Tuesday, November 28, 2017

Wellness: Three ways to help with mental health and addiction in lawyer discipline proceedings

Darryl Singer
For all the law society’s talk about harassment, discrimination and Statements of Principles — laudable as these are — there remains one group that is left out of the discussion and as a result faces unduly harsh treatment in law society discipline proceedings: those with addiction and mental health (AMH) issues.

It might seem trite to suggest that AMH issues have an impact on one’s ability to run a law practice in an organized and ethical manner. And yet the law society investigators and discipline counsel typically take the same approach to licensees with AMH issues as they do to lawyers whose bad behaviour is deliberate and calculated.

In reality there is a major difference between deliberate misdeeds  — Javad Heydary, who calculatingly disappears with $3 million of a client’s money or the lawyer who uses his trust account to assist in laundering money — and where AMH issues result in misconduct. Lawyers with undiagnosed depression whose disorganized docketing and billing inadvertently leads to overbilling legal aid or lawyers whose drug addiction results in missed court appearances do not belong in the same deliberate and calculated category.

It has been said by some that the biggest problem caused by AMH issues among lawyers is underservice. A lawyer suffering from such an illness will be unable to carry out even the most basic tasks associated with successful lawyering, such as being organized, punctual and reliable, let alone address with clarity such ethical issues as confidentiality and trust.

The results, as I have seen in many cases where I have represented lawyers in law society matters, include: failure to communicate with clients and opposing counsel; failure to appear in court as scheduled; failure to meet court imposed deadlines; lack of civility toward opposing counsel and candour toward clients; and on the extreme end, defalcation of trust monies. More than half of all lawyers I represent in law society matters are there for infractions that would not have been committed, but for their AMH issues.

In last month’s column, I quoted some statistics regarding AMH issues in the legal profession. The main takeaway from the studies is that lawyers are approximately three times as likely as non-lawyers to suffer from AMH issues. Studies suggest that about 60 per cent of discipline cases and 85 per cent of trust account theft cases involved AMH issues.

What can the law society do about this issue? I have three concrete solutions to propose:

1. At the intake and investigative stage, when it is apparent the lawyer has AMH issues, the focus should be on getting the lawyer help and ensuring the lawyers’ clients are protected.

In most cases, this should not mean seeking an interlocutory suspension to take away the lawyer’s right to practise.

Instead, the society should provide proper guidance and assistance so the lawyer is able to manage his or her affairs while accessing the help that is necessary. Our entire penal system in Canada is built upon the notion of rehabilitation; somewhere along the way, the profession that guarantees to fight for those rights forgot to ensure its members had the same protections within their profession.

2. The tribunal itself must take AMH issues into consideration not just in terms of a mitigated penalty (as is the case now), but in the actual determination of misconduct.

Most Rules of Professional Conduct and bylaws are viewed at the tribunal as something approaching strict liability offences, which generally means the lawyer pleads to the misconduct and then gets a reduced penalty based on the AMH issues.

Furthermore, the tribunal ought not to be simply handing out an interlocutory suspension because the law society prosecutor comes in to the motion waving the flag of “protection of the public.” Interlocutory suspensions ought to be reserved for the most obvious and egregious breaches of trust.

3. A task force or working group needs to be established by the law society to determine exactly what percentage of discipline cases involve addiction and mental health issues and to make recommendations that would allow the society to address the disciplinary process within this context in a manner that protects the public while maintaining the integrity of the profession and the professional involved in the proceeding.

The long-term goal of such a study would be to ensure an investigatory and disciplinary framework that need not result in careers being destroyed.

Full Article & Source:
Wellness: Three ways to help with mental health and addiction in lawyer discipline proceedings

1 comment:

StandUp said...

I don't think the discipline is unduly harsh. Lawyers who don't take care of these problems cause real problems for their clients. They violate the public trust.

There needs to be a mechanism that would accept lawyers (and judges) with these problems for help without consequences if they come voluntarily.