MCLE
Sep. 2, 2014
Knowing When to Quit
Aging attorneys who begin to lose the ability to practice face ethical dilemmas.
To be sure, medical professionals face the same "declining competence" issues as members of the bar. As one American Medical Association website notes: "[T]here is a call for the medical profession to address the delicate subject of when and how to monitor older physicians to assure patient safety." To that end, some physicians recommend that hospitals make the annual renewal of privileges for physicians older than 70 contingent upon their undergoing a fitness-for-duty evaluation. In fact, "concern about declining quality among older physicians is part of what prompted the maintenance-of-certification programs offered by 24 boards that compose the American Board of Medical Specialties." (See Kevin B. O'Reilly, Physician Quality: What's Age Got to Do With It? www.amednews.com (July 30, 2012).) Doctors are not an isolated example. Commercial airline pilots must undergo annual health and performance checks to ensure passenger safety. On international flights, a pilot who is over 60 years old may serve as pilot-in-command "only if there is another pilot in the flight deck crew who has not yet attained 60 years of age." (49 U.S.C. § 44729(c)(1).) Although carriers are required to continually assure pilots' competence, the governing statute requires that they place specific emphasis on "initial and recurrent training and qualification of pilots who have attained 60 years of age, to ensure continued acceptable levels of pilot skill and judgment." (49 U.S.C. § 44729 (h)(1).) Similarly, a commercial truck driver "must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so." (49 C.F.R. § 391.41(a)(1)(i).) And to qualify to drive a commercial motor vehicle, a person must be free of "mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with his/her ability to drive a commercial motor vehicle safely." (49 C.F.R. § 391.41(b)(9).) The Graying of the Profession
A 2011 California State Bar survey found that half of the state's attorneys had been in practice for at least 20 years; 48 percent were 55 or older, and 43 percent were over 60. So who will monitor the work of these lawyers as the years roll by? Fully one-third of the attorneys surveyed were sole practitioners, while another 20 percent were in firms of just two to five attorneys. The significance is that sole practitioners do not practice with colleagues who might be in a position to notice and counsel them on any slips in performance due to age. Even if an attorney has in-office colleagues, in a small-firm environment those colleagues may find it difficult to broach the "declining performance" issue. With tens of thousands of California attorneys reaching an age at which their performance may be affected by a decline in their mental faculties, many continue to practice in a context where no one-other than opposing counsel or an adversely affected client-may be in a position to notice. Judges face the same issues. (See In Re Complaint of Judicial Misconduct, 2014 WL 3397783 (9th Cir.).) Some older lawyers have raised an issue of fairness involved in testing only senior members of the bar. Attorneys who have been practicing for many years often possess the wisdom and knowledge that experience brings, as opposed to younger lawyers who may have more vigor but less practical and experiential knowledge. If the reason for considering the testing of senior lawyers is to protect the public by ensuring continued ability, perhaps the State Bar should require such testing for attorneys of all ages, at specified intervals. State Bar Activity
The California State Bar already has programs, such as the Lawyer Assistance Program, to help members with drug and alcohol addiction and mental health disorders. But the bar has also established a Senior Lawyers Working Group to investigate the impact of aging on the profession. The group has conducted hearings, taken testimony, and has considered ways to evaluate and address a decline in performance, including continuing-education courses for senior lawyers, competence or assessment tests, and peer counseling. The State Bar also has a Senior Lawyers Resources page on its website that provides information and links on how to wind down a practice and how to obtain help for carrying on a practice. It also includes "A Wellness Guide for Senior Lawyers and their Families, Friends and Colleagues." This guide addresses issues such as the health problems that come with age, understanding mild cognitive impairment (MCI) and dementia, depression, warning signs of impairment, and how to help. The "Wellness Guide" provides guidance regarding the types of MCI that may develop with age. The type that affects memory is known as "amnestic MCI." However, "nonamnestic MCI" affects decision-making and organizational skills, including the ability to make sound decisions and carry out the proper sequence of steps to complete complex tasks. Of course, some effects of aging, such as hearing and vision loss, can be addressed within limits by medical attention, unless the attorneys' pride prevents him or her from using hearing aids or bifocals. How Do You Know?
