The Life of a Lawyer, Start to Finish: The Aging Lawyer & Exiting Gracefully

Episode Notes

Transcript

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Tish Vincent: When I’m talking to a family member or a staff member of an attorney who is concerned, I always tell them that the way to keep it confidential is to somehow convince that attorney to come in on their own. Don’t make it so they have to feel forced because it feels safer to them even their cognition might be deteriorating much of what they can do and think about stays intact and they feel it’s upsetting to come in and it should be less upsetting to know that it’s your choice.

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Intro: Welcome to the award winning podcast Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession, you’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California, I write a blog named ‘May It Please the Court’ and have two books out titled ‘How To Get Sued’ and ‘The Sled’. In our ongoing series in The Life of a Lawyer, Start to Finish we are exploring just that. This is our last episode in this series. Prior to this, we discussed retirement with Ida Abbott. This one, we’re going to spotlight the Aging Lawyer. We’re going to discuss senior lawyers, possible warning signs of cognitive decline and what to look out for if co-workers are suffering, how to approach that co-worker, where to go for help if you, a colleague or a family member are experiencing some of these warning signs.

And to do that our guest today is Tish Vincent. She’s a licensed Master Social Work and she’s an attorney. She recently retired as the Director of the State Bar of Michigan’s Lawyers and Judges Assistance Program. One of the oldest lawyers assistance programs in the country. She’s currently the Chair of the ABA Commission on Lawyers Assistance Programs, and works as a health care provider and health law attorney by consulting with lawyer assistance programs, physician health programs, and other professional associations across the country on issues of well-being and impairment for safety-sensitive professionals and others. She was appointed by the Michigan Supreme Court to serve as an attorney member of the Attorney Discipline Board for a three-year term ending September 30, 2025.  Just here’s a fun fact, she’s also a former co-host of the State Bar of Michigan on Balance Podcast hosted here on Legal Talk Network. And welcome to the show Tish.

Tish Vincent: Thanks, I’m happy to be here Craig.

J. Craig Williams: Well, I’m glad I can remember as an older attorney to be able to even do this podcast. You know, as seniors that approach the end of their days at law firms, what kind of issues do we see? Are we seeing a lot of attorneys working past 65? Are we aging gracefully?

Tish Vincent: I think there’s a significant number of attorneys who are working past 65. And many of them are working effectively and competently and enjoying their career still. And then there are some who start to have some cognitive decline. It might be a minimal amount or it might be a significant cognitive decline where others that they work with start to worry about whether they’re competent to practice. Though I’d have to say that the attorneys who are failing usually are not worried about that. They’re unaware of it.

J. Craig Williams: They’re unaware of it but are others in their firm aware of it?

Tish Vincent: Some others are aware of it and have some concerns, others might join with the attorney in not taking it as seriously as it needs to be taken. I think that’s especially true in smaller firms where people who are working in the firm are working for their employer and they want to see that business continue. They have a vested interest in keeping their job, their employment. And sometimes the people in the firm can be as much in denial about what’s going on as the attorney is.

J. Craig Williams: So what’s the remedy here? How does the attorney spot it as the attorney continues to practice and when others see it or suspect it? What type of intervention is appropriate?

Tish Vincent: Yes. In my experience, we dealt with this consistently when I was the director of Michigan’s Lawyers Assistance Program. A concerned individual calls in and speaks with someone at the LAP.

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LAP being the acronym for Lawyers Assistance Program. So a call would come in and our operations manager would take that call and then suggest to the person that they speak to one of the clinicians either licensed professional counselor, I’m a licensed social worker or in some jurisdictions it’s an attorney counselor who will speak to the person. But a concerned person calls in, it’s a family member, it’s one of the employees in the firm or maybe it’s a colleague of the attorney that’s noticing that something is wrong. So they call and they call with questions and concerns. And frequently I think when people make that kind of a call, they feel a little like they’re letting the person down that they’re worried about by talking to somebody about it. Kind of like if they talk about it, it will make it more true.

So the work of the person that answers the phone, the clinician that takes the call is to put the caller at ease and to help them realize that this is something that happens at times and help is available, and that the clinician will start doing what we call case management in the therapy field which is trying to get a good picture of what the worry is. And then coach the person on the phone how they might get the attorney they’re worried about to come in and sit down with the clinician and follow the recommendations the clinician provides after they do an evaluation.

