Bar News - April 19, 2013
The Gray Area: Aging Bar Brings Cognition Concerns
By: Kristen Senz
With nearly one-third of New Hampshire Bar members over 60 years old, the aging of lawyers in the state is presenting both practical and psychological challenges for all members of the Bar.
NH Bar President Larry Vogelman talks about a program at the June 21 Annual Meeting that will address the issue in his column.
Examining the demographics of the membership and the issues raised by the so-called "graying of the bar" is the goal of this Bar News series.
The number of attorneys in New Hampshire at or close to retirement age is growing rapidly. Meanwhile, the proportion of Bar members in their prime working years of 41 to 50 has shrunk, and fewer young people are entering the profession.
The NH Bar membership is turning gray, a trend that is expected to continue for the next 15 years, as Baby Boomers age, the job market slowly recovers and the economy pushes retirement to later in life.
Since 1998, the total number of bar members age 61 and older has increased 22 percent, and the number of members between ages 41 and 50 has decreased from 36 percent to 24 percent.
In addition to following national trends, this is a regional phenomenon. The Northern New England states of Maine, Vermont and New Hampshire are all in the top 10 states in the US with the highest median ages for the overall population. This geographic concentration of older people, and older lawyers, is largely due to a massive migration to Northern New England by Baby Boomers in the 1990s.
This aging of the bar presents a number of new challenges, including concerns over a loss of institutional knowledge and experience. But some of the most pressing issues involve older attorneys suffering from age-related cognitive impairments that impact their ability to practice law.
*NH Bar membership data as of April 5, 2013.
In 2007, Supreme Court Rule 58 created the New Hampshire Lawyers Assistance Program (LAPNH) to provide "confidential, meaningful assistance to lawyers, judges, law students and their families in coping with alcoholism and other addictions, depression, and other personal or professional crises."
Increasingly, those "other personal or professional crises" have come to include situations in which colleagues and family members realize that a practicing attorney has been practicing too long.
LAPNH Executive Director Cecie Hartigan said with each passing year, she is hearing about more situations involving aging issues. These types of calls to LAPNH (877-224-6060) often result in "labor-intensive" crisis interventions where she works with family members, colleagues and the practicing attorney. It’s usually unpleasant for everyone involved, but it’s important, to protect the interests of the public and the integrity and reputation of the attorney, and in some cases, his or her firm.
"The cases are very difficult," Hartigan said. "No one wants to be a lawyer in the position of having to defend themselves."
Concerns over health care confidentiality often make the process even more complicated, Hartigan has found.
"Getting family members involved is good, but that has to be done in the confines of confidentiality," she said. "These are the intricacies of it that experience teaches us. We’re learning what roadblocks to expect and how to preserve the interest of the public and the interests of the practicing attorney."
The complexity of weighing the public interest, the Rules of Professional Conduct, personal relationships and an aging attorney’s "reserve functioning" – a term used to describe the ability to at times continue high-level processing while overall cognitive abilities remain impaired – creates a number of ethical quandaries for aging attorneys and their colleagues. An article in the May issue of Bar News will address these ethical issues in more depth.
Hartigan says one approach to consider would be changing ethical rules to make it easier for colleagues to report concerns about an attorney’s potential impairment without immediately bringing it into the disciplinary process. Maine, among other states, recently took this step, she said.
Dr. Doris Gundersen, a Colorado psychiatrist and member of the Colorado Attorney Regulatory Committee, is scheduled to make a presentation during the morning CLE session at the NH Bar Association Annual Meeting on June 21-22 in Portsmouth. She will also be part of a related panel discussion. The session is designed to give attorneys practical tips for dealing with the complicated and often emotional issues that arise as lawyers near the end of their careers.
On the web: To learn more about LAPNH, visit www.lapnh.org.