Facing Our Vulnerability

When we were children, we used to think that when we were grown-up we would no longer be vulnerable. But to grow up is to accept vulnerability… To be alive is to be vulnerable.

– Madeleine L’Engle

The release of Canada’s national mental health strategy Changing Directions, Changing Lives last year served as a reminder that we are all, even lawyers, vulnerable to the effects of mental illness.

In today’s knowledge based workforce, the effects of mental illness are felt not only by individuals and their families, but also the economy. The impacts of mental illness may be further compounded by the effects of aging, including cognitive decline, dementia or Alzheimer’s disease.

When a lawyer’s mental health suffers, the ability to practice competently may suffer as well. The Federation of Law Societies of Canada’s Model Code of Professional Conduct (the Model Code) makes it clear that an individual lawyer is responsible to practice to the standard of a competent lawyer; but, it is less clear what the obligations are for those who become aware of another lawyer’s declining mental health. With respect to partners and associates, the Model Code notes that “…A lawyer who is incompetent does the client a disservice, brings discredit to the profession and may bring the administration of justice into disrepute. In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’s partners and associates.”

Just what are your obligations when you note a decline in competence of a lawyer you work with? Where there are serious concerns, Chapter 6 of the Model Code requires that you report to the appropriate law society:

Duty to Report Misconduct

6.01 (3) Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer must report to the Society:

(d) the mental instability of a lawyer of such a nature that the lawyer’s clients are likely to be materially prejudiced;

(e) conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer; and

(f) any other situation in which a lawyer’s clients are likely to be materially prejudiced.

The Commentary to this provision notes that:

Often, instances of improper conduct arise from emotional, mental or family disturbances or substance abuse. Lawyers who suffer from such problems should be encouraged to seek assistance as early as possible. The Society supports professional support groups in their commitment to the provision of confidential counselling. Therefore, lawyers acting in the capacity of counsellors for professional support groups will not be called by the Society or by any investigation committee to testify at any conduct, capacity or competence hearing without the consent of the lawyer from whom the information was received.

As suggested in the Commentary, this obligation to report may not need to come into play if law firms are proactive and take steps to address and support the mental health of their lawyers and staff.

Ensure that your firm policies support the mental health of your lawyers and provide guidance for lawyers who notice a change or decline in a lawyer’s mental health. Set out a protocol that lets your lawyers know who to talk to about these issues, whether personal or relating to another lawyer in the firm. Encourage team approaches to client work so that a struggling lawyer can continue to work if able, but is supported.

Develop a culture of support in your firm so that lawyers are not hesitant to seek help when needed. You can do so through your policies, through personal relationships and through education.

And don’t hesitate to contact your local Lawyers Assistance Program (LAP). These programs are available in every jurisdiction and offer professional help in a way that does not expose the person seeking assistance.

(Adapted from Lawyers are Vulnerable Too published in Loss Prevention Bulletin No. 55, Fall 2012, Canadian Lawyer’s Insurance Association)