J. Craig Williams: Is this process confidential? I suspect that’s probably one of the first questions you get.

Tish Vincent: Totally confidential. Yes. This kind of situation, let me explain a little bit about that. It is confidential as long as it is voluntary. If there is a grievance fits filed because the attorney has mismanaged a case, missed a deadline, not been able to practice law as they must if they took the case, then they might come in to help via the discipline system where there’s a grievance filed against them. In Michigan it’s the Attorney Grievance Commission, other jurisdictions might name it differently, but the regulators that regulate grievances might send them into a Lawyer’s Assistance Program or send them to a private therapist. And then the requirement and not a recommendation is that whether or not they come and whether or not they cooperate must be reported back to the regulator. But that is a mandatory kind of a voluntary referral where the person or somebody that cares about them gets them in, then it can stay completely confidential and that’s the preferable way to do it.

When I’m talking to a family member or a staff member of an attorney who is concerned, I always tell them that the way to keep it confidential is to somehow convince that attorney to come in on their own. Don’t make it so they have to feel forced because it feels safer to them even their cognition might be deteriorating much of what they can do and think about stays intact and they feel it’s upsetting to come in and it should be less upsetting to know that it’s your choice. If that makes sense.

J. Craig Williams: It does. How does it work for the lawyer in like say the two lawyers or more practicing together, one lawyer spots some form of attorney missing deadlines and you know is of the age that it might be appropriate to have dementia or some other issue arise. What ethical duties do attorneys have to report it and how should an attorney deal with this situation?

Tish Vincent: Well, I know attorneys have an ethical duty to report an attorney that they can see is violating the ethics that we have in our rules of professional conduct. And when they see that deadlines are being missed and matters are not being handled appropriately, they do have a duty to report it. They can report it to the discipline system. The regulator’s that that’s where they’re supposed to report it. But again depending on which jurisdiction you’re in. In Michigan, if they report it to the LAP and the lap engages, that duty has been satisfied.

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If they report it to the LAP and the attorney does not engage, then we have various confidential ways of letting the person know that they need to go ahead and report it to the regulator because if they don’t, the public is going to be harmed by an attorney who is no longer fit to practice if they have a cognitive decline that’s significant enough to interfere with their practice.

J. Craig Williams: That makes total sense. Well, Tish, at this time we are going to take a quick break to hear a word from our sponsors, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Tish Vincent. She’s the Chair of the ABA Commission on Lawyers Assistance Programs. And we’re talking about senior lawyers, dementia, and other issues. We talked about the Lawyers Assistance Program before the break, walk me through what happens when a lawyer voluntarily comes into the program and says, “You know, I may have some issues with my practice. Let’s talk.” What goes on?

Tish Vincent: What happens is a staff member of the Lawyers Assistance Program either an attorney counselor or a clinician sits down in a confidential meeting in a private office and gathers information about what’s going on. Now, in some LAPs, they have clinicians on staff that can do an evaluation. In some LAPs they send the person for an evaluation to a provider that they trust, or some LAPs help the family members find a treating clinician or an assessing clinician that can do an examination and identify what’s going on. Once there’s a diagnosis and some clinician that’s trusted and properly vetted and licensed comes up with that diagnosis, then in a Lap that monitors like Michigan, the case manager in cooperation with the other case managers and clinicians that work in that LAP generate a monitoring agreement. The monitoring agreement is going to contain the treatment possibilities that that person needs. Maybe they need therapy, maybe they need to see their primary care physician, maybe they need to see a psychiatrist. It varies depending on the diagnosis.

The monitoring agreement lays out a series of activities and contacts that the person has to engage in to address the diagnosis that’s causing the problem that brought them into the LAP. Then over time it’s a standard time for a monitoring agreement for a person with a sufficiently severe diagnosis would be two years. That is common if there’s a substance abuse problem or an untreated mental illness. It’s a little different with cognitive deficits. Cognitive deficits depending on their severity do not have a good prognosis for changing. You can’t get treatment that can reverse dementia. You might be able to get some medications that slow it down. But it is a condition that really does deprive the attorney of their fitness to practice.

Now, I always say that there are medical conditions that can present in look like dementia and yet they’re not. One thing that I’ve seen, I’ve seen it more than a few times in my years of clinical practice are individuals over the age of 65 who have sleep apnea that’s been untreated.

