Bloomberg
‘A Preventable Mess’: How Dementia Takes Toll on Aging Lawyers
(Bloomberg) — Robert Fritzshall had to be pushing 80, Bethany McLean thought, so she was a little surprised to hear him talk about expanding his law practice.His office was a bit dusty and cluttered with papers. There were files on the floor. She was concerned that he didn’t see the need to carry malpractice insurance. But she doesn’t remember anything being a red flag.“He was charismatic, enthusiastic,” she said. “A little eccentric.”Besides, she needed the job.The global financial crisis hadn’t eased up. Despite graduating near the top of her class and serving on the law review, she’d been biding her time at a Chicago-area WhirlyBall, booking children’s birthday parties.And he needed some help. Fritzshall & Associates comprised only Fritzshall, a legal intern, and his legal secretary, after the previous associate departed suddenly.McLean was thrilled when he extended her an offer, even if it was part time. When he agreed to get malpractice insurance, she accepted.It looked like her break.But within weeks, McLean would realize that Fritzshall was no longer capable of managing his practice. His cases were in disarray. Expanding was a fantasy. She recognized the signs of dementia from her grandmother’s decline.The experience would be the most harrowing and painful of her career. But it’s one that’s becoming a growing challenge confronting a profession in which many are working into their 70s and 80s.Over the last ten years, the number of lawyers practicing over the age of 65 has increased more than 50%. In 2020, roughly 14% of American lawyers were over 65, compared to 7% of workers generally. Meanwhile, more than one in nine people over 65 are diagnosed with Alzheimer’s, the most common type of dementia. The risk increases dramatically with age.Recent, comprehensive data on how often disciplinary bodies and lawyer assistance programs confront the issue is non-existent, and there’s no way of knowing how often colleagues intervene without assistance from a professional organization.But Diana Uchiyama, executive director of the Illinois Lawyers’ Assistance Program, says she’s seen a significant increase in outreach related to cognitive decline in the last year. She’s had at least two such calls in recent months as lawyers emerge from a year of pandemic-induced isolation.Lawyers who are relatively high functioning in early stages of dementia are often in denial about the need to step down, said Alex Yufik, a forensic psychologist who has worked on such cases. They’re adept at hiding it, tapping their intellectual reservoirs to redirect conversations when they’re confused or unable to answer questions, he said.Lawyers and other professionals often develop “routines, practices, conversational and social skills over many years, which are reinforced and rehearsed over a career to the point where they can function almost automatically,” said Kendra Basner, a partner at O’Rielly & Roche LLP who counsels clients on legal ethics.Colleagues are generally ill-equipped to distinguish between signs of of normal aging and something more. And the decision to intervene can be a heartbreaking and even risky one, especially if the aging lawyer is a friend, mentor, boss, or someone powerful in the profession.Getting involved in a case of substance abuse or mental health problems can mean saving someone’s career. In the case of progressive dementia, intervening almost always means ending one.“Even when the issue is right in front of their faces, many find excuses to avoid having the uncomfortable conversations and making the hard decisions,” Basner said.Tish Vincent, chair of the American Bar Association’s Commission on Lawyer Assistance Programs, said it’s partly a cultural issue of lawyers tending to think they’re invincible.Lawyers “need to stop encouraging denial,” said Vincent, who is both an attorney and a clinical social worker.Spotting the IssueFrederick Emery Jr., an Assistant U.S. Attorney in Maine, was within a year of retirement when his colleagues started to notice something wrong.When they elevated their concerns to agency officials, they were told that “if there were no appreciable performance issues,” they should just “monitor the situation as the AUSA progressed toward retirement,” according to a 2015 ruling by a U.S. district court in Maine.Much of Emery’s case load was transferred to another attorney within a few months. But it was already too late.He had botched an IRS dispute with a bankrupt taxpayer because of dementia, the government said in an appeal asking the district court to set aside Emery’s loss. The underlying case involved more than $500,000 in tax liabilities.The government eventually confirmed that Emery had been diagnosed with frontotemporal dementia, coupled with amyotrophic lateral sclerosis, or ALS. Three physicians agreed that the onset was prior to the summary judgment proceedings, the court said.But it still declined to undo the bankruptcy court’s summary judgment order discharging the debt. The government’s argument about Emery’s mental decline came too late. The IRS ultimately abandoned its efforts to challenge the bankruptcy court’s ruling.Emery had been “a responsible and highly respected member of the bar and the bankruptcy court for many years,” the court said.Cognitive ReservesForensic psychologist Yufik handled a case involving an 85-year-old attorney, whom he said he couldn’t identify for confidentiality reasons, when he worked at the Elder Abuse Forensic Center in Los Angeles.An auditor reviewing financial documents noticed signs of neglect in an estate the lawyer was managing. The lawyer’s daughter also called the center, saying her father was bouncing checks and falling behind on monthly bills. She was worried that her father might be the victim of financial abuse.She was right: Yufik said he soon discovered that two former clients had persuaded him to sign documents handing over control of his finances. When his daughter presented the documents to her father, he told her he didn’t recognize them.The lawyer could chit chat with strangers and recite poetry—which in his younger days, he