Bar-sponsored programs are one thing, while recognition that one has a problem is quite another. Age-related competence problems can be difficult to recognize and diagnose. (See "Steps to Take") What professionals look for are individuals who exhibit more serious problems with language, memory, and judgment than is normal for people of their age group. (See Susan McRae, Age-related Competence Problems Can Be Tricky to Recognize, Diagnose, Cal. Bar J. (July 2013).) One of the most practical innovations occurred when the State Bar broadened the MCLE rules to require an hour of education on "substance abuse or other mental or physical issues" that impair a member's ability to perform legal services with competence. (See Cal. St. Bar Rule 2.72 (emphasis added).) This should help to raise awareness of age-related competence issues. Rules of Professional Conduct
When a decline in performance occurs, a variety of statutes, rules, and ethics duties may come into play. First and most obvious, all attorneys have a duty to act competently. An attorney "shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." For purposes of this rule, "competence" means possessing the diligence, learning, skill, and mental, emotional, and physical ability reasonably necessary for performing legal services. (Cal. Rules Prof. Conduct (RPC) 3-110(A) & (B).) Age may be a factor in the compromise of some of these qualities: for example, a lack of stamina for trial work or transactional negotiations and document drafting; missing deadlines and appointments due to erosion of memory; or having skewed judgment. Each of these reflects a lack of the diligence and competence required to meet the standard of care. Repeated instances may violate RPC 3-110. Another issue that can arise with age and declining faculties is the inability to deal professionally with opposing counsel, not to mention judges and court staff, as well as the attorney's own employees. Forgetfulness and a short temper caused by frustration due to poor memory can affect all of a lawyer's interpersonal relationships, as can other mental and physical limitations. Keeping clients informed is one of the first things that falls by the wayside when an attorney begins to struggle to stay on top of his or her practice. Erosion of memory and judgment can undermine an attorney's obligation to communicate with clients as set forth in RPC 3-500. And failure to communicate is frequently cited as one of the main factors leading to malpractice claims. In the most drastic cases, the inability to perform competently may even require that the attorney step aside. Indeed, an attorney representing a client "shall withdraw from employment, if ... [t]he member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively." If the matter is pending before a tribunal, the withdrawal must be made with the consent of the tribunal. (See RPC 3-700(B)(3).) Governing Statutes
The attorneys oath of admission includes a pledge to "faithfully discharge the duties of any attorney at law to the best of his knowledge and ability." (Cal. Bus. & Prof. Code § 6067.) In addition, hornbook malpractice law dictates that attorneys must perform legal services with competence. (See Matorana v. Marlin & Saltzman, 175 Cal. App. 4th 685, 693 (2009).) Therefore, failure to discharge a lawyer's duties is a statutory breach as well as a violation of the RPC. However, attorneys have no affirmative obligation under the RPC to report inadequate or subpar performance of a fellow member. In California, dealing with impaired performance essentially relies on self-reporting. Of course, attorneys who practice with a compromised colleague will be highly motivated to address the problem, but that is far different from an obligation to report rules violations. Furthermore, an aging attorney whose skills are diminishing may be the last person prepared to acknowledge an erosion of his or her ability, much less take action to mitigate it. Model Rules Go Further
The ABA Model Rules of Professional Conduct take a different approach. They set forth explicit reporting obligations for attorneys who suspect that another attorney may be putting clients at risk. Like the California rules, Model Rule 1.1 requires competence. Model Rules 1.3 and 1.4 also require diligence and communication with clients. A lawyer losing the ability to meet the demands and schedule of his or her practice, and who cannot recall the information needed to represent clients properly, is at risk of violating these rules. Model Rule 8.3(a) provides that "[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." The rule goes on to clarify that it does not require disclosure of information otherwise protected as an attorney-client communication, or information gained by a lawyer or judge while participating in an approved lawyers assistance program. The ABA rules also go beyond California's by stating an obligation to decline accepting a new client, or to withdraw from an engagement, when "[t]he lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client." (Model Rule 1.16(2).) Therefore, if aging compromises a lawyer's performance, the lawyer has a duty under the Model Rules to withdraw from existing representation and decline new engagements. Ethics Opinions
Professional organizations have been grappling for some time with the ethical issues raised by a lawyer who becomes mentally impaired, either temporarily or permanently. Eleven years ago an ABA committee issued a formal opinion on the subject. (See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 03-429 (2003).) The opinion addresses the obligations that members of a law firm have when they know another member of their firm is impaired. Those obligations include taking steps to prevent impaired lawyers from violating the rules, informing supervisory authorities, and meeting obligations that may arise when an impaired lawyer leaves a firm. The opinion also states that if an impaired lawyer has violated a rule that raises a substantial question as to the violator's honesty, trustworthiness, or fitness as a lawyer, the supervising lawyer or partners of the firm may have an obligation to report the rule violation to the appropriate professional authorities. Furthermore, the firm may have a duty to discuss the situation with its clients, particularly if the lawyer is removed from a matter and someone else assumes responsibility. However, the firm should attempt to preserve the affected lawyer's privacy to the extent possible. Another ABA opinion addresses the duties of a lawyer who knows of mental impairment in an attorney who is not a member of his or her law firm. Under the Model Rules, lawyers have obligations to the profession that extend beyond tending to their own individual conduct and that of members of their firm. "[A] lawyer may not shut his eyes to conduct reflecting generally recognized symptoms of impairment (e.g., patterns of memory lapse or inexplicable behavior not typical of the subject lawyer, such as repeated missed deadlines)." (ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 03-431 (2003) at p. 3).) The opinion cautions that lawyers need not act on rumors or conflicting reports. It suggests that "[i]n deciding whether an apparently impaired lawyer's conduct raises a substantial question of her fitness to practice, a lawyer might consider consulting with a psychiatrist, clinical psychologist, or other mental health care professional about the significance of the conduct observed or of information the lawyer has learned from third parties." (ABA Formal Op. No. 03-431 at p. 3.) Although ABA Model Rules and ethics opinions are not binding on California's courts, they are often cited as persuasive authority when there is no direct authority in California. (See City & Cnty. of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, 852 (2006).) When age begins to take a toll on an attorney's ability to practice law, that attorney is at risk of violating statutory duties and rules of professional conduct-and perhaps even of committing costly malpractice. It is imperative that every lawyer remain vigilant and assess his or her ongoing ability to practice, as well as offer counsel to lawyers who seem to need guidance in this area. Steven D. Wasserman and Mark Hancock are partners, and Natassia Kwan is an associate, at Sedgwick in San Francisco.
Riley Guerin
rguerin@journaltech.com
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