I don’t think a court can, you know, require someone to continue representing someone if they’ve made the determination they are not capable of doing it. Obviously, a difficult question, but that’s sort of the way that I see it. And I know that, you know, that is something that the Office of Bar Counsel faces when a lawyer passes away unexpectedly and somebody has, you know, there has to be a way to wrap up those cases. But from the firm perspective, I do think it’s the firm’s responsibility.   

 

STACEY: 

So, Arnie. Yeah, so what happens? The lawyer says, I’m struggling. I need to get out. What do you recommend?  

 

ARNIE: 

There is a way where you can petition the court to appoint someone to take over the practice. That is available. But that’s an exceptional situation to do that. And usually that petition is filed by the Office of the Bar Council, which means that it’s gotten to an extreme point where no one else is available and they appoint someone to close out the practice and to take care of all the book-work that has to be done. They appoint the person as a, it’s a paid job for someone, but that’s a, it’s a lousy way to end up a practice frankly. But so… As I said, I think we try and encourage people to recognize the fact that you can’t go on forever and you have to find other things to do.  

Begin to tell your clients, ‘Look, I’m sorry, I’m not going to continue to carry…’ For example, I tell my clients, now I don’t carry a full caseload. I don’t even carry a half a case load. I have about 15 active cases and I don’t… I enjoy other things other than being, practicing law. I go to the gym three days a week. I’m not a physical specimen, but it’s good for my mind if nothing else. I read a lot, I go to conferences. I just went to one in Kentucky for lawyers who represent other lawyers. APRL is a group that is involved in that type of thing. And I did a double duty and went to visit my granddaughter while I was down there and took her out for her birthday. So, those are the things. I think what you’ve got to do is find other things to do. And you have to encourage people who should be… cutting down their practice to do that kind of thing. And that’s a hard thing with some people. They don’t want to recognize the fact that they really can’t do it anymore. And that’s where the difficult – I don’t have an answer to that. I’ve talked to some people that I know that I think really should be either cutting back or cutting out. And not everybody wants to accept that fact. And that’s a conversation that I think, especially if you’re under certain circumstances, if it’s a client, it’s a lot easier to have that conversation than it is with a friend, frankly. 

 

STACEY: 

Erin, you mentioned, you know, a firm has an appearance in, it becomes a firm’s responsibility. And one of the challenges, I think, to having the difficult conversation about cognitive decline gets to be, perhaps, how long has this been going on and potential issues of malpractice. So, what are your thoughts about whether a firm should have a look back period when they learned that a lawyer suffering from cognitive decline and how would you go about handling that?     

 

ERIN: 

Well, I will say in my experience where this issue has come to me from other firms, when you’re dealing with a firm, I do think the issue tends to surface a little bit sooner than when you’re dealing with somebody who’s been practicing by themselves for a number of years. And in combination with the fact that the issue does tend to surface, I think what l’ve experienced is that those senior lawyers, for various reasons, their caseload has kind of diminished over time. So, it’s typically not a huge number of cases that you have to look back at. And I also think it depends a lot on how those cases were staffed. So, you know, again, to the extent you’ve got a firm situation where there’s typically a second lawyer staffed on cases, I think it’s easier to sort of interview that second lawyer, make sure that, you know, the second lawyer isn’t aware of anything that’s potentially gone awry with the case and sort of, you know, rely on that.  

I think the difficulty is where, if you have a situation where you have, for example, a solo or you have, you know, a lawyer who’s been working essentially by themselves on cases for a while, you may actually have to conduct an audit of that lawyer’s files just to make sure that no deadlines have been missed, that everything that needs to be done in the case is up to date. And I don’t think you have a look back period like three years or something like that, which is the statute of limitations, but, because typically, if you’re working through a case file, you can see pretty quickly if a deadline’s been missed, if discovery was never served, if it’s a transaction, obviously the timelines are even shorter. So, in most circumstances, I think the amount of look back, the amount of auditing you would need to do would not be as extensive as somebody who’s got a huge practice who’s in their 40s. But I think that there definitely would be circumstances where you would have to actually undertake an audit of the lawyer’s files just to make sure that nothing has either been missed or is about to be missed. 