composed—and was able to dress himself appropriately and prepare meals. But his bedroom was in “complete disarray,” Yufik said. There was uneaten food accumulating, and dirty laundry strewn about. It smelled of urine.Although the lawyer could explain basic legal concepts and understood things like his obligation to pay taxes and the importance of health insurance, he was unsure of where his money was held, how much income he was earning, or whether his bills were being paid. The cognitive decline rendered him an easy target, Yufik said.RoutinesRobert Fritzshall would put on a suit every day and take the train to downtown Chicago like he had for years.He was a creature of habit, lunching at the same restaurants over and over. He would regale McLean, his new associate, with old stories and introduce her to acquaintances around town.Part of the self-denial common to lawyers in the early stages of dementia has to do with how closely their identities are hewed to their careers and professional status. “It’s where they have found success, it’s where their friends are, it’s where they are comfortable,” Basner said.One’s identity as a lawyer is “so intertwined with their sense of self,” Vincent said, they will cling to their professional identities “until their dying breath.”Fritzshall had been a respected member of the Chicago area’s legal community—the prosecuting attorney for the Village of Skokie for 13 years, an arbitrator for 12 years, and president for a time of the North Suburban Bar Association. He also served on Skokie’s Village Board of Trustees, Planning Commission, and the theater board for the Performing Arts Center.But that had all been before McLean met Fritzshall.SidewaysPersonal injury and workers’ compensation cases were the bread and butter of Fritzshall’s practice when McLean joined in July 2010. She was unfamiliar with those areas of law, but didn’t have to study his files for very long to realize something was wrong.He was missing irretrievable deadlines and failing to tell clients about significant developments. He didn’t know several cases had been dismissed for failure to prosecute.In one instance, after he accepted a settlement and opposing counsel filed an affidavit indicating that the parties had reached agreement, Fritzshall denied it.McLean said she found opposing counsel were often frustrated and seemed to think he was playing games with them.Before long, she discovered that about half a dozen attorneys had preceded her at Fritzshall & Associates and quickly left, some within weeks.When she raised her concerns, Fritzshall was aloof.McLean reached out to the Illinois Lawyers’ Assistance Program. Although there were plenty of resources and protocols for lawyers struggling with substance abuse or mental health disorders, she found the state bar at the time seemed to lack any systematic approach for dealing with Alzheimer’s or age-related dementia.“It would have been easier if he had been a drug addict,” she said.Ethical ResponsibilitiesA lawyer’s duty to report or otherwise intervene when another lawyer is impaired varies by state. At least a dozen states have ethics opinions on the topic, applicable whether the impairment is due to substance abuse, mental health issues, or age-related decline, and the American Bar Association has issued its own guidance. Case law may also come into play, depending on the jurisdiction.The ABA’s Model Rules provide at least a rough proxy for most jurisdictions.Among other things, rules may require lawyers to report misconduct that calls fitness or truthworthiness into question. They also demand that supervising attorneys take reasonable steps to ensure subordinate attorneys comply with ethical rules, while prohibiting blind reliance on a supervising attorney’s direction.Most states have adopted some version of the relevant rules. But there are notable exceptions. California, for example, has rejected the mandatory misconduct reporting requirement, which the state’s bar journal once referred to as the “snitch” rule.Even if not required, larger law firms often have protocols in place, including internal reporting systems and monitoring when necessary. But for lawyers working alone or who only have subordinates, it’s a lot less likely there will be anyone able to intervene informally, if at all, before serious issues arise.The Last ResortMcLean eventually gave up on the lawyers’ assistance program and started calling the Illinois Attorney Registration and Disciplinary Commission’s ethics hotline. But she hit a dead end there, too.She knew filing a formal complaint would likely end Fritzshall’s career, and wondered what the consequences would be for her own future. But his clients were real people, and she said she couldn’t just abandon them.Less than three months after she was hired, McLean mustered the courage to tell Fritzshall she intended to resign and report him to the disciplinary commission.“I figured, if going to the ARDC would do me in, this wasn’t the career for me,” she said.She had him on speaker phone, with his intern at her side. The intern had been working for him for about a year and adored him, McLean said. At her fingertips was a list of his active cases—at least 20—detailing the errors she’d identified, along with approaching deadlines.She told him she was confident that the ARDC would know whether her concerns were warranted.