Cognitive Decline: Frequently an Under-Addressed Aspect of Law Firm Mental Health

It goes without saying that a firm has a duty to protect clients, ensure competent representation, and take reasonable steps when a partner shows signs of cognitive decline. That includes internal action (adjusting duties, supervising, or transitioning the partner) and, if necessary, reporting to the law society when the risk to clients becomes material.

The often-delayed internal handling and reporting of cognitive decline to the bar society highlight the emotional complexity: loyalty, respect, and the partner’s identity tied to their work. These dynamics often delay action, despite compassionate intervention protecting everyone—clients, the firm, and the partner’s legacy.

Law societies expect firms to report when a lawyer’s conduct may constitute a serious breach of professional obligations. Reporting when the issue is cognitive decline is not automatic!

Technically, reporting is necessary when:

·      The partner’s impairment creates a real risk of client harm;

·      The partner refuses to step back, accept supervision, or adjust duties;

·      The firm cannot mitigate the risk internally, and

·      There is evidence of actual harm, such as missed deadlines, client complaints, or compromised judgment.

The third bullet is the most frequent obstacle to firms reporting cognitive decline to law societies.

While the goal of the law society is protection, not punishment, the following typical steps that law societies may undertake in cases of reported cognitive decline are often not seen that way by either the professional identified or the firm:

·      Capacity assessments;

·      Practice restrictions or supervision orders;

·      Mandatory medical evaluations;

·      Temporary suspension if the risk is high; and

·      Support for structured retirement or practice wind‑down.

As a result, reporting is tardy if at all.

Cognitive decline is frequently very visible  and, unless being ignored because management does not want to deal with it (frequently there but by grace of god go I mentality), can be found normally in the following four key aspects of a lawyer’s practice:

1.   Performance:

a.   Increasing errors in routine tasks;

b.   Difficulty managing multi-step matters;

c.    Overly risk-averse;

d.   Reduced ability to integrate facts.

2.   Behavioural:

a.   Memory lapses (names in particular).

b.   Losing the thread of a conversation mid-sentence;

c.    Taking longer to review documents;

d.   Becoming overwhelmed by new information or changes, and

e.   They get stuck in their own viewpoint when faced with new information.

3.   Interpersonal:

a.   Avoidance of complex matters;

b.   Heightened irritability or defensiveness;

c.    Second-guessing all decisions that previously were routine, and

d.   Change in professional persona (from meticulous to disorganized).

4.   Practice Management:

a.   Billing issues – drop-in billable hours; inconsistent time entries;

b.   Client complaints (responsiveness, clarity, accuracy).

c.    Missed compliance obligations; and

d.   Technology – difficulty operating systems that they previously navigated easily.

At the risk of a penetrating glimpse into the obvious, cognitive decline is a very sensitive issue that should receive more focus from firms because of its direct impact on:

·      Ethical duties (competence, diligence, communication).

·      Client risk;

·      Professional liability exposure;

·      Reputational risk; and

·      The lawyer’s dignity and career identity.

This absence of timely action by firms results in many adopting a crisis-driven response.

Who is Stephen Mabey?

Stephen Mabey is a CPA, CA, and the Managing Director of Applied Strategies, Inc. His credentials include:

·       Fellow of the College of Law Practice Management (one of 19 Canadians – 276 Fellows);

·       Author of Leading and Managing a Sustainable Law Firm: Tactics and Strategies for a Rapidly Changing Profession and Co-author of Key Performance Indicators For Your Legal Practice: Measuring Success and Driving Growth

·       A founding partner of East Coast Legal Ops

·       More than 25 years in a senior management role with Stewart McKelvey, a 220-lawyer, six-office Atlantic Canadian law firm;

·       Over 16 years of providing advice and counsel to small to mid-size law firms on a broad range of issues;

·       Panelist and facilitator of the Managing Partner Information Exchange ("MPIE") at the annual Managing Partner Forum Leadership Conference held in Atlanta, Georgia, each May and

·       A free group mailing list that circulates articles, directly and indirectly, impacts law firms.

He has been advising law firms for over 16 years on a wide range of issues, including - strategic action planning, leadership, understudy (succession) planning, compensation - both Partner and Associate, organizational structures and partnership arrangements, business development, capitalization of partnerships, partnership agreements, lawyer & staff engagement, marketing, key performance indicators, competitive intelligence, finance, mergers, and practice transitions.

Applied Strategies Inc.'s website contains testimonials from clients describing the value of the services rendered https://www.appliedstrategies.ca/client-testimonials.

Steve can be reached by:

Email – smabey@appliedstrategies.ca

Phone - 902.499.3895