The Oklahoma Bar Journal April 2023

Falling or injuring them selves at work Significant and rapid weight loss or gain

ETHICAL AND MALPRACTICE ISSUES

Rule 1.3: Diligence “A lawyer shall act with rea

Often, an impaired lawyer has had a long, successful and well- respected career. However, that does not mean they are insulated from having problems down the road. The following are several Oklahoma Rules of Professional Conduct that may apply to an attor ney who suffers from dementia: Rule 1.1: Competence This rule states that a “lawyer shall provide competent repre sentation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” According to the American Bar Association, the most common ethical problem for a lawyer with cognitive impairment is violating the rule of competence. 6 Much like when a new attorney is starting out, it may be helpful for a lawyer to pair up with another attorney to provide a system of checks and balances.

sonable diligence and promptness in representing a client.” To avoid issues related to diligence, ensure deadlines are docketed so that reminders are provided to attor neys. Set up a tickler system so that the file is regularly touched by the attorney to ensure that a case doesn’t wallow. attorney, Rule 1.4 is the source of the most client complaints. To avoid issues related to communi cation, ensure the attorney is able to explain the case to the client so that they can make informed decisions. Also important to this rule is keeping up with tech nology and different means of communication. Rule 1.4: Communication Regardless of the age of the

RESISTANCE TO THE CESSATION OF PRACTICE Many times, a lawyer’s identity is directly related to their title, their employer and their profes sion. Being a lawyer is a signif icant portion of their personal identity, and it is more than just a job or career. Walking away from that can be a scary proposition. Even in the face of a formal diag nosis of dementia or Alzheimer’s, an impaired lawyer may be in denial and may continue to believe they are still functioning enough to continue to practice. There may also be a real or perceived finan cial need to continue practicing in order to support themselves or their family. Sometimes the prob lem of cognitive decline is ignored until it is too late, and the problem leads to an ethics or malpractice claim that must be addressed.

Rule 1.6: Confidentiality of Information

An attorney who is experienc ing cognitive decline may also experience a loss of inhibition, making them more inclined to divulge confidential client infor mation (knowingly or not).

Given the specialized nature of our work and the opportunities we have to notice the performance of other lawyers, we are in a good position to pick up on and notice cognitive decline in our peers.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

10 | APRIL 2023

THE OKLAHOMA BAR JOURNAL