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Idaho’s lawyers are aging. What happens if yours gets dementia or retires?

Dennis Cain, a retired lawyer, now keeps busy by taking classes, serving on a nonprofit board and perfecting his golf game. He plays at Hillcrest Country Club in Boise.
Dennis Cain, a retired lawyer, now keeps busy by taking classes, serving on a nonprofit board and perfecting his golf game. He plays at Hillcrest Country Club in Boise. kgreen@idahostatesman.com

Dennis Cain closed the door of his Boise law practice the day before his 67th birthday. In the more than two years since, he has kept busy, taking classes and serving on the board of an education nonprofit.

“And I play a little more golf than I used to,” he says.

William F. “Bud” Yost III has run a solo law practice for decades. Now that he is 77, the Nampa lawyer is thinking about retirement. He is teaming up with younger lawyers on cases to see if they are good fits for his clients.

He also has stopped wearing a tie.

Idaho Supreme Court Chief Justice Jim Jones will step down from the bench on Jan. 1, after more than 40 years in Idaho’s legal industry. Like other retiring lawyers, the 74-year-old Jones is not going lazily into retirement. He wants to write books, do political commentary, maybe do some pro bono work or consulting.

“I’ve got plans,” he says.

AGING WORKFORCE

Hundreds of Idaho lawyers are 60 and older.

Cain, Yost, Jones and others say they are confident that law schools are producing enough qualified graduates to meet future demand for legal services in Idaho. They are not concerned about an impending lawyer shortage. “I don’t know that we see that generation gap in the legal business,” Yost says.

But the Idaho State Bar says its aging workforce has raised some tough questions. So a Senior Lawyers Transition Task Force — including Cain, Yost and Jones — was assembled to answer some of them:

▪  How do I put together a succession plan, so my clients have representation or my law firm lives on after I retire?

▪  What actions can I take to ensure my clients and their dollars aren’t left in a lurch if I die or suddenly lose the ability to practice?

▪  What is the best approach when a lawyer seems to have Alzheimer’s disease or other dementias?

The task force met for a year. In the summer, it unveiled a 69-page handbook and forms that attorneys can use for succession and contingency planning.

“It’s just like when you die,” Jones says. “You really ought to have a will so that people know what to do with your business — getting it wound up, paying the bills, but more importantly, how do they handle your clients? Lots of people have money in trust accounts with the attorneys, and nobody probably thinks about the fact that they might not be here tomorrow.”

The handbook, adapted from a similar guide in Oregon, handled the first two questions the task force was charged with answering. But the third, about attorneys who are showing cognitive decline? Turns out that is a big deal, and the task force is still grappling with it.

“I think in 2017, we’ll start to meet again and take up again the issue of the lawyer who is impaired, and how to help that lawyer, and to basically protect the public,” Yost says.

Idaho State Bar Deputy Executive Director Mahmood Sheikh says the bar does not know how many Idaho attorneys are dealing with dementia. His impression is that it has become increasingly common in the past few years. Some lawyers have alcohol or substance-abuse problems that stem from, or mask, underlying cognitive issues. And dementia can affect young attorneys as well.

DEALING WITH DEMENTIA

Idaho has about 250 lawyers who are actively practicing at 70 or older. At that age range, almost 14 percent of people have dementia, according to the Alzheimer’s Association. The prevalence of Alzheimer’s in Idaho is projected to increase by 50 percent in the next decade, the association says.

There are some [attorneys] practicing well into their eighties.

Dennis Cain, retired Boise lawyer

Jones says it is “fairly infrequent, but we’ve seen it in the Supreme Court: a lawyer who was a good practitioner and did a good job but comes in on a case and is a little foggy on what the law is, doesn’t know the facts on hand. You don’t want him punished, but you want to have things in place so that people are sensitized to it and can refer him to resources that the bar has available, maybe giving a little counseling.”

That gets tricky.

Many senior lawyers are highly respected in the legal community. They are renowned for their expertise in a certain area. They were the mentors or bosses to a whole generation of lawyers.

“Dementia and Alzheimer’s is so subjective that it’s hard to tell if the gears are slipping or you’re just having a bad day,” Cain says. “Some of these older attorneys are extremely competent.”

Sarah Toevs, director of the Boise State University Center for the Study of Aging, helped the task force by contributing research on how Idaho’s aging legal community compares with the nation’s.

Toevs is not a lawyer but has a brother who is. She was pleasantly surprised by how eager Idaho’s legal community is to support lawyers who have cognitive decline — getting them help and preventing mistakes that could lead to sanctions or malpractice complaints.

She says the task force’s approach is not, “How do we disbar these lawyers?” but “How do we honor these legal professionals in ways that protect their standing in the legal community, but also protect their clients?”

There already are programs in place for Idaho lawyers — and other professionals like doctors and nurses — to receive confidential treatment for substance abuse and mental-health problems. Those programs are open to lawyers with cognitive issues.

HARD TO NOTICE

Cognitive decline among lawyers is not unique to Idaho. Toevs says Boise State University students researched the topic and found it popping up all over the country and in every profession. What is unique about Idaho, she says, is that many lawyers have solo practices.

“In medicine, it is a little bit different, because there is some peer review, formally or informally,” she says.

If a solo lawyer develops Alzheimer’s, it may go unnoticed until there is an episode in a courtroom.

“As a self-regulating profession, [lawyers] need to be very proactive for setting up protocols for when [they] feel individuals are no longer competent to practice law,” she says. “It’s a very complex system an attorney works within.”

Audrey Dutton: 208-377-6448, @IDS_Audrey.This story appears in the Nov. 16-Dec. 20, 2016, edition of the Idaho Statesman’s Business Insider magazine. Click here for the Statesman’s e-edition, which includes Business Insider (subscription required).

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