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ABA releases tool to assess cognitive impairment

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Working in a profession that prizes intellectual agility, lawyers can be especially sensitive to questions about their mental faculties.

Legal professionals tend to tie their sense of self to their cognitive function. They think of themselves as being well-educated problem-solvers who are trained to help others. Above all, they value intellectual stimulation.

However, the stressful sedentary lifestyle that typically accompanies a career in the law also puts lawyers at risk for cognitive impairment. And while lawyers can be hurt when someone points out they have packed on a few pounds, they can be devastated when a colleague tells them they are not fully comprehending their cases or their advice to clients is problematic.

To help attorneys who are concerned about the intellectual fitness of another lawyer or judge, the American Bar Association has recently released a cognitive assessment tool. In 2008, the ABA’s Commission on Lawyer Assistance Programs created what became the Senior Lawyer Committee, the group that led the work on developing the assessment instrument.

The “Working Paper on Cognitive Impairment and Cognitive Decline” is a questionnaire designed to give attorneys guidance in determining whether a partner or friend is just having a bad month or is suffering from something more serious. It also provides recommendations for talking to a colleague who is exhibiting troublesome behavior.
 

Terry Harrell mug Harrell

“This is not a diagnostic tool,” explained Terry Harrell, executive director of the Indiana Judges and Lawyers Assistance Program. “It’s a tool to determine 

if you need to ask someone to have an evaluation” by a medical doctor.

Harrell assisted in the development of the cognitive questionnaire when she served as co-chair of the ABA CoLAP Senior Lawyer Committee. She will become chair of the ABA Commission on Lawyer Assistance Programs in August.
 

The assessment tool was created in response to the rise in calls to lawyer assistance programs across the country from attorneys concerned about colleagues’ cognitive fumbles.

Harrell noted inquires about mental acuity remain a small percentage of the calls that assistance programs receive. Problems with depression and substance abuse far outpace cognitive impairments, but concerns about intellectual health are the fastest-growing segment of all calls.

Across the United States, lawyer assistance programs reported a 14-percent increase in cognitive inquires between 2010 and 2012, Harrell said.

Normal aging or a symptom?

Tip-of-the-tongue moments become more common as people age. The instances where someone’s name does not quickly come to mind or having to look a little longer for the car keys are the kinds of things that naturally happen when someone gets older.

Even as their mental abilities slow, people can still remain active and do their jobs very well, said Dr. Ann Marie Hake, associate professor of clinical neurology at Indiana University School of Medicine. The problem arises when those tip-of-the-tongue moments become more persistent and more frequent that they interfere with normal activities.

hake-ann Hake

Not recognizing family members, substituting the wrong word, getting lost near home and dramatic personality changes are possible signs of cognitive 

impairment, Harrell said.

The ABA’s cognitive assessment tool gives a picture of what is happening by having concerned colleagues put their observations on paper. Writing down any shortcomings in job performance along with changes in appearance or behavior, Harrell said, enables attorneys to better see how their partners and associates are functioning at the office.

Cognitive decline is not limited to senior citizens. Medical conditions, such as diabetes; prescription drugs; emotional turmoil caused by family troubles or even lack of sleep can interfere with the efficient function of a young or middle-aged lawyer’s brain.

Not the end of a career

Certainly, the practice of law can overwork a brain. Attorneys cannot control the pace of the work, so maybe one month they have multiple hearings and briefings to prepare which forces them to forgo sleep and a healthy diet while the next month, the list of things to do shrinks considerably.

“Part of the wear and tear of being a lawyer is that you have a variety of intense things to do that come on a regular, irregular basis,” said Jim Roth, chair of the Indiana State Bar Association Senior Lawyers Section.

Ironically, Hake said, while certain parts of practicing law can put attorneys at risk for cognitive impairment, other parts can diminish that risk.

Sitting all day, working in a high-pressure environment is not good for either the body or the brain, she said. But the high level of education attorneys have plus the amount of intellectual stimulation they get during the day actually exercises the brain in a good way.

Still, Roth questioned when slowing down cognitively becomes an impairment.

“What’s a problem?” he asked. “If you’re at 90-percent capacity of what you used to be, is that a problem?”

He then voiced what is likely a common fear of being told to quit practicing law rather than being allowed to continue doing what you love. He proposed instituting some type of mentor program that can help older attorneys do their work as lawyers. Someone to assist with the workload or to bounce ideas off can provide the needed boost to enable an attorney to keep serving clients.cognitive-facts.jpg
Hake agreed, saying she is not an advocate of retirement. With individuals who do suffer from degenerative dementia, the cognitive decline is usually gradual and with the proper medication and support, they can still contribute.

“These guys and gals have a lot of experience and a lot of knowledge,” Hake said. “Why put that to waste?”

Having a conversation

Doing the assessment is not easy. First the concerned attorney must identify the best people to speak with about the worrisome colleague. Ideally, it should be people who work closely with the colleague and care enough about him or her to be honest in their observations, Harrell said.

Second, the concerned attorney must have a conversation with the colleague.

Mike Long, attorney counselor with the Oregon Attorney Assistance Program, conceded talking to another attorney about his or her mental decline can be tremendously uncomfortable. Compounding the situation is that lawyers usually do not have any experience talking about cognitive problems, and questions about intellect can feel like a personal attack.

Long, who has counseled attorneys for more than 20 years, played a key role in developing the ABA cognitive assessment tool.

Although talking with a lawyer who shows signs of cognitive impairment is difficult, Long pointed out ignoring the problem can have severe consequences. Clients can be hurt, the law firm could get slapped with a malpractice lawsuit and ethical issues could sprout. All this could lead to the impaired attorney, who was once a well-respected member of the legal community, having his or her career ended by a disciplinary action.

Long advised the conversation should be objective and detail what behaviors and work habits have been observed that are causing concerns. Attorneys should be specific with the colleague, noting situations, for example, where appointments were forgotten or court dates missed. Speculation and hearsay should be avoided.

The ABA working paper drew praise from Hake who said the committee did a good job describing the signs and symptoms of possible impairment.

She also encouraged attorneys to be proactive and address any problems rather than dismissing them. The cause of a cognitive impairment might be reversible, but it should be addressed early otherwise it might cause permanent damage. And, if the cause is not reversible, attorneys can take steps to protect their clients and preserve their reputations.

“People shouldn’t be afraid to get checked out and help others get checked out,” Hake said.•
 

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  • Hope my money didn't fund that!
    If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.
  • hmmmm
    I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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