Robert Fritzshall had to be pushing 80, Bethany McLean thought, so she was a little surprised to hear him talk about expanding his law practice.
His office was a bit dusty and cluttered with papers. There were files on the floor. She was concerned that he didn’t see the need to carry malpractice insurance. But she doesn’t remember anything being a red flag.
“He was charismatic, enthusiastic,” she said. “A little eccentric.”
Besides, she needed the job.
The global financial crisis hadn’t eased up. Despite graduating near the top of her class and serving on the law review, she’d been biding her time at a Chicago-area WhirlyBall, booking children’s birthday parties.
And he needed some help. Fritzshall & Associates comprised only Fritzshall, a legal intern, and his legal secretary, after the previous associate departed suddenly.
McLean was thrilled when he extended her an offer, even if it was part time. When he agreed to get malpractice insurance, she accepted.
It looked like her break.
But within weeks, McLean would realize that Fritzshall was no longer capable of managing his practice. His cases were in disarray. Expanding was a fantasy. She recognized the signs of dementia from her grandmother’s decline.
The experience would be the most harrowing and painful of her career. But it’s one that’s becoming a growing challenge confronting a profession in which many are working into their 70s and 80s.
Over the last ten years, the number of lawyers practicing over the age of 65 has increased more than 50%. In 2020, roughly 14% of American lawyers were over 65, compared to 7% of workers generally. Meanwhile, more than one in nine people over 65 are diagnosed with Alzheimer’s, the most common type of dementia. The risk increases dramatically with age.
Recent, comprehensive data on how often disciplinary bodies and lawyer assistance programs confront the issue is non-existent, and there’s no way of knowing how often colleagues intervene without assistance from a professional organization.
But Diana Uchiyama, executive director of the Illinois Lawyers’ Assistance Program, says she’s seen a significant increase in outreach related to cognitive decline in the last year. She’s had at least two such calls in recent months as lawyers emerge from a year of pandemic-induced isolation.
Lawyers who are relatively high functioning in early stages of dementia are often in denial about the need to step down, said Alex Yufik, a forensic psychologist who has worked on such cases. They’re adept at hiding it, tapping their intellectual reservoirs to redirect conversations when they’re confused or unable to answer questions, he said.
Lawyers and other professionals often develop “routines, practices, conversational and social skills over many years, which are reinforced and rehearsed over a career to the point where they can function almost automatically,” said Kendra Basner, a partner at O’Rielly & Roche LLP who counsels clients on legal ethics.
Colleagues are generally ill-equipped to distinguish between signs of of normal aging and something more. And the decision to intervene can be a heartbreaking and even risky one, especially if the aging lawyer is a friend, mentor, boss, or someone powerful in the profession.
Getting involved in a case of substance abuse or mental health problems can mean saving someone’s career. In the case of progressive dementia, intervening almost always means ending one.
“Even when the issue is right in front of their faces, many find excuses to avoid having the uncomfortable conversations and making the hard decisions,” Basner said.
Tish Vincent, chair of the American Bar Association’s Commission on Lawyer Assistance Programs, said it’s partly a cultural issue of lawyers tending to think they’re invincible.
Lawyers “need to stop encouraging denial,” said Vincent, who is both an attorney and a clinical social worker.
Spotting The Issue
Frederick Emery Jr., an Assistant U.S. Attorney in Maine, was within a year of retirement when his colleagues started to notice something wrong.
When they elevated their concerns to agency officials, they were told that “if there were no appreciable performance issues,” they should just “monitor the situation as the AUSA progressed toward retirement,” according to a 2015 ruling by a U.S. district court in Maine.
Much of Emery’s case load was transferred to another attorney within a few months. But it was already too late.
He had botched an IRS dispute with a bankrupt taxpayer because of dementia, the government said in an appeal asking the district court to set aside Emery’s loss. The underlying case involved more than $500,000 in tax liabilities.
The government eventually confirmed that Emery had been diagnosed with frontotemporal dementia, coupled with amyotrophic lateral sclerosis, or ALS. Three physicians agreed that the onset was prior to the summary judgment proceedings, the court said.
But it still declined to undo the bankruptcy court’s summary judgment order discharging the debt. The government’s argument about Emery’s mental decline came too late. The IRS ultimately abandoned its efforts to challenge the bankruptcy court’s ruling.
Emery had been “a responsible and highly respected member of the bar and the bankruptcy court for many years,” the court said.
Cognitive Reserves
Forensic psychologist Yufik handled a case involving an 85-year-old attorney, whom he said he couldn’t identify for confidentiality reasons, when he worked at the Elder Abuse Forensic Center in Los Angeles.
An auditor reviewing financial documents noticed signs of neglect in an estate the lawyer was managing. The lawyer’s daughter also called the center, saying her father was bouncing checks and falling behind on monthly bills. She was worried that her father might be the victim of financial abuse.
She was right: Yufik said he soon discovered that two former clients had persuaded him to sign documents handing over control of his finances. When his daughter presented the documents to her father, he told her he didn’t recognize them.