 

STACEY: 

Tracey, that sort of raises, I haven’t been in that position, but as l was listening to Erin, anxiety was, the thought of anxiety was arising in my mind. How do you talk to people about how to confront both sort of professional obligations and their own sort of emotional distress that might be rising up in such a complicated situation? 

 

TRACEY: 

Yeah, I mean, one thing we didn’t really get at was that sometimes if someone has mild cognitive decline, their insight isn’t there. In other words, they don’t recognize their deficits. So, that’s another challenge when you’re sharing that. They may not actually see it. So, it’s less resistance and actually inability to understand. And so, you know, trying to find, sort of the doorway in and sometimes anxiety is the doorway in. If they’re not recognizing that their performance is slipping, but they are more anxious or they are more stressed. So, I use words like stress and anxiety, how that can impact how we’re functioning. So, l’ve got lots of little backdoor tricks, so to speak, to get to the point [where] the person can recognize, ‘I’m struggling in some way.’ So even if they don’t realize the cognition piece, the anxiety, the stress, the overwhelm… sometimes that may be the way in for them to seek out help, to recognize they need ongoing support, to talk to a clinician or a physician. People – and the folks we’ve seen at LCL tend to be highly anxious because they are accepting on some level of help. So, then we’re doing a lot of like working on, all right, how do you get supports? How do you start to plan? So, if someone has insight, we’re managing the anxiety in a more, I think, practical, this step, this step, this step. But if someone doesn’t have insight, we’re kind of starting at square one and just trying to help them access resources.     

 

STACEY: 

And Arnie, as bar counsel, I don’t know that l’ve ever seen a case, but what are some of the things that you could say to lawyers again to sort of encourage them to face the challenge of helping their colleagues address the need to reduce their practice or make changes because they are potentially becoming incompetent? I know 8.3 requires,   

us to report, but short of that, what can you say to encourage a lawyer to help another lawyer, you know, overcome… What can you say to a lawyer who may be having anxious, troubling feelings about having this conversation about sort of the ethical obligation to lean in and be of assistance to their colleagues?  

 

ARNIE: 

You know, I might… as someone who represents lawyers all the time, the fact is that before the Board, no one wants to go before the Office of Bar Counsel or the Board. It’s a bad experience. I don’t know anyone who’s had a good experience going.  

 

STACEY:  

I think if they dealt with me, they have. [Laughs]. 

 

ARNIE: 

Even with you, even with you. I had cases with you, even then… But the fact is that, you know, I will say to clients, ‘You’ve got to deal with this because you don’t want to have them make the decisions for you. You know, you want to try and confront your own problems. You’ve got to confront your own problem. Because if you don’t, it’s just going to get worse at the Board.’ It doesn’t get better.  

And it lasts a long time. That’s the other thing with the Board. All cases are there for – and with the pandemic, it’s even worse – they’re there for years. It can be a couple of years where you’re sitting wondering what’s going to happen to you. And when they finally get to what I have, someone right now who’s trying to straighten out his practice, his firm and everything. And he’s being, he’s doing it diligently, but it’s a lot of work. And he doesn’t have much help to get it done. And I will say that the assistant bar counsel who’s on the case has been very helpful. She has worked with him to try to get him to do the right thing and he’s cooperative. And I’m hoping that somewhere down the road, we’re going to be able to successfully get him through the process without great harm and allow him to retire with dignity. All right? And that’s what he wants. That’s what he wants to do right now. 

He’s come to grips with it, but you’re not always given that option. And that’s too bad because when you’re not given that option, it becomes more difficult to go through the BBO process, which is a hard process. Nobody… does it very happily, I’ve got to say. And I knew that when I was the bar counsel, and I know it as someone who represents people over there. It’s always a difficult process. 

 

STACEY: 

No, I think that that’s true. And certainly, I think encouraging someone to retire prior to a misstep that can be very serious because l’ve seen situations even where a lawyer has tried to retire, take on retirement status as a way of saying, you don’t need to worry about me. But because you can come back, you may not be allowed to take on that retirement status. You may be sort of required to go through that disciplinary process, which as you say, is very challenging. I certainly never, as an assistant bar counsel, I always saw how difficult it was for lawyers to be going through that process. So, I think you’re absolutely right. You want to avoid that at all costs.  

