Points to ponder

It wasn’t planned this way, but it turns out this issue of Canadian Lawyer touches on a variety of complex issues lawyers of all kinds can face in their practices.

The Law Office Management piece by Luis Millán tackles perhaps one least talked about but that can affect any and all practitioners as they age: dementia and other types of cognitive impairments. Everyone’s legal career relies primarily on their intellectual abilities. You needed them to get through your undergrad, your LSATs, law school, articling, the bar admission process, and finally through your entire legal career. Thinking like a lawyer is what makes you a lawyer. Being able to understand intricate issues, find holes in others’ arguments, craft ironclad contracts, negotiate, litigate, mediate — it all requires your mind to be sharp. So what happens when it begins to dull?

As Millán points out: 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 brain disorders doubles every five years after the age of 65. With many in the profession getting older and wanting to practise longer, problems are certain to arise. The article explores the difficult questions law societies have to start exploring in order to fairly deal with lawyers facing cognitive impairments that are having a negative effect on their practices and clients. But while the regulators are wrestling with it, so are many law firms, colleagues, and friends of those who they see suffering. Often those on the outside looking in see the problems long before the person afflicted. Saying something and trying to intervene before matters get out of hand should not be considered interfering but rather an important step in maintaining your friend or colleague’s dignity and reputation. Do what you can.

The other issue raised in this edition is much more practice focused. “Hoodwinked,” this month’s cover story, is a real eye-opener as to how unsuspecting lawyers can be scammed by unsavoury private investigators. In this case, the unfortunate tale of a family law client yields a critical lesson: when using PIs in cases be sure to do some background checks and make sure they are of good character and well-regarded. Both you and your clients will benefit in the long run.

Philip Slayton’s Legal Ethics column tackles an issue that’s much trickier to resolve: unscrupulous clients, usually large and multinational, that are willing to disregard the human rights of workers and others in developing countries in the quest for profits. What can a lawyer or law firm do? So far, he says no one is doing very much other than talking about it (a bit). But an Ontario court’s decision to allow a lawsuit by locals in Guatemala against Hudbay Minerals Inc. over alleged abuses at its Guatemalan project to proceed in Canada under Canadian law could change all that.

Lastly, I’ll call out this month’s wills and estates report, “The executor’s challenge," which also raises another thorny issue for lawyers: What to do when a deceased’s instructions in the will are likely to lead to some heated battles between beneficiaries and one of them is also the executor. It happens frequently enough that the courts have weighed in but are there ways for lawyers to help fend off these wars or at least make sure the executor will be an impartial party and not find themselves in an untenable position once they try to execute the deceased’s wishes?

These articles give you lots to ponder on the role of counsel. Let us know your thoughts on any or all of them.

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