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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. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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