 

ARNIE: 

I can recall you saying to me in a particular case, you know, I think you really should get this person some psychological help. And that was a great suggestion and that has really made a difference for that person. But you don’t always get that suggestion from the Office of Bar Counsel. More often than not, you get a, ‘We’re going to suspend this person, or we’re going to disbar them,’ or whatever it is, rather than we’re going to try to help them. So, you try to work, I try to work with assistant bar counsel in trying to come up with some kind of a solution to – it’s not like being a criminal lawyer where, and you and I both know, where you go in and most of the time, while pleading people guilty is one option, you also go to trial and, you know, fight to get a not guilty. That’s almost an impossible exercise with the Board of Bar Overseers. You have to look at it from a different perspective than being – it’s not like criminal law.  

 

STACEY: 

I would say I didn’t lose many cases. [Laughter]. 

 

ERIN: 

I think, Stacey, another consideration to add to what Arnie said, and I see this sometimes with lawyers who come to me with disciplinary issues late in their career and they have, you know, they’re trying to wind down their practice or they’re not practicing full time anymore. And so, they decide to drop their malpractice insurance, right, because they’re not, you know, they don’t have as robust a practice. And so the cost of malpractice insurance to them seems, vou know, something they can’t afford. 

And so, that’s another sort of red flag, I think, too, when you start to talk to people about… ‘How do you want to end your career?’ Because if you don’t have malpractice insurance and you end up getting sued or you end up with a bar complaint, so you don’t have any coverage, that can be really financially devastating for you.  

 

STACEY: 

That’s a great point, that’s a great point. Amy, I’m not – oh, I see there is a question. ‘Are there any suggestions on how to approach the conversation when a client is the one who communicated concerns regarding the lawyer’s functioning? Any suggestions on how to approach this conversation?’ I’m not sure from this question if the conversation is with the client or with the lawyer who needs to basically inform their client that they’re having difficulty. Do either one of you want to field that from the perspective of being a lawyer, perhaps in a firm, who becomes aware that there are concerns with another lawyer in the firm and the client has raised the concern? I think Erin, that would be a question you could take and then maybe we’ll take the other part of it with Arnie.  

 

ERIN: 

Sure, so certainly for me as the managing partner, the first thing I would want to do is assure the client that I was taking their complaint very seriously and that I was going to investigate it and it was not going to be ignored. I mean, anytime a client complains, that is my… response. But so I think that would be the, my role as managing partner… you know, in terms of conveying a response to the client would be to immediately make them aware of taking that seriously. I’m going to investigate it, and I’m going to get back to them with, you know, a response. So, that’s sort of the precursor to then, I think, talking to the lawyer.  

 

ARNIE: 

Let me tell you a different story, which is, what I find, frequently I’ll get clients, lawyer clients, who have handled, when a client makes a complaint to them about what their representation is, they get angry. All right? And they say things to the client that they shouldn’t, because it’s a mistake to try and confront a client about a complaint. They should get somebody else to try to handle it, I think. But in any event, I can think of a case where, a particular case, and it wasn’t the sole time l’ve had this, where the lawyer got angry with the client, wrote his own response to the Board of Bar Overseers, which is another mistake. And then at that point, when he got a letter from the Board about straightening it out, and when I’m talking to the client… the lawyer, there’s a war going on between him and his own client. It’s too late, all right. Now, what I would try and do is say to resolve it with a new lawyer that the client got and to work out some kind of a result so that they agree on how we’re going to resolve the case, usually with a monetary return of a fee or part of the fee. But in those situations, when I get involved in it, it’s already too late. And what’s going to happen is then you’ve got to convince the Office of the Bar Counsel that, you know, they don’t really need to get involved in the case, but that’s, they’ve already got the complaint and off they go. So, it’s a difficult situation.    

 

STACEY: 

So, I think maybe what I hear, Arnie, is that if a lawyer knows that a client is complaining perhaps about their cognition, while anger might be a typical response, that may be a good time to reach out for help to get a lawyer to represent you, maybe talk with a client about, ‘Would you be willing to talk with this lawyer?’ Because there are confidentiality issues, of course. So, ‘Would you be willing to talk with my lawyer about how we can resolve it?’ That sounds like your sort of pitch… to somebody. 

