"Graying of the Bar" fueling concern in court

This story was published April 09, 2006 in the Seattle Times. By Marsha King - Seattle Times staff reporter.

The client complained that the older lawyer wasn't paying attention to the case -- that he didn't file court papers in time, open mail or return phone calls.

The state bar association asked the lawyer to respond. When he didn't, a face-to-face meeting was set up. But the confused lawyer got lost and had to be helped to the appointment. He showed up wearing an old suit and graying T-shirt.

After talking with him for an hour, "It was clear also to me that this gentleman needed further assistance," said Jennifer Favell, a mental-health professional with the state bar association's lawyer-services department. "That was very sad and troubling for all of us."

Historically, cases such as this -- of an older, mentally impaired lawyer still practicing -- have been uncommon enough, or managed well enough behind the scenes, not to pose a significant risk to the public.

But "the public is starting to bring some of these things to our attention," Favell said.

The so-called "Graying of the Bar" -- officially under way this year as the first wave of baby boomers turns 60 -- is fueling concern that incompetence due to declining skills, failure to keep pace or dwindling mental acuity may soon rise in the legal profession. It's a highly sensitive issue in a profession that traditionally honors its elders for long careers.

And, in fact, many practicing lawyers remain sharp and effective well into their later years. When there are impairments, though, what's at stake for clients can range from a botched defense or an unfair divorce settlement to a lost claim for personal injury.

Firms have their own legal liability to consider, and an aging attorney may face a black mark at the end of an otherwise unblemished career.

"We've had a few cases here in Washington," said Seattle attorney Kurt Bulmer, whose practice is largely devoted to defending attorneys who have been brought up before the bar. "There's no question we're going to have a lot more as the baby boomers work their way through."

Of the state bar's nearly 26,000 active members, about 66 percent are age 41 or older, and almost 10 percent are older than 60.

The fledgling debate is part of a broader issue about how to deal with the physical and mental impairments likely to show up in an aging work force.

"I think all professional groups that have the public welfare at stake need to have some system in place," said Dr. Murray Raskind, director of the University of Washington Alzheimer's Disease Research Center. "We have a lot of people in both the medical and legal professions who are practicing into their 70s and 80s."

The biggest risk factor

Regardless of intelligence or education, age is the biggest risk factor for developing Alzheimer's disease, which afflicts 10 percent of people older than 65 and up to half of those older than 85.

Over the past few years, Bulmer has handled several cases where age and dementia were factors, including the case of an elderly lawyer with advanced Alzheimer's who was going to the office every day.

A family member sought advice on how -- short of having his license taken away -- to get him to stay home.

"Who wants to take someone who's done nothing wrong, but getting older, and put him through the discipline system," said Bulmer, who got the bar to take away the attorney's license but also to transfer him to honorary status.

Given the impending demographic boom, two national lawyers' groups are studying how state jurisdictions that regulate lawyers can best deal with age-related impairments.

Of greatest worry are older lawyers who aren't ready to retire and who work alone or in very small firms with little oversight or backup to protect clients.

A few states, including Washington and Oregon, have created rules and alternatives to formal discipline in dealing with all kinds of impairments. They have trained staff on the symptoms of dementia, developed retirement counseling programs and offered assistance on closing a practice.

Seattle attorney Art Lachman, who advises law firms on ethics and liability issues, said it's a delicate matter. While lawyers must be treated with dignity, "We do have a duty to make sure people who are serving clients are serving them well."

Most attorneys don't want to practice beyond the time they're capable, said Dudley Panchot, head of the state bar's senior lawyers section, who recently celebrated 50 years in practice. He has told his colleagues: "If I start to slip my cogs, be gentle, but show me the door."

Still, he's not persuaded that any cataclysm is near because a lot of lawyers are getting older. "I will argue that the population is better served by having lawyers around who've spent some years in practice."

At age 76, Murray Guterson believes he's the oldest criminal-defense attorney still practicing in King County. Certainly he's one of the most distinguished, with a career spanning 53 years.

Guterson says he'll know it's time to retire if his health becomes a problem or if it gets down to having no cases.

"I think my mind is as good as ever," said Guterson, who still takes a few cases, though not near the 30 or 40 cases he once managed at the same time.

Often, people he runs into will ask: "How's retirement going?"

"Well, I'm not retired," replies Guterson, who loves criminal law so much he wishes he could start over again.

Rewriting the rules

A few years ago, the state bar rewrote its rule about how to deal with incompetent or impaired lawyers, in some cases allowing a guardian to make decisions regarding a license or related disciplinary proceedings.

Recently, the bar began to refer some lawyers who have come to the attention of the bar's disciplinary department to a mental-health professional to diagnose any age-related impairment so the bar can decide if disability status was warranted.

Last year, the disciplinary staff received training for the first time on how to recognize symptoms of dementia. And a lawyers-assistance program offers confidential mental-health and chemical-dependency counseling to judges, lawyers and third-year law students.

In 2001, Oregon -- where 60 percent of the state bar's members are baby boomers -- started offering lawyers intensive retirement-preparation workshops, motivated in part by reports about the declining functions of older lawyers, said Mike Long, attorney counselor for the Oregon Assistance Program.

Historically, larger law firms have retirement mechanisms in place or quiet ways to deal with impaired older lawyers. And most lawyers decide for themselves when it's time to quit.

One of Seattle's most respected attorneys, Fred Betts, finally tried his last case at age 85, recognizing that he could no longer give it his best. Even so, Betts came to the office nearly every day until just a year before he died at 94 in 2002.