“He turned on me,” she said.DenialIn his formal response denying the allegations, Fritzshall stated, in essence, that McLean was inexperienced and simply didn’t know what she was talking about.She remembers reading it and feeling disheartened, like it had all been “a stressful waste of time.”The ARDC administrator filed a petition against Fritzshall alleging incapacity in August 2011. Fritzshall was initially responsive, but after he stopped appearing at conferences or otherwise complying with the investigation, the allegations were eventually deemed admitted.McLean didn’t hear from the ARDC again until they called to ask her to testify at his hearing in June 2012. By then, Fritzshall had been diagnosed with Alzheimer’s-type dementia, according to a letter from his physician that’s referenced in the hearing board’s report.More issues had surfaced. Another associate quit after three weeks when Fritzshall couldn’t afford to pay her. He’d stopped paying rent on his office space. He’d overdrawn his trust fund account multiple times. He’d even bounced a check for $31.71 to a court clerk.His wife had been encouraging him to retire, to no avail, according to testimony at the hearing.When McLean testified before the hearing board, she remembers one member asked something to the effect of, “You left the clients? You just quit?”I called you first, she said.HindsightIn hindsight, there were perhaps earlier signs of Fritzshall’s cognitive decline.In 2005, he’d been suspended for six months, stayed by probation after one month. He’d mismanaged client funds, failed to pay medical lienholders in a timely manner, and misrepresented to an administrative law judge that he had authority to settle a matter when he didn’t, according to the disciplinary findings.Fritzshall told the hearing board that he didn’t remember making the misrepresentation, but admitted he lacked his client’s authorization at the time.Although the misrepresentation was ultimately found to be dishonest, he wasn’t found to have engaged in any fraud or deceit. His trust account had never gone negative, and he’d never written a bad check. Although there were a handful of significant delays in paying lienholders retained for client cases, they all ultimately received the money they were owed.No clients complained or testified against him. The client whose case he’d settled without permission ultimately accepted the same amount of money. When her bankruptcy estate paid him about $16,600 in fees, he cut her a check for about $10,700. He told the hearing board he just wanted her to have it.His mismanagement of client funds was attributed to bad bookkeeping.The review board cited numerous mitigating factors in issuing him a lighter penalty than the conduct otherwise warranted. It was Fritzshall’s first disciplinary action in his 50 years of practicing law. He had already modified his bookkeeping practices and reduced his caseload.The commission also considered the implications of a lengthier suspension: Fritzshall had told them that at his age, he’d be unable to rebuild his practice if suspended for a year.His probation, which he completed successfully, was conditioned on implementing new trust account procedures.The Last ActIn May 2013, Fritzshall was finally placed on disability inactive status. He died in hospice care in October 2015. He was 86.While the hearing board report and Illinois Supreme Court order adopting the board’s recommendations are public, the underlying record of Fritzshall’s proceeding is sealed. The ARDC, citing confidentiality rules, said it couldn’t comment.By the time of the hearing, Fritzshall—with the help of his wife, who was by then his power of attorney—had sold his practice and moved to Wisconsin.The lawyer who purchased his practice had spoken to him after taking over. She told the board that sometimes he was still “very lucid and at other times not.”Two weeks before Fritzshall’s hearing, the Illinois Supreme Court had modified its rules “to allow lawyers facing minor misconduct charges to petition the Court for permanent retirement status.”The change was made “in response to the challenges presented by an increasing population of aging lawyers” in order to provide “a reasonable and dignified option for senior lawyers who should retire from the practice of law while preserving their dignity and hard-earned reputations,” according to the ARDC’s 2012 annual report.But given the seriousness of the ultimately uncontested allegations against Fritzshall, it’s unclear whether he would have been able to take advantage of the new rule even if he had petitioned for permanent retirement status.‘A Preventable Mess’Bud Rubenstein, now 93, knew Fritzshall for most of their lives. Their fathers were law partners. When they joined the military, they were stationed together in Japan for almost a year. They sold shoes together and even attended the same law school, the University of Illinois at Chicago.Rubenstein said he had no idea that Fritzshall had been living with dementia. Fritzshall visited after Rubenstein moved to Arizona, but he doesn’t think they talked much after 2000.“It’s a terrible thing to practice when you have that disease,” he said, “but you’re not sure when you’re in it.”Rubenstein said he voluntarily retired his own license in 2012.Steven Fritzshall, Robert’s son, still practices law near the same courthouse where his father spent so many years advocating for his clients. Steven didn’t know how his father’s career ended until Bloomberg Law contacted him. He said he was shocked. They had been estranged since 1990, he said.Steven recalled seeing his father on a crowded street near the courthouse once, long after they had stopped talking. Robert didn’t say hello.“He walked right past me,” Steven said. He wondered aloud if his father recognized him.“The whole thing is sad,” he said.“We have an obligation to represent clients to the best of our human ability and with a competent state of mind,” he said. “There’s no excuse, zero tolerance—these are innocent people.”Steven said he hoped his father would have said the same thing.McLean still practices law, as an assistant public defender in Kane County, Ill., just west of Chicago.As frustrating as it was at the time, McLean said she’s not bitter about the ordeal. Ultimately, the ARDC pursued the matter, and she recognizes now that there had to be due process, which takes time. She said she just wishes there had been better resources and another way to intervene quickly.She said she feels badly when she thinks about the impact on Fritzshall’s legacy.“He had this whole career, and I was seeing it in its final throes,” McLean said. “It seemed like a preventable mess.”To contact the reporter on this story: Holly Barker in Washington at hbarker@bloombergindustry.comTo contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.comFor more articles like this, please visit us at bloomberg.comSubscribe now to stay ahead with the most trusted business news source.©2021 Bloomberg L.P.