 

ARNIE: 

The first thing is to try to convince your own client, lawyer client, not to try and take this on by themselves. Because they’re aiming for disaster when they do that. Because they’re angry. They were angry with their client for complaining about them. So, that’s the problem that you run into. So, what you’re doing is you’re trying to get your own client under control and try to deal with the other person’s client.  

 

STACEY: 

And if you’re a lawyer sort of out there by yourself, you can do a similar thing, which is to contact a lawyer like Erin or like you, and then ask the client, ask that lawyer – ask your client, whether they would be willing to confer with someone else to help resolve the dispute rather than getting angry and trying to resolve it yourself. Amy, I see you’re back. Are you going to try to deal with this last question or are you calling time?  

 

AMY:  

Well, one, I do want to point out that we are at 5:15, but if people have a moment, there is one other question. ‘Any tips on how to deal with… a lawyer in cognitive decline who denies and is angry and any thoughts about how to ensure that that lawyer does not leave the firm and then continue to practice despite the impairment?’  

 

ARNIE: 

I don’t think there’s any way to control it.  

 

ERIN: 

Do you want to take the first one?  

 

ARNIE: 

First of all, when someone denies the cognitive decline and is angry, it’s very difficult to talk to them, obviously. You try to do it in a rational way and say, ‘Look, you know, l’ve had experience with these types of similar situations. They deteriorate very quickly.’ And that’s what I try to tell my clients who have those kinds of problems is, ‘Those problems aren’t going to go away. What they’re going to do is deteriorate and deteriorate toward the lawyer, not anybody else.’ And that’s who’s problem – it’s going to become their problem to do that. So, l think, the other thing is, you can’t, if someone leaves a law firm, and goes to practice by themselves, they have a right to do that as long as they have a license. And there’s not much you can do about it other than to try to reason with them. All right?  

 

STACEY: 

So Tracey, can you, let me just jump in Arnie, because we’re really at time. Tracey, can you help us with the angry denial, the angry lawyer and denial?  

 

TRACEY:  

Yeah, I mean, the anger could be there as a protection, right? So, I mean, at least, to try to get them in to talk to a therapist to say, ‘You’re having a hard time.’ Like again, we don’t have to diagnose them. We don’t have to tell them what their issues are, but it could be really helpful. They seem distressed. It’s really helpful to talk about it. When someone is that angry and defensive, often there is a little bit of insight and they’re very afraid. Anger is often a mask for fear. So, I like to get them in the door and be able to start to untangle what is underneath that anger. So, definitely getting, if they’re willing to see a therapist to talk about that, that would be helpful.    

 

STACEY: 

And I know again, we do at times help lawyers, help folks have these conversations with people who are perhaps suffering some cognitive decline. So, that’s always a service that we offer. We are at time.  

So, I do want to remind folks that we do have two more programs in this series or on this topic. We have a panel discussion on March 13th from 4-5:15, Reimagine, Refocus and Retire: The Next Steps for Senior Lawyers. That’s a panel discussion that will be co-moderated by Stephen Seckler and Judith Kurnick, both coaches who guide senior lawyers through career transitions. The panelists for that conversation, that wonderful conversation, will be Paul Lee, a retired partner of Goodwin, Elizabeth Levy, retired IP attorney, and mechanical engineer and author Arthur or Artie Kreiger, semi-retired co-founder and senior counsel from Anderson Krieger.  

And then there’s also a succession planning program on March 27th, Webinar for Busy Lawyers, at 12pm. That will be at noon, and they’ll be discussing succession planning with LCL and the BBO and providing best practices for tackling issues related to succession planning. Luz Carrion from LCL and Michelle Yu, the legal program attorney at the BBO will be leading that discussion.  

I want to thank you all for joining us. If you continue to have questions for the panelists or us at LCL, please feel free to reach out and/or to contact us through our website, www.lclma.org. Thank you and good night.  

 

AMY: 

Thank you.  

 

ERIN:  

Thanks everybody.