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This can present as if the person is severely demented. However, if they get a sleep study and they use a CPAP machine within a relatively brief period weeks or months, their cognitive function is restored. So, I can’t underestimate how important it is to have a medical examination to have a doctor involved that is part of the diagnostic team whenever there’s cognitive problems of this nature because there are conditions that can be treated but if it’s frank dementia, that is something that needs to be managed with helping the attorney retire with dignity and enjoy their life without trying to work because it becomes very impossible to work if you don’t have your cognitive functions intact.

J. Craig Williams: Well, there are some diagnoses in that area, dementia and Alzheimer’s. Is there a significant difference between those two?

Tish Vincent: There is a significant difference in those two. Dementia is a term that’s used to describe the diminishment in the cognitive ability, but it’s kind of a grab bag. I would say, in my experience, and I’m not a physician. I think that a physician could answer that more eloquently than me. But that dementia could be any number of conditions can cause it and it’ll be very variable with how severe it is. Whereas Alzheimer’s is a distinct disease process that causes your brain and the connections in your brain that allow it to work as we know our brains to work to deteriorate.

So I think of Alzheimer’s as more extreme and the onset it has been described well in the clinical literature to cause people to be unable to even necessarily care for themselves. They need memory care to be housed somewhere where they can be kept from wandering out into the street. And this wasn’t my clinical experience but a friend of mine, her mother had Alzheimer’s and she’d go out barefoot and try to walk to the store in the winter. There’s just a really global diminishment in many of the activities of daily living that keep people safe and much less be able to practice any kind of profession. So I guess I think of it as a question of degree, Alzheimer’s is more severe.

J. Craig Williams: As you engage a colleague or engage an attorney in this, it starts out, you find that there is a significant level of denial or are the attorneys receptive to hearing other people say, “Well, you know, you might not be fit to practice anymore.”

Tish Vincent: I think there’s a significant level of denial. There’s also another factor with dementia or Alzheimer’s or cognitive decline. I remember learning this from a neuropsychologist that one of the first effects that they see with these dementing illnesses is that the person loses an awareness of themselves and they don’t know they’re failing. Okay, it’s kind of like a neurological version of denial. So they don’t see it. They feel like other people are making it up or they’re doing fine and that’s a very sad and difficult thing to deal with. In my experience, the best way to proceed is to get some individuals from their private life involved that care for them so that they can speak with a clinician in the presence of maybe a trusted partner in a law firm or a spouse or a very close friend that can say. “You know, I love you. I really value you but you’re not functioning like you used to.”

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I think one of the things that I have found powerful and working with anyone with an illness where there’s a lot of denial is when the people who are trying to help feel concern and that’s the word I use, concern. “I’m concerned about you. I see you doing this. and this, and this, and those things as I understand it happen when somebody is beginning to have some cognitive decline. Would you consider going and talking to an expert about it?” And then I always say to people, you do that, you say you’re concerned, you describe your concerns and then you ask them to go get help and then you say, “I could be wrong about it, you know, I could be wrong. Maybe I’m just a worrywart. Would you go with me and talk to somebody about it? Because they could maybe help us understand if there’s something to be concerned about or not.” That approach leaves people some room to look at the possibility and it can sometimes help get past the denial.

J. Craig Williams: That’s an interesting way to approach it and hopefully would work. We’re going to take a quick break to hear a word from our sponsors, we’ll be right back.

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And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Tish Vincent. She’s the Chair of the ABA Commission on Lawyers Assistance Program. We’ve been talking about how to approach attorneys in the twilight of their practice and maybe help them begin to retire as it might be appropriate for their practice. As you go through this process, what happens for solo practitioners? And there’s say that there’s just one person practice, there’s no colleague there. Nobody really monitors what that attorney is doing other than the courts and families not involved because they’re not sophisticated enough to be able to handle or understand what’s going on. How you deal with solos?

Tish Vincent: I think with solos, they’re more likely to come in because of aggrievances filed, a deadline is missed, something doesn’t get done and aggrievance goes into the regulators. And then the regulators are aware of these problems too and they’re going to require them to come in to the LAP if it’s a monitoring kind of Lap. If it’s not, I think the regulators go out of their way to try to get help otherwise. They know clinicians in the area, the different areas of the state and trying to get people help. But then the first phone calls might come from the family members who know that the regulators are demanding that they come in, and the family members will be the first clinical work the clinician has to do to get the family members to come in and to think about what’s going on. That can be very difficult in that situation because the family members are used to that person functioning and need their income.

