Sept. 4, 2019 – Mary Spranger, who manages the State Bar of Wisconsin’s Lawyer Assistance Program (WisLAP) says WisLAP has received an increasing number of calls concerning lawyers who appear to be suffering from some sort of cognitive impairment.​

The calls come from concerned colleagues, clients, family members, judges and court personnel. “When people are struggling with dementia, they may not realize they are ill at all,” Spranger said. “Therefore, our calls often come from others about the attorney.”

“Often people who call voice concerns about attorneys who have earned great respect in their communities, who have served their clients well for many years,” Spranger said.

“They don’t want anything bad to hap​pen,” said Spranger. In some cases, a lawyer may feel a sense of responsibility to the community, and are holding on for their clients. “But lawyers should know they have permission to stop, to attend to their own health.”

Spranger said interventions can be tricky in these situations, since the lawyer may be in denial or may not recognize the symptoms that are apparent to others.

But as a large percentage of the population ages beyond age 65, these situations will likely arise more frequently. More than 20 percent of the State Bar membership is 65 and older, and another 20 percent is between the ages of 55 and 64.

WisLAP/SLD Program Will Address Aging and Impairment  

On Oct. 15, WisLAP and the State Bar’s Senior Lawyers Division (SLD) are hosting a program to address aging and transition issues faced by senior lawyers, WisLAP policies and procedures for assisting lawyers in need, and ethical issues.

Dr. Elizabeth Chapman, who practices geriatric and internal medicine at the U.W. School of Medicine and Public Health, will also provide an overview of cognitive impairment issues, and the symptoms that typically arise with onset of dementia.

“Some people are just naturally forgetful, and more so when they age,” Dr. Chapman said. “But when conveying your ideas becomes a bigger challenge – that can be a sign.

“The key difference between natural aging and dementia is when a person’s forgetfulness and judgment is starting to cause problems on a daily basis.”

Cognitive impairment is particularly sensitive for lawyers, who are bound by ethical duty of competence. In addition, Supreme Court Rule (SCR) 20:1.16 specifically requires lawyers to decline or terminate a representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”

So, what rises to the level of material impairment? State Bar Ethics Counsel Aviva Kaiser notes the rules don’t define what would be considered a material impairment.

“It may differ by lawyer and by their practice area,” Kaiser said. “If a lawyer is writing a will and having a bad day, they may be able to come back to it. On the other hand, if he or she is a trial lawyer, they have to be on top of it all day. That’s a different situation.”

Kaiser says law firms can put measures in place to protect lawyers who may be showing signs of cognitive impairment. Physician assessments or supervision controls may help lawyers understand the types of work they can continue to perform.

WisLAP can also help. An intervention may be necessary to ensure that bigger problems don’t arise if not addressed, for the lawyer and their clients.

Getting Assistance

Many lawyers may voluntarily assess their cognitive health as they age, and make physician-guided determinations about their ability to practice law. But Dr. Chapman says there’s also a lot of denial when it comes to issues of mental impairment.

“Sometimes, especially with the educated professional, people aren’t necessarily checking,” Dr. Chapman said. “People expect you to be competent.”

“Your kids aren’t looking at your checkbook. They don’t know if you are missing appointments because they wouldn’t think to ask. It can be a little bit tricky to really notice, especially with people in positions of authority. People don’t question them.”

Law firms can monitor attorneys and put policies and procedures in place to address signs of problematic cognitive decline. But many lawyers are solo practitioners. Thus, colleagues outside the firm, or family members, may need to be on the lookout.

But who do you call if you suspect a problem? WisLAP is a confidential program that lawyers can call if they want help with their own potential mental impairment issues, or if they suspect that a lawyer in their community may be having problems.

As Spranger noted, many of the calls WisLAP receives are from family members, court personnel, judges, or other lawyers. WisLAP staff and volunteer attorneys can help guide lawyers facing potential impairment, and help them get the help they need.

“Often, we get multiple calls from multiple sources over time. We may or may not have already tried to reach out to the person with a potential issue,” Spranger said.

“We would develop a plan with the person who called us, ask whether they want to be involved or not. Then we would reach out to the lawyer.”

WisLAP staff or trained volunteers help guide the attorney on what they might need, including a cognitive assessment from a physician. “We determine what the person needs and follow them over time,” Spranger said. “We are here to help.”

Spranger noted that WisLAP is exempt from reporting lawyer misconduct to the Office of Lawyer Regulation (OLR). In other words, calls and information remain confidential. The program is available to lawyers, judges, law students and their families.

Identifying Mental Impairment

Dr. Chapman said dementia is a formal diagnosis based on memory testing. Assessments test a person’s judgment, the ability to find words in regular conversation, or aptitude for doing more complex, multi-step tasks that require memory.

“Those deficits that we see on our formal test all translate to problems with day-to-day life,” Dr. Chapman said. “With mild cognitive impairment, someone has measurable problems. They are not performing well but they are still able to compensate.

“For instance, they have to take more notes and have post-its everywhere, but they still get to their appointments on time. They can still balance the checkbook,” she said.

“But with dementia, they don’t have any idea what’s going on in the checkbook. There are bills past due. It’s that tipping point, not being able to compensate for it.”

Dr. Chapman says for those ages 65 and older, about 1-in-10 develop dementia. It’s closer to 1-in-5 for those ages 75 to 84, and 1-in-3 for those ages 85 and older.

But here’s some good news. “Based on the aging of the population, we thought there would be a lot more dementia now than there actually is,” Dr. Chapman said.  

“That’s reassuring that something is getting better. We don’t have as many people with dementia that we thought we would, say 20 years ago.”

Dr. Chapman said people who retire at younger ages tend to have a higher risk of dementia, probably because they are not taxing their brains as regularly as people who are still working. She also says there are things people can do to delay dementia.

“The first thing is living a healthy lifestyle,” Dr. Chapman said. “Being active and exercising, especially in middle age, especially in your 50s and 60s – if you take good of yourself, see a doctor regularly so that medical problems aren’t getting ignored. That has a lot of benefit overall. But also it’s helpful for your brain health.”

“Being socially active, challenging yourself by trying new things and learning new things. Those are activities that correlate with a lower risk of dementia.”

What about crossword puzzles and Sudoku? “Those probably help,” Dr. Chapman said. “Things that make you try to solve new problems, or process quickly, seem to be helpful. This may help people compensate for early stages of dementia.”

Dr. Chapman noted brain studies involving autopsies after someone has died. They look at the symptoms a person had in terms of memory and thinking and function.

“They can see that people who were highly educated, who were physically and socially active and mentally active, maybe had the same changes in their brain as someone who wasn’t, but didn’t have the same symptoms,” Dr. Chapman said. “So they weren’t having trouble with functioning to the same degree.”