OCBA Update: Moment of truth - Why aging lawyers deserve our help

I have been guilty of looking the other way. It was never out of malice or even lack of caring. It was out of awkwardness, unpreparedness and uncertainty, which quickly became justification:

“It’s none of my business.”

“What do I know?”

“I’m sure others will handle it if it’s really a problem.”

But I knew then, and know now, those stories aren’t really true, or at least not always.

Our profession, like our country, is aging. Forty percent of lawyers in this state were born before 1960 (i.e., they are 60 or older).1 And with that aging population come the problems associated with aging, including diminished capacity. For lawyers, this reality is particularly troublesome. Like people across many different workforces, lawyers are working longer due to increased age spans and the need for retirement savings. But lawyers sometimes hang on for other reasons — some simply don’t know what else they would do if they didn’t practice law. This mentality is understandable, but it can be dangerous because it poses potential risks to clients. Clients might see the gray-haired lawyer as the epitome of wisdom and professionalism, but they are particularly ill-suited to assess whether the lawyer is actually competent. And when a lawyer practices with diminished capacity, it not only affects the lawyer, but it sometimes turns clients into innocent victims and decreases the legitimacy of our justice system. Malpractice insurance and the State Bar may help make up the pecuniary loss, but the psychic loss to both client and lawyer is irreparable. And no one is well-served when issues require the involvement of the Attorney Grievance Commission.

Even if you are aware of these issues generally, when they actually confront you in the form of an attorney — whom you’ve perhaps known for decades — knowing how to handle the situation can get tricky. While some may be comfortable with a “I know it when I see it” mentality toward diminished capacity, others are not so sure. We are not mental health professionals. And one person’s quirk may be another person’s mild dementia or other health problem. As much as we know, and maybe even regularly interact with, other lawyers, rarely do we have the confidence of a deeply personal connection that enables us to be sure someone might have a problem.

And even if we think that might be the case, it is hard to know how to address the situation with sensitivity and respect.

Professional resources

Thankfully, the past decade, and the obvious demographics, have brought more attention to this important topic.2 Resources exist for all of those affected: the aging lawyer; those who might have a sense that something is going on but cannot quite put a finger on it (or come to grips with it); the aging lawyer’s law partners who must try to plan for succession while caring for their comrade; and those who know, care for and love the aging lawyer but are not sure what to do.  Here is a list of resources to help guide us:

• The American Bar Association offers a variety of articles covering various aspects of this issue.3

• Michigan Bar Lawyers and Judges Assistance Program (LJAP)

For lawyers in Michigan, the State Bar’s Lawyers and Judges Assistance Program (LJAP) has a strong track record of assisting all lawyers with mental health, addiction, substance abuse and other issues. Whether you need help or want to help someone else, it’s a great place to start. LJAP offers evaluation, screening, referral to health care providers in the attorney’s part of the state and case management services to help the attorney transition to a status commensurate with their fitness to practice. It has successfully supported a number of Michigan attorneys as they’ve sought needed medical care and retired with dignity. michbar.org/generalinfo/ljap/home

• Article by Past President Jennifer Grieco

With regard to transitioning the practice, the State Bar has been active; Past President Jennifer Grieco wrote a good piece about these issues a few years ago.4

• Other state bars have some excellent resources on this topic as well:

—The North Carolina Bar Association established a Transitioning Lawyers Commission.5

—The Florida Bar established an “aging lawyers working group,” which teamed up with the bar’s LJAP and a local university to provide a holistic set of tools for attorneys.6

—The State Bar of New Mexico and the New Mexico Supreme Court provide resources, including a video, to address these issues.7

—There has been growing scientific research on the various causes of dementia and understanding how it differs from the normal process of aging, and the Alabama State Bar did a particularly good job of summarizing the science and providing practical tips for how to address this delicate issue in a recent article.8

Help starts here

While the OCBA does not have the resources of LJAP or the aging and mental health expertise to truly tackle this problem, it does provide two important things that help address these issues, and both are integral to our strong legal community.

Lawyers of a Certain Age (LOCA) Committee

The first and most important is involvement. While aging is not a new problem, attorneys in the past had more latitude to evolve and ramp down their practice; today’s economic pressures make this more difficult.9 Recently, a well-respected attorney faced such challenges, and several members of our Bar — without fanfare or any ulterior motive — quickly came together to provide support and assistance. This is the best of us in action, and these unsung heroes deserve much praise for their efforts. We are blessed in the OCBA to have such a community. Several years ago, Judy Cunningham and Judge Ed Sosnick started the OCBA’s Lawyers of a Certain Age (LOCA) committee with the goal of providing community for aging lawyers as well as a way for them to stay involved with the Bar Association and the legal community and to continue to give back.10

The Ombudsman Program

Another great resource is the Bar’s ombudsman program, which is a program that was created by the Bar in conjunction with the Circuit Court.11 For many years helmed by Joel Serlin, Ed Pappas and Julie Fershtman recently took over as co-ombudspeople. The mission of this program is to provide a discreet forum for the informal resolution of issues and matters in which there is no other established or preferred procedure to secure redress. Ed and Julie — fantastic and experienced though they are — are not mental health professionals. But I can imagine a situation where a judge or attorney might think that someone else in the courtroom just seems “off.” There is no desire to rush to the Attorney Grievance Commission, but there is a sincere desire to make sure someone who might be in need will, in fact, receive assistance. In addition to the State Bar’s LJAP office, perhaps a call to Ed or Julie would help you figure out how best to act.

We all have a duty — to the law, to clients and to each other — to help with this important issue. It is not always easy, but it is essential. Our senior lawyers paved the way for all of us in one way or another. Now it’s our turn to help.
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Footnotes:
1. https://www.michbar.org/fi le/opinions/statewidedemographics2019.pdf
2. https://www.americanbar.org/groups/bar_services/publications/bar_leader/2015-16/may-june/a-gentlelanding/
3. https://www.americanbar.org/groups/lawyer_assistance/articles_and_info/senior_lawyer_resources/
4. http://www.michbar.org/fi le/barjournal/article/documents/pdf4article3705.pdf
5. https://www.ncbar.org/members/committees/transitioning-lawyers-commission/
6. https://www.fl oridabar.org/the-florida-bar-news/bracing-for-the-tsunami-of-aging-florida-lawyers/
7. https://www.nmbar.org/nmstatebar/Membership/Commissions/Supreme_Court_Lawyer_s_Succession_and_Transition_Committee/Nmstatebar/For_Members/Supreme_Court_Lawyer_s_Succession_and_Transition_Committee.aspx?hkey=b7e01916-3eea-4191-80e9-5607074f3eb5
8. https://www.alabar.org/assets/2014/08/The_Alabama_Lawyer_09-2015.pdf, p. 298.
9. https://www.lawpracticetoday.org/article/oldlawyers-not-fade-away-age-sooner-retire-later/
10. https://www.ocba.org/index.cfm?pg=loca_committee
11. https://www.ocba.org/index.cfm?pg=Ombudsman
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Daniel D. Quick, of Dickinson Wright PLLC, is the 87th president of the Oakland County Bar Association.