Aging gracefully and recognizing competency issues in the practice of law

In a city like Los Angeles, there are countless ways to “age gracefully” in terms of physical appearance. But aging gracefully from a cognitive perspective is an area with fewer resources and relatively scant guidance. As an attorney who has litigated capacity, competence and cognition issues for over a decade, I have noticed a few truths that are self-evident and universally applicable when it comes to aging.

For lawyers, the implications of aging extend beyond personal well-being and into professional responsibilities. The effects of aging can significantly impact one’s ability to competently and effectively fulfill job responsibilities. Particularly when clients are at the forefront of these obligations, it becomes crucial to recognize and navigate the effects of aging to meet clients’ needs and abide by the law. Understanding and upholding competence in the legal realm is not only a professional duty, but an ethical requirement.

The silver tsunami

According to the California State Bar’s 2020 demographic survey (as of April 1, 2020), of 189,971 active attorneys, the average age of active attorneys is 50, and more than 16% are over 65. This did not come as a surprise, as a report issued by the National Association of Bar Counsel, Association of Professional Responsibility Lawyers, Commission on Lawyer Assistance Programs, and the Second Joint Committee in Aging Lawyers in April of 2014 had already noted that these percentages were expected to escalate dramatically in coming years as a “silver tsunami” of baby boomer lawyers reach retirement age.

Lawyers who are many decades into their careers offer tremendous experience, insight, and wisdom that can be shared with new attorneys. However, this “silver tsunami” in the legal profession also means there will be an increased risk of attorneys with age-related impairment and insufficient preparation for transitioning away from practice before a crisis occurs. State Bars will need to identify steps to effectively assist aging attorneys, and all practicing attorneys should familiarize themselves with existing guidance and what to look out for to help protect themselves and their clients and colleagues.

Understanding attorney competence

Competence refers to the capability to efficiently perform a task or accomplish a goal. Lawyers in California are required by the State Bar Rule 1.1 to possess the necessary learning, skills, and abilities to fulfill their duties. According to this rule, “A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. For purposes of this rule, ‘competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Failure to meet this ethical standard not only jeopardizes the interests of their clients but also undermines the integrity of the legal profession.

Competence vs. Capacity

Capacity is a legal term commonly used to assess an individual’s cognitive ability to take a specific action or make a decision. For instance, does an individual have the capacity to consent to medical care or enter into a binding contract? Competence, on the other hand, could refer to cognitive capacity but often refers to a person’s overall capability.

When evaluating attorney competence, we are analyzing a lawyer’s overall ability to practice law, including their capacity to comply with all relevant rules and regulations. Is the attorney able to perform their job responsibilities successfully or is there an issue or limitation that impacts their decision-making capabilities which may harmfully impact the client?

Merely demonstrating a mental impairment or deficit to establish incompetence is not enough. Instead, there needs to be evidence that shows a correlation between the mental deficit and the individual’s ability to make decisions or take action. The mental impairment needs to have a direct correlation to the person’s decision-making abilities.

California Probate Code § 811 outlines the criteria used to assess an individual’s capacity to make decisions:

● Alertness and attention. Can the individual perceive and process the information from their surrounding environment? Are they oriented and able to concentrate?

● Information processing. How sharp is the individual’s short- and long-term memory? Can they comprehend and effectively communicate with others? Can they engage in logical reasoning and recognize familiar objects and people?

● Thought processes. Is the individual experiencing disorganized thinking, hallucinations, delusions, or uncontrollable, repetitive, and intrusive thoughts?

● Mood and affect regulation. Does the individual exhibit persistent or recurrent feelings of euphoria, anger, anxiety, fear, panic, depression, hopelessness, despair, etc.? Are they capable of managing and regulating their emotions effectively?

Helping yourself and others

Embracing the process of aging gracefully often requires support and collaboration. As an attorney, there is an expectation to not only safeguard your own well-being but also keep an eye out for the health of your colleagues. The goal is to ensure that both physical and mental health are prioritized while adhering to legal standards and avoiding malpractice.

Here are some best practices for navigating the intersection of attorney competence and aging.

● Observe and take note of physical deterioration, such as if a colleague is neglecting hygiene or wearing the same outfit multiple days in a row (that may be out of character for that person).

● Look for cognitive impairments documented in medical records, such as memory lapses, forgetfulness, or disorganization.

● Familiarize yourself with the signs and symptoms of depression and Alzheimer’s, including feelings of hopelessness, irritability, fatigue, weakness, and decreased appetite.

● Encourage colleagues to seek medical attention if you notice signs of physical or mental decline, and offer your support throughout the process.

● Approach concerns with empathy and understanding, recognizing that we are all susceptible to the impacts of aging.

By cultivating a culture of care and attentiveness, legal professionals can prioritize both their own well-being and that of their colleagues. In doing so, the standards of the profession will be upheld, and the aging process can be confronted with grace.