Originally Published In Michigan Probate & Trust Journal

An attorneys’ competence is essential in the attorney client relationship. We have all known (or at least heard the stories) of an attorney of advanced age who still shows up at the office on a regular basis and handles a few selected client matters.  In fact, one of the attractions to becoming an attorney is the potential to continue to practice into a ripe old age.  But as we also know, with advanced age comes the potential for age-related cognitive decline.   And unlike other healthcare issues that can interrupt an attorney’s ability to do their job, diminished cognition presents unique challenges. 

For one thing, the person experiencing the decline may not know it is happening, and in fact, in its early stages, it may be difficult for others to discern.  Also, a significant number of people who suffer from age-related cognitive decline refuse to acknowledge or accept their condition.  In fact, during the earlier stages of decline, clever people can (and often do) mask their impairments from others.  And yet, even in the earliest stages of cognitive decline, an attorney engaged in a task that challenges their more subtle reasoning and memory skills, may nonetheless be impaired to the point that their continued involvement in a case would implicate their own ethical obligations, and potentially the ethical obligations of those around them.

Perhaps the attorney begins making mistakes on client files and clients complain, or you may observe the attorney’s behavior. What happens in cases where the attorney’s cognitive decline affects the attorney’s ability to adequately represent the client? There are ethical obligations to consider as it relates to professional conduct, and it can lead to potential malpractice claims. 

The Michigan Rules of Professional Conduct indicates an attorney shall not represent a client in which the attorney is not competent to do so. More specifically, MRPC 1.1 states the following: 

Competence. A lawyer shall provide competent representation to a client. A lawyer shall not:

(a) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it;

(b) handle a legal matter without preparation adequate in the circumstances; or

(c) neglect a legal matter entrusted to the lawyer.

Although the rule appears to relate to the attorneys’ skillset and preparation regarding representation, those skills can also be affected by the attorneys’ cognitive decline. As such, an attorney who has reason to know that s/he is experiencing age-related cognitive decline has an ethical duty to take actions necessary to protect the client’s interest, up to and including, withdrawing from a case and retiring from practice.

There’s no doubt that attorneys are smart. If an attorney suffers from cognitive impairments that aren’t easily identifiable such dementia, the attorney will probably deny it. It’s a sensitive topic for most and awkward to address. In my probate litigation experience concerning capacity, I’ve realized that professionals such as doctors and attorneys can mask impairments very well and may become particularly combative when their impairments are pointed out. 

Attorneys or even Judges may find themselves in an uncomfortable position to discuss this topic of cognitive decline with their colleague and encourage them to seek help.  If they observe an older attorney who appears to be making mistakes that could be attributed to age-related cognitive decline, their ethical consideration will arise in MRPC 8.3(a) which provides: “A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.”

Many firms have mandatory retirement of attorneys who reach a certain age, a policy that presumably avoids this concern in most cases.  Yet all of us need to understand our own ethical obligations both to (1) avoid practicing law if we should become cognitively impaired, and (2) intervene if we see colleagues who we have reason to believe are unable to meet their obligation to provide competent legal advice as a result of age-related cognitive decline.

It’s important for us as a legal community to acknowledge that sometimes these issues come up. There are resources available depending on the reasoning for the cognitive decline. A good place to start is to contact the State Bar of Michigan for guidance. 

Citations: 

David L. Hudson Jr., Lawyers and Cognitive Decline, 104 A.B.A. J. 24 (2018). 

MRPC 1.1; MRPC 8.3(a); 

Ernscie Augustin is an attorney at Augustin Law Offices, PLLC in East Lansing, Michigan. Ms. Augustin practices in the areas of elder law, estate planning, estate administration, probate litigation, and family law.