In this situation, I agree taking Senior Opposing Counsel aside and telling him to punch his bar card is not the best solution. Speaking with colleagues at his firm, however, is entirely within bounds, in my view. As a matter of collegiality and respect within the bar itself, the issue should not be avoided in the hopes someone else will address it. It needs attention now. It may be that the gentle coaxing of his partners will encourage him to remain friendly with clients and keep within the confines of the office and avoid the minefield of the courtroom. There is a nice presentation at http://www.abanet.org/media/youraba/documents/attorney_impairment.PPTwhich rehearses why these concerns are legitimately beyond any individual’s ability to handle. “I took a year of tax law 25 years ago, and if someone hands me a tax case I immediately turn it over to a specialist. Why on earth would I think I could handle something like this internally?” That’s the idea. There are specialists who can give you the information you need to help find a solution for Mr. Partner.

If it were you, who would you want to have break the news?

Perhaps the hardest aspect of this for many boomer attorneys is the simple act of acknowledging the home stretch of a career. The general population barely understands that dementia is an organic illness. Willpower is not enough to overcome it. A pill doesn’t fix it. There are different kinds of dementia, which affect different parts of the brain and thus invoke different behaviors and deficiencies. It is difficult to generalize about them, and each individual will have their own unique presentation. Most functional decline can be arrested, but not reversed. If you think of the brain as a neural network, a web of interconnected nerves tying your thoughts and memory together, some dementias cut the threads of the web until they lose their ability to retain anything. Some dementias prevent the making of new memories, but leave long term memory undisturbed. Some affect language centers in the brain.

Any one of these could be viewed as the kiss of death for those blessed in the art of communications, logic, and argument. The truth is, indeed, difficult to bear. But, as a profession, it is incumbent upon us to design the best set of professional rules, guidelines, and assistance for the impaired that we can, buttressed with an ethical viewpoint of enlightened self-interest among the members of the bar itself.

I’m 38. This is going to be my generation’s issue to manage for the next twenty years. My colleagues and I will be next in line to handle the fallout of this demographic phenomenon. I agree with the comments above that this issue needs dramatically more attention, and sooner rather than later. By reaching out for help among a different type of psychological professionals – neuropsychologists – we can learn a lot about what to expect from our brothers and sisters of the bar as they age. We can do what is necessary to build and extend LAP services across the country to incorporate dementia and age-related cognitive decline.

This issue is upon us now.

I do not want to let the attention fade from this critical topic of the shifting demographics of the legal profession and the implications for all concerned — including the graying lawyers, their firms, and their clients. The attention may in fact be …

Your statement “it really didn’t matter because there was no jurisdiction” is interesting. If a competent lawyer would have never brought this case because of the jurisdiction issue (or would have withdrawn sooner), then Overtimer’s client was hurt, as was your client (assuming you don’t work for free), and the court system, which had to expend resources.

2) if we’re going to have mandatory retirement for judges, why not for lawyers? 56 years sure is a long time to practice law.

(1) If we do not have some kind of mandatory retirement age for judges, we surely need a fair, frequent and effective certification system for judges past a certain age — one not fueled by “politcal” motives or bureaucratic favoritism, or stymied by the power of a particular judge. How likely is it that such a system could be achieved?

Mandatory retirement rules clearly have advantages and disadvantages, but our society has to decide whether the pluses are worth the chance of losing talented judges. It is hard for me to believe that any individual judge (or partner, or CEO, or employee) — no matter how bright and wise — is irreplaceable.

(2) “Interventions” with Overtimers would preferably be done initially by those who know him or her well, and done informally at first. If no one steps up to fill that role, we need well-publicized Lawyer and Jurist Assistance Programs that would step in. A lawyer who has firsthand knowledge that another member of the bar is no longer capable of being consistently competent could then call the local LAP and turn the matter over to a well-trained, sympathetic LAP volunteer or staffer. LAP would have to be willing to follow-up if they concur that the lawyer’s fitness is questionable, and make referrals to the appropriate grievance committee.

I wouldn’t want to rely on judges to start the LAP or complaint process, or to take a no-longer-fit lawyer aside. And, I’m not sure — if the person you have described is clearly not fit to practice — that “not interfering” could be thought of as the “most ethical” response from a lawyer who sees the unfitness demonstrated firsthand. Too often, “most polite” or “least awkward” is confused with “most ethical” by colleagues who don’t want to make the hard choices that a self-regulating profession requires.

2) A litigation matter in front of a senior judge (federal). Sharp as a tack. Way better than most of his peers. There really wasn’t even the physical decline! Although he was quite old, he was clearly still in his prime. As older judges often do (and really have the right to), he had his pet peeves, but was very funny about making them known.

I’d hate to see that judge (senior status, but very active) be pushed out merely because of his age.

I also don’t know if reporting impairment due to age is really always the most ethical solution. In my case, as opposing counsel, should I have approached him, told him he was too old, and then reported him as impaired due to age-related issues? (That’s really what it boils down to) I really thought that best left to someone else. I was patient, not mean or aggressive, and really thought if the judge thought there was a problem, he’d have words with counsel. In my opinion, not interfering was probably the most ethical action I could have taken.

Carolyn