The Kindest Cut of All : Invoking Denny Crane, Ethical Standards and Intentional Words for Law Practice Transitions

Many more American lawyers than in prior generations are working longer, in some cases substantially into old age, for economic and assorted other reasons ranging from egotism to craving mental stimulation that only practice can afford them. Progressive dementing illnesses loom as threats to these practitioners' continued endeavors and the essential ethical obligation of competent representation. This paper summarizes the salient “rules” or “standards” of conduct applying to senior-in-age counsel. The author ruminates about malpractice implications for employers of attorneys exhibiting symptoms of PDIs affecting their competence, asking whether attorney ethical rules dictate the malpractice standard of care in such situations. The author further examines in brief the impact in private practice of shareholder agreements provisions on departure, and asks whether ethical policies affect those in public service likewise.Proposed ABA Resolution 103 promoting the Model Impairment Policy for Legal Employers urges all legal employers to lead by adopting its basic principles. That Model Policy contains an admonition that legal employers commit to assisting their employees in obtaining treatment when needed. Impairment of a legal employee, due to substance use or other mental health disorder, including cognitive impairment or dementia, adversely affecting the individual's well-being and “the legal employer's ability to serve clients capably and responsibly.” The author examines whether this proposed model policy affords greater protection of the public and of attorneys remaining in practice, and what policies legal employers might implement to supplement the Model Impairment Policy's intentions