Cognitive Impairment and Lawyers and Judges Who Retire At Their Desks

My Dad is 93 years old.  He retired from his career as a general surgeon over 25 years ago.  He had no cognitive impairment. During his early years of retirement, he reviewed surgical cases for a malpractice insurer and mentored other surgeons.  All through his life, he has continued to read constantly, travel, and play bridge and golf. He became a happy newly-wed at the age of 91.

My Dad comes to mind as I reflect on recent reports about the aging of the legal profession. Many articles have been written about lawyers and judges who work right up until the end of their lives. My Dad definitely was bored in retirement–especially in his late 60s and 70s.  In retrospect, should he have continued working for another decade or two?

Our Aging Lawyers and Judges

Unlike the physical component of being a surgeon, lawyers and judges have cerebral jobs. They can continue to work despite the physical ailments of advancing age.  And many are choosing to do so.

The American Bar Association reported that in 1980, a quarter of the lawyers were age 55 or older; wheras by 2005, over one-third were age 55 or older.

And increasingly, judges are staying on the bench into extreme old age. About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. The same article reports that the number of octogenarians and nonagenarians on the federal bench had doubled in the prior 20 years and eleven federal judges over the age of 90 were hearing cases. Judge Wesley Brown, appointed by President John F. Kennedy, heard cases up until just before his death, at age 104.

The demographics of the federal bench have no counterpart in the state courts. In state courts, judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages.  About 33 states and the District of Columbia have a mandatory retirement age and most set it between 70 and 75 years of age.  In 2009, the Illinois Supreme Court struck down the Illinois statute providing for a mandatory retirement age of 75 as unconstitutional.

Like the rest of the population, judges and lawyers are at risk for memory loss and cognitive impairments as they age. The symptoms of Alzheimer’s, an irreversible brain disorder that slowly destroys memory and thinking skills, usually appear in the mid-60s. According to the Alzheimer’s Association, about 13 percent of Americans over 65 have Alzheimer’s and nearly half of those 85 and older develop it or suffer from dementia.  However, there is evidence that high-functioning professionals, such as lawyers, often mask a decline in professional competence longer than other professionals.

Ethical Implications of Cognitive Impairment

A lawyer who is cognitively impaired has an ethical duty to decline or withdraw from representing a client. Rule of Professional Conduct 1.16(a)(2) states that a lawyer shall not  represent a client if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”

The problem is, the lawyer may not be aware of declining cognitive function in real time.  In all the years I worked at the Attorney Registration and Disciplinary Commission, I never heard of a lawyer being prosecuted under this section. I checked with a former colleague at the ARDC who also never heard of a lawyer being prosecuted for failure to withdraw from representation due to mental condition.

A more likely scenario involving an attorney who may have cognitive deficits is things may start slipping through the cracks, resulting in violations of other ethical rules. For example, disciplinary counsel may receive complaints about a lawyer missing deadlines or failing to return telephone calls, perhaps in violation of the Rules of Professional Conduct involving diligence (1.3) or communication with a client (1.4).

Rather than react after ethical issues occur, are there intervention or remediation techniques a lawyer or her colleague can employ proactively? A draft ethics opinion in Virginia (drawing on ABA Formal Opinion 43-029) states that a supervising attorney who reasonably believes her subordinate attorney is impaired has an obligation to take action before material harm is caused to a client or third person.  The opinion grounds this obligation on the duty of a supervising attorney under Rule 5.1(b) (to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct”). The duty is prospective, and applies even if no violations have occurred.  Trouble is, the problem will likely be noticed by peers of the impaired attorney.  Or the subordinate attorney may notice impairments in the boss.

I could not find any judicial counterpart to these rules.  With the intent to foster judicial independence, federal judges have an appointment for life. Article III of the Constitution allows federal judges to remain in office “during good behavior.” Back when the Constitution was ratified in 1789, the average American lived to be about 40.  The framers didn’t worry about senile judges.  Alexander Hamilton is quoted as having said, “A superannuated bench is an imaginary danger.”  Not so much.

Cognitive Impairment is not a Simple Concept; All Intelligence is Not the Same

There is no doubt that the ability to think and reason independent of prior knowledge—or fluid intelligence—diminishes as we age.  Beginning in our 20s, we can begin to experience a decline in the fluid aspects of our cognitive functioning, such as mental processing speed, working memory, attention span, and abstract problem-solving skills.

However, the ability to draw on and apply accumulated experience and knowledge—or crystallized intelligence——increases as we age, generally plateauing sometime in our 60s and falling thereafter. In other words, we gain wisdom with age.  But the older we get, the slower we become in our ability to operate effectively outside the milieu of what we already know.

Over the first many decades of this century, lawyers and judges have been able to work quite intelligently throughout their careers. Crystallized intelligence was their stock in trade. They were able to expertly understand and apply legal principles and precedent to nuanced situations.

However, the exponential changes of the current time period are unique. Experts agree that changes in our society are coming about more fast and furious than ever before.  According to Edward Walters, who teaches a class on the Law of Robots at Georgetown Law, we are living in the third major revolution (past the industrial revolution, past the information revolution)–the robotics revolution.  This revolution is the first time intelligence software is taking on physical hardware.

I wonder whether the rapid changes of this robotics revolution increase the importance of fluid intelligence in our lawyers and judges.  To properly serve their clients and solve citizens’ disputes, lawyers and judges need to do more than recall the substantive knowledge learned in law school and applied through years of practice.  They also need to understand new technology, how it works, what happens when it doesn’t.  Relying on crystallized intelligence does not help us competently understand the benefits and risks of relevant technology that is changing month by month, if not week over week.  With people living longer due to medical advances and healthier life choices, should there be some type of competency testing to ensure that lawyers and judges have the fluid intelligence to competently serve?

I don’t know the answer to this question, but would love to hear your thoughts in the comments section.  I’m assuming (hoping) that I have my Dad’s longevity genes.  So figuring this out matters.