The ‘insidious fog’

The ‘insidious fog’
Illustration: Jeremy Bruneel
Dementia is beginning to creep into the legal profession in the same insidious manner it does in other aspects of people’s lives, sneaking in and leaving hints before constraining regulators and law firms alike to make heart-wrenching decisions. The Barreau du Québec’s disciplinary committee dealt with the issue in the spring when it had to decide the professional fate of a Montreal lawyer with more than 50 years of experience. The lawyer, diagnosed with Alzheimer’s three years ago, faced three counts of breaching the Code of Ethics of Advocates and the Professional Code. “Perhaps Alzheimer’s disease explains [his] conduct,” wrote the three-chair disciplinary panel. “It seems clear the Council must take that into account when sanctioning him.” Though found guilty, all charges were stayed. A Law Society of Upper Canada’s hearing panel was put in a similar bind early this year when it allowed a Toronto lawyer afflicted with the mind-robbing disease to surrender his licence to practise law.

These heart-rending scenarios will likely play out more frequently in coming years. Almost 15 per cent of Canadians over the age of 65 are living with cognitive impairment, including dementia, according to a 2012 study by the Alzheimer Society of Canada. The risk for dementia, a catch-all phrase that refers to a variety of brain disorders, doubles every five years after the age of 65. With the profession greying and more and more senior lawyers putting off retirement, it is becoming clear the legal profession is going to have to come to grips with the sensitive issue of age-related cognitive impairment. “It is high time given the aging of the population that we all begin to look at this very carefully,” says Tim Daley, past president of the Nova Scotia Barristers’ Society.

The numbers cannot be ignored. In Ontario there are more than 5,250 lawyers over the age of 65 or 11.7 per cent of the bar, and 14,000 between the ages of 50 and 65, representing a staggering 31 per cent. In British Columbia it’s much the same story with more than seven per cent of its lawyers reaching retirement age while 20 per cent are between the ages of 55 and 64. In Alberta it is projected that nearly 25 per cent of its lawyers will be seniors in the not-too-distant future. “The good news is that an aging lawyer population means that there is a greater number of lawyers with tremendous experience that have insight and wisdom that could be shared with newer members of the bar,” notes Marian De Souza, the executive director of the Alberta Lawyers’ Assistance Society. “The other side is that as the lawyer population ages, statistically there will be greater numbers that will show cognitive impairment and other medical issues.”

Indeed, the spectre of Alzheimer’s and other forms of dementia facing the profession is harshly brought home by projections made this summer by the Professional Liability Insurance Fund of the barreau: Of the 1,949 Quebec lawyers over the age of 65, about 200 risk being afflicted by what British writer John Bayley called the “insidious fog.”

The increased exposure raises uncomfortable questions that law societies are only beginning to explore. Striking a balance between the need to protect the public while treating cognitively impaired lawyers with integrity and dignity is a complex and delicate exercise, made all the more daunting by the fact lawyers who experience age-related changes in their professional abilities are often in denial or do not recognize their limitations. “Unfortunately, the current rules and procedures for lawyer regulation systems are not as well suited as they could or should be to protect the dignity of those senior lawyers who suffer from agerelated changes in their professional abilities,” states a 2007 report by the U.S. Joint Committee on Aging Lawyers, created by the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers. It’s an observation that holds true in Canada as well. “I don’t think to protect the public we have to be as brutal as in the past,” says Daley.

The heavy-handed approach, however, is still favoured by some law societies, regardless of whether mental impairment gave rise to professional misconduct. The Law Society of British Columbia argued before a hearing panel two years ago that the concept of general deterrence takes precedence over an underlying mental disorder and that breaches of professional conduct cannot be tolerated no matter what their cause. In a remarkable decision dealing with a paralegal diagnosed with depression, hearing panel chairman Larry Banack castigated the LSUC earlier this year for failing to take a leadership role in identifying alternate approaches to deal with practitioners suffering from mental health issues. “This case illustrates the need for the Law Society to consider the ineffectiveness of the existing, limited, blunt regulatory enforcement technique,” remarked Banack. “The public interest in regulatory cases arising out of mental illness can be satisfied by means other than formal disciplinary proceedings.” The LSUC is reviewing the reasons of the case.

Yet some headway is being made, with the boldest initiative emanating from the Nova Scotia Barristers’ Society. Nearly three years ago, it launched a program that recognizes members suffering from a physical, mental, or emotional incapacity who are the subject of a complaint are best handled through an alternative form of discipline. The program is consensual; referrals to the program can come through self-referral, the executive director, or the complaints investigation committee. The program is manned by a seven-member fitness-to-practise committee comprised of five lawyers (including two who were nurses in a previous career) and two doctors who review medical reports and work with the affected lawyer to design an agreement that will both protect the public and assist in addressing the incapacity.

“In the case of a permanent disability or impairment such as Alzheimer’s or dementia, if there is no hope of recovery then the program offers the potential of a graceful exit,” says Daley. Otherwise, the agreement can take the form of an interim agreement significantly restricting the lawyer’s practice or a voluntary interim cessation of practice. But if the lawyer fails to co-operate at any step in the process, the matter is referred to the regular complaints process. The same holds true if no capacity issue was identified after a medical assessment. “We recognized as a result of several cases that we had dealt with that we were trying to put a round peg into a square hole, that we knew there were medical issues and had no ability to order medical assessments,” says Darrel Pink, the NSBS’ executive director. “We think it makes a lot of sense to look for a consensual program that allows a lawyer to get help and at the same time make sure you are protecting the public.” According to the society’s 2013 annual report, there are currently three matters before the fitness-to-practise committee.

Other law societies have taken a different tack. The barreau relies heavily on its professional inspection department to detect or keep track of senior lawyers. In cases where a lawyer was flagged by a colleague, a family member, or even a judge, the barreau sends an inspector “of a certain age” to ensure the senior lawyer is at ease, with the hope that a “relationship of trust” can be forged, says Geneviève Lefebvre, head of the barreau’s professional inspection department. Often, following such a visit, senior lawyers take it upon themselves to consult a doctor to examine their cognitive abilities. “Very frequently after a professional inspection, the lawyer will reflect, and so the solution is reached by means other than suspension or by limiting his practice.”

The Law Society of British Columbia, too, depends to a certain extent on its trust assurance program to keep an eye on senior lawyers. But it has also set up a wellness working group that will examine issues to “improve the uptake and effectiveness of lawyer wellness programs,” says Alan Treleaven, director of education and practice with the LSBC. Part of the mandate of the wellness working group, which is expected to issue recommendations sometime next year, is to examine issues relating to the greying of the profession. “Our strategic plan is to do better in the area of lawyer wellness programs, to be proactive as opposed to reactive,” says Treleaven.

But overall it appears Canadian law societies are pinning their hopes on senior lawyers resorting to lawyer-assistance programs or drawing up succession plans to deal with the plethora of issues that may arise from age-related cognitive impairment. Much more needs to be done. “We need to create awareness,” says Martin Sheehan, a partner with Fasken Martineau DuMoulin LLP who was a panellist in a seminar on this issue during the barreau’s annual conference this summer.
“People need to be able to recognize some advanced signs of dementia to be able to intervene. The issue is however that many lawyers practise on their own or in a setting where there are not many people to look over what they are doing — and it therefore becomes even more important to create some awareness.”

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