And it’s very hard to look at the fact that your partner might be sliding into cognitive decline. But that’s what clinicians are trained to do, to help people take a look at it and to impress. Usually, it’s easier to talk with the family member about the option of retiring with dignity because you get the help that you need for the family member and you proceed with that, then you get the attorney in. And my experience, there’s someplace that that person knows this is happening and when they get into a safe environment where there are people trained to help them, people trained to understand what’s going on and find the right health care providers that they feel relief.

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But with a solo practitioner, there’s also a need for another attorney who is fit to practice to come in and to take over the cases that this attorney has. So part of the work there is part clinical and its part legal and ethical is between the family, the attorney or someone the attorney knows. Maybe they have a friend that’s an attorney and find another attorney who will come in and help to close that practice and take the cases that need to be managed.

J. Craig Williams: Serious steps all. I don’t want to pick on what’s going out here in California, but just as an example we have a somewhat famous attorney who’s in touch with our local bar association for various issues. And in the midst of that investigation up pops the claim that the attorney has Alzheimer’s. Not to have you pronounce about what’s going on out here, but I’m sure situations have arisen where you have a competent attorney in the midst of disciplinary action or in the midst of aggrievance procedure and then all of a sudden discovers that the real reason is I think as you have mentioned is there’s a cognitive decline or there’s an issue with Alzheimer’s or some form of dementia. What happens when it transitions to the client? How do you protect the client in the circumstance where the attorneys blown a statute of limitations?

Tish Vincent: That is a very catastrophic situation and we all know as attorneys, there some statute of limitations that there — I mean, that’s what statute of limitations are, you can’t go beyond that. So that client has been harmed. Some jurisdictions have a client protection fund where they will reimburse the client a certain amount of money if they have lost money or the opportunity to bring a case and get the justices that they need to get. There will be some kind of compensation with some bar associations with the client protection fund. But that can seem like too little too late in many circumstances. I mean, it’s kind of outside of my area, but I am aware that some people bring the malpractice action against an attorney in that situation. And then there’s variation across the country whether or not the attorney has professional liability insurance. So those seem like meager solutions for that catastrophic situation, but those are the avenues I know of.

J. Craig Williams: You’re about right, there’s a limited issue. You may in some states have the opportunity to go to a judge and ask the judge to extend the statute of limitation due to the attorney’s issues, but it’s a difficult issue. Well, we’ve just about reached the end of our program so I’d like to get wrap up and get your final thoughts as well as your contact information and perhaps how attorneys in various states can reach out to their local Lawyers Assistance Programs in times of need.

Tish Vincent: Yes, absolutely. Well, you can reach your Lawyers Assistance Program. You can go to the American Bar Association website and you can go to the Commission on Lawyers Assistance Programs, that’s COLAP we call it. C-O-L-A-P and this is not behind a pay wall. This is generally available to everybody who’s looking for it. You can find the directory of LAPs and the United States and I think in Canada, and you can get the phone number to call them. You can also find it by Google searching. You can Google search your State Bar Association and then Lawyer Assistance Program. Some Lawyers Assistance Programs are a program in the Bar Association, some are independent. They’re usually affiliated with the Supreme Court or Bar Association. Some are independent, but you can find it. You call them and you let them know the circumstance and they will start trying to help you. It is a well-known fact among those of us who work with LAPs that a lot of individuals don’t know that they’re there, and if they know that they’re there, they think the only thing that they work with is substance use disorders and that is not true.

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They are charged with helping with whatever is going on that’s interfering emotionally or mentally with a lawyer’s fitness to practice.

J. Craig Williams: Great. Well, Trish, thank you very much. It’s been a pleasure having you on our show today.

Tish Vincent: Yes, I’ve been enjoyed being here. Thank you, Craig.

J. Craig Williams: As I mentioned at the beginning of the show, this is the last of 12 different series of the Life of a Lawyer, Start to Finish. Starting out How to Get into Law School and then How to Practice and all the parts in between and finally with how do you retire gracefully and avoid some of the problems that Tish and I discussed on this podcast today. I think I’d be able to have the opportunity to do this and next year we’re going to pick up on Environmental Contamination and conduct the same style 12-month series, one part of the month will be our environmental coverage and other part of the month will be our typical coverage of constitutional issues and hot topics and the news. Well, that’s it for this year. Happy New Year. Happy Holidays and if you’ve like what you’ve heard today, please rate us on Apple podcast, or your favorite podcasting app. You can also visit us on legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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