JLAP: What if our memory (no longer) serves?

Words and language are the tools of the lawyer’s trade. What if we notice we become more forgetful and search longer for the right word or case name than in the past? Is such forgetfulness or “cognitive change” a symptom of Alzheimer’s disease, the most common form of dementia, or other dementia? Are we just experiencing normal age-related cognitive change? Or are other factors causing this cognitive change, such as family stress, a side effect of medication or substance use, untreated sleep apnea or menopausal brain fog? How do we know the difference, and what can we do to help ourselves or others who experience cognitive change to determine what causes it?

Cognitive change due to any cause can occur at any age. However, it is a fact that the risk of being affected by dementia increases with age. One in nine people older than 65 (10.8%) are affected by Alzheimer’s, according to the Alzheimer’s Association. Between ages 65 and 74, it is 5%, but that rate increases to 33.3% of people aged 85-plus. In 2020, 6.6% of the active workforce in the U.S. and 12.6% of active lawyers were older than 65, according to the U.S. Bureau of Labor Statistics. We have to expect that as more judges and lawyers remain professionally active much longer than they used to, more members of our profession will experience cognitive change, and some will be diagnosed with dementia while still working.

In recent years, the Indiana Judges and Lawyers Assistance Program has been approached by lawyers and judges who are concerned about cognitive change in themselves or colleagues. JLAP assists these clients in finding clarity or offers intervention services and advice to the client and their family. This need has required that JLAP staff educate itself and JLAP volunteers about symptoms and causes for cognitive change. Now the organization is also starting to promote education across the state. This article is a summary of its initial findings.

Education is key

It is to our own benefit and that of our profession that questions regarding noticeable cognitive change be part of the general conversation about lawyer well-being. Cognitive changes, no matter what the cause, affect the way we do our work as lawyers and judges.

Education facilitates the conversation and the quality of assistance we can seek for ourselves and for our colleagues. The more we learn, the better our self-monitoring for symptoms and early diagnosis — which is particularly important in the treatment of diagnosed dementia. Being informed also allows us, after receiving a diagnosis of dementia, to prepare a departure from our career that protects our clients and our reputations. That, in turn, gives us the opportunity to make the most of the rest of our lives, and it can help us leave our profession with grace and dignity, and without disciplinary actions and lawsuits.

Assessment and diagnosis are essential

JLAP provides guidance to lawyers and judges who experience cognitive changes. A first step toward accurate diagnosis is a neuropsychological assessment, an in-depth assessment that takes several hours. It results in an accurate picture of one’s cognitive state. Unlike regular psychological assessments, the neuropsychological test battery is adaptable to those in professions like ours: one that requires an advanced education, complex reasoning and verbal problem-solving, and that is populated with professionals who make their living by manipulating language to fine tune their arguments. Such a detailed assessment is key to further medical assessment and treatment. It is an expensive test (about $3,000) as opposed to a few hundred dollars for a regular psychological assessment that is not customized. As with other terminal illnesses, an early diagnosis of dementia can lead to earlier treatment that results in a higher quality of life after the diagnosis. That is why it is important to have conversations about symptoms — with our own doctors if we are aware of cognitive changes, or if we notice cognitive changes in a colleague, conversations with the colleague, their family members or with JLAP if an intervention is necessary to seek help.

Several JLAP clients have experienced relief after such an in-depth assessment and diagnosis. Some found out that their symptoms of cognitive change were caused by other factors that could be treated. Other clients were diagnosed with dementia and were able to rely on JLAP to help them close out their professional activities before any risk of disciplinary action or malpractice occurred, and at a time when they could still make their own decisions.

The importance of being observant

Education in this area requires familiarizing oneself with the basic symptoms of dementia and distinguishing those from normal age-related cognitive change. One example is memory loss that disrupts daily life by forgetting recently learned information vs. sometimes forgetting names or appointments but remembering them later. Another is difficulty completing familiar tasks like putting a grocery list together vs. occasionally needing help with microwave settings or recording a TV show. The report “2023 Alzheimer’s Disease Facts and Figures” available on the Alzheimer’s Association’s website provides an extensive list of such distinctions between symptoms of dementia vs. normal age-related changes.

Familiarity with the symptoms will allow for better self-monitoring and earlier diagnosis.

Any of us could experience cognitive change caused by dementia or other factors at any age. This article is an attempt to highlight the importance of discerning, diagnosing and addressing symptoms early, which is illustrated by the publicity around two prominent judges’ diagnosis with Alzheimer’s disease: In 2009, Karen Williams was the chief judge on the U.S. Court of Appeals for the 4th Circuit. She was diagnosed at age 57 with early onset Alzheimer’s after she experienced cognitive changes and addressed those with her health care provider. Upon diagnosis, she chose to go public and assumed senior status, concluding her judicial work immediately. She explained that she chose to leave the profession because she wanted to preserve the integrity of her own work and that of the court on which she served and decided to make the most of her life post-diagnosis.

In 2017, Richard Posner, a judge on the U.S. Court of Appeals for the 7th Circuit, retired quite suddenly at age 78, citing disagreements with judicial colleagues regarding the treatment of pro se litigants, and after publishing confidential court documents. He made a career change that resulted a couple years later in a civil lawsuit about a contract with one of his employees. Through the lawsuit, it became public that Judge Posner had been diagnosed with Alzheimer’s six months after his retirement from the bench.

These two situations illustrate what a difference it made in the way these two jurists could say goodbye to their profession: One was obviously educated, self-monitoring and sought help and, when diagnosed, exited her job. The other was no less educated but apparently not self-aware enough, and it appears that there was no successful intervention to help him personally and to wrap up a brilliant career with grace and dignity.

Our profession is demanding, and we are expected to fulfill those demands with professional integrity for the benefit of our clients and the public. We owe it to members of our profession to seek safe and confidential advice and guidance, and JLAP is there to do just that for lawyers and judges who experience cognitive change or who are concerned about colleagues who do.•

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Inge Van der Cruysse is JLAP Committee chair and a retired lecturer for Indiana University Maurer School of Law. Opinions expressed are those of the author.