Lawyers will remember their basic tort law about motor vehicle statutes requiring a driver to look before doing certain things. The case law then required the driver to “look effectively”, and in so doing, exercise the required ordinary care with regard to the normal and obvious risks attendant. Some of you grew up in safer times where homes did not need to be locked and children could play in neighborhoods after dark. As always, things change and the common security mantra now is: “See Something — Say Something.” Where once you might have blithely walked into a dark parking garage, you now need to be alert and safety conscious everywhere. Security people refer to it as having “situational awareness”. Look about you, and look effectively as you go about your daily business.
I do not believe it is a leap for me to encourage lawyers to use the same type of awareness acts in your own offices as you move about there daily. In the world of loss prevention, it is never good to hear that they never knew of an issue. Because in discovery you usually find that someone knew, “or should have known”. All lawyers, and importantly all staff, need to be told to be alert and not to cover or conceal a lawyer’s issues. There is a loyalty trait to do that, but they are not helping the lawyer or the firm. I bet every reader recalls someone with a problem, and someone knew, not telling others about it.
This exists in every office and in any size office. There are always some indicators. It must now become a standard way of doing business to list all deadlines on a master calendar so if someone fails to show for work, others know what is scheduled. Financial and file controls must be strong and redundant so no one can work off the books in your office, or perhaps use personal accounting magic with either client or firm funds. Required receipts and routine inquiries on expenses shall be the norm in your office for all so that no one thinks their personal integrity is at issue.
It is a fact that people have issues, and perhaps lawyers under stress may even have more than normal issues (like an estimated 2 to 3 times more). Add to the normal issues of mental or psychological issues, financial woes, and substance abuse, a new fact of life — aging lawyers. As an example, Virginia noted that about a third of its lawyers were over 54 and 11.5 percent were over 65 (https://goo.gl/dtKKSo). It and other bars have ethics opinions that offer advice to law firms and impose a duty to evaluate its lawyers to prevent having a colleague being impaired. (December 15, 2016 Virginia LEO 1886).
The State Bar of Arizona says every 66 seconds someone in the United States develops Alzheimer’s disease. More than 15 million family and friends are caring for those with Alzheimer’s and other dementias. The Bar there has started offering courses to help lawyers identify these issues. West Virginia is now offering lawyer CLE courses that include competency issues in the legal profession. Progressive Law Practice published an article advocating that Law Schools should monitor students for addiction and mental health issues before graduation. Law.com just started a column “Let’s Address the Elephant in the Law Firm” (https://goo.gl/f8mgwr).
By nature lawyers are an independent lot and resist lots of things, especially when it applies to them. Again, the fact of life is that one lawyer’s actions can bring down a firm. It is in everyone’s interest to be situationally aware of who is doing what, and who might be showing signs of issues which could be of consequence to both the clients and the firm.
Until his death at 102, I shot skeet with a doctor who retired in 1985. I enjoyed his company, but always stood right behind him when he was shooting his new in 1952 shotgun. My wife’s uncle at 101 is active despite retiring in 1965. Nothing prevents a lawyer from practicing as long as he or she wants, but common sense says everyone watches for tells, just like they do with a young bright associate who starts missing work and deadlines. “See Something — Say Something” applies to more than Homeland Security.
I recall the Saturday Night Live character, Debbie Downer. Everything she said was dark and dismal. In this common sense column, I do not seek that title. However, as a young lawyer I recall an exceptionally bright and well-respected older lawyer taking his pants off in the office at 10:00 a.m. to take a nap. It made the distinct impression upon me that perhaps we should have seen some issue with him before that day.