The firm protected itself and watched out for Betts by occasionally having other attorneys review his work, said senior partner John Braislin. "If you want to talk about fading into the sunset, that's basically what he was able to do."

However, as tradition holds, Betts' name is still on the law firm's door.

Grant County public defender out - after big case

This story was published November 20, 2005 in the Seattle Times. By Ken Armstrong and Jonathan Martin - Seattle Times staff reporters.

Randy Smith will remain one of the defense attorneys for teen suspect Evan Savoie.

When Grant County recently settled a class-action lawsuit alleging shoddy work by its public defenders, it agreed not to rehire two attorneys whose work was condemned by plaintiffs.

But one of the two attorneys, Randy Smith, will apparently keep the court-appointed clients he already has - including Evan Savoie, a teenage murder defendant facing trial in April in one of the most highly publicized cases in Grant County history.

Savoie and a co-defendant, Jake Eakin, are believed to be the youngest murder defendants to be tried as adults in Washington state since the 1930s. They were charged with stabbing and killing Craig Sorger, 13, on Feb. 15, 2003, in Ephrata.

Savoie and Eakin were 12 then and are 15 now. Eakin pleaded guilty last spring to being an accomplice to the killing and was sentenced to more than 14 years.

The case has received attention not only because of the defendants' ages, but because of concerns about whether they could get a fair trial. The case brings together a trial judge who has been censured for incompetence, a prosecutor convicted of a drug felony and a public-defense system that is among the state's worst.

The identities of Smith and the other attorney named in the class-action settlement were to be kept a secret, at the county's request. But the ACLU of Washington, a plaintiff in the lawsuit, attached a sealed document to copies of the settlement agreement it e-mailed to several media outlets, including The Seattle Times. An ACLU spokesman says that was inadvertent.

Smith would not answer questions for this story.

Trouble at courthouse

Last year, two of Grant County's chief public defenders were disbarred. Both were found by the Washington State Bar Association to have solicited money from clients they were supposed to represent for free. Now, the Central Washington county has agreed to prohibit Smith and another attorney from entering into new contracts as public defenders.

Collectively, those four attorneys have represented thousands of felony defendants too poor to hire their own counsel.

"It appears that this kind of shoddy defense has been going on in case after case after case, for year after year," said David Zuckerman, a Seattle attorney who is handling the appeal of a former Smith client challenging his conviction.

In the class-action lawsuit, plaintiffs criticized Smith's work in two cases. They alleged that in one case Smith didn't know how to enter a simple document into evidence, and that in the other he misinformed a client about the consequences of a guilty plea, resulting in a sentence of up to life imprisonment.

Smith holds a public-defense contract that will expire at the end of this year. The settlement requires Grant County not to hire Smith again after that, but doesn't affect the court-appointed clients he already has, said LeRoy Allison, chairman of the Grant County Board of Commissioners.

"It applies to future contracts, not current or past," Allison said. "So the impact of that determination isn't for today's clients or yesterday's clients, but for future clients."

Allison said the prohibition doesn't mean that Grant County agrees that Smith and the second attorney are unsuited to do public-defense work. The condition was demanded by the ACLU of Washington, Allison said.

Support from colleague

Smith began representing Savoie in March 2004. Monty Hormel, a veteran Ephrata attorney in private practice, has also been appointed to represent Savoie. Hormel said Friday that Smith is still on the case - and that he hopes he stays on.

"I have found him to be an astute and excellent young attorney," Hormel said. "It's a pleasure to deal with him."

Grant County Prosecuting Attorney John Knodell also praised Smith, calling him "highly competent."

When Smith received the Savoie case, he had been an attorney for fewer than four years. The Washington Defender Association, which provides training and support for public defenders statewide, offered to help find other attorneys to try the case. But Smith, in a Seattle Times story last year, said outside counsel wasn't needed.

"Is there something about my law degree that is somehow less because I have an office in Grant County?" he asked. "I find that a little offensive. Maybe I'm young and cocky, but I think I'm pretty good."

The other attorney the county has agreed not to rehire is Ted Mahr, a former public defender who no longer holds a contract. Mahr said Thursday that nobody had informed him that the county would not again hire him. He defended his work, saying, "I work very hard and do a good job for my clients."

Sweeping changes

The class-action lawsuit was filed last year by the ACLU of Washington and Columbia Legal Services. It alleged Grant County's public defenders were overworked, unqualified or laboring under contracts that punished them financially for spending time on cases.

The two sides settled this month, with Grant County agreeing to sweeping conditions, including a cap on attorney caseloads. The settlement must still be approved by a judge.

In court documents, plaintiffs criticized Smith's work on behalf of Ramon Murillo, charged last year with the rape of a child. The prosecution's case hinged largely on a statement Murillo made to Moses Lake police.

A detective said Murillo confessed. But the most damning admissions he attributed to Murillo came only after police turned off a tape recorder. Murillo later denied confessing.

When plaintiffs' lawyers asked Smith why he didn't challenge the detective's account, Smith said he trusted the detective to tell the truth. Smith said he and the detective were personal friends who attend the same church and play basketball together.

Murillo pleaded guilty to first-degree child molestation. He was initially sentenced to a maximum of about five years, only to have prison officials notify Grant County that Murillo's conviction carried a mandatory sentence of five years to life in prison, according to court records.

Zuckerman, Murillo's appellate attorney, said the prosecutor, judge and Smith all failed to realize that Murillo's plea would result in a possible life sentence.

When notified of the mistake, the court should have allowed Murillo to withdraw his plea or seek other relief, Zuckerman said. Instead, the judge hit Murillo with five years up to life.