Today, almost 15% of Canadians over the age of 65 are living with some form of cognitive impairment, including Alzheimer’s and other forms of dementia. It is no shock then, that dementia is similarly found to impact elderly lawyers. With a significant portion of Canada’s legal profession reaching retirement age, dementia, and all of the cognitive impairment disorders that the term encapsulates, requires a strategic response from law societies across the country.
This issue has recently come to the forefront in the legal profession throughout Canada due to a number of disciplinary hearings of lawyers suffering from dementia who, despite their decades of experience, breached their respective professional codes of conduct.
In a recent Canadian Lawyer Magazine article entitled, ‘The ‘indious fog’, author, Luis Millan, discusses the sensitivities and complexities surrounding the impact that dementia is having on the aging legal profession. The issue requires a balance to be struck between protecting the public while treating cognitively impaired lawyers with respect and dignity.
On the one hand, the public must be protected from lawyers who are no longer of sound mind to be practicing law. This is especially difficult with sole practitioners, as there is often no one looking over the quality of their work. On the other hand, however, lawyers who have been practicing for decades, when confronted with failing cognitive functions, will likely have a difficult time coming to terms with their conditions.
Law societies across Canada approach this increasingly relevant issue differently. Some favour a more heavy-handed approach, holding that the concept of general deterrence takes precedence over cognitive impairment, and that breaches of professional codes of conduct cannot be tolerated regardless of what their cause.
Notably, the Nova Scotia Barristers’ Society has launched a program that handles complaints regarding lawyers suffering from a physical, mental or emotional incapacity through an alternative form of discipline. The program is consensual and involves a team of medical and legal practitioners working with the lawyer in question to formulate an agreement that will both protect the public and assist in addressing the incapacity. Where a lawyer’s condition, such as dementia, has no hope for recovery, the program allows for a graceful exit from the profession.
Developing initiatives and programs to adequately ensure public protection while treating cognitively impaired lawyers with dignity and respect will be a difficult feat. Creating awareness of these non-discriminatory and life altering issues, however, is a positive first step.
Thank you for reading.