Mental Health Is a Professionalism Issue

Michele Hollins, former President of the Canadian Bar Association said “Studies have shown that lawyers may have the highest rates of depression among various occupational categories…many in our profession think that it makes good business sense to keep concerns to themselves.”

About 20% of the legal profession suffers from clinically significant levels of substance abuse, depression, anxiety or some other form of psychopathy. Lawyers suffer from major depressive disorders at a rate 3.6 times higher than non-lawyers who share key socioeconomic traits. In 2010, the Ontario Lawyers’ Assistance Program reported that 42% of their calls were related to mental health issues.

The research to support Hollins’ claim is there but an effective response is not. Despite the link between one’s mental health and the ability to self-assess for issues of competency and other professional standards, there is no formal training in law schools to prepare future lawyers on the matter.

Under the Rules of Professional Conduct, lawyers are expected to be self-aware and are obliged to be “alert to recognize[ing] any lack of competence for a particular task and the disservice that would be done to the client by undertaking that task.” The Rule is clear but how to ensure that lawyers have the mental capabilities to self-identify any mental ailments is not.

The Law Society’s current mental health programming includes telephone counseling services and Continuing Professional Development training. While the focus has been to proliferate the use of mantras such as “healthy lifestyle” and “work life balance”, serious attention has not appropriately been given to the risk the issue places on lawyers as a self-regulated profession.

Mental illness is disproportionately represented at disciplinary hearings. A CBA report exposed that drugs, alcohol, or “psychiatric” illness was present in almost 50% of the cases categorized as serious disciplinary proceedings. Some numbers suggest that 40% to 75% of disciplinary actions are against lawyers who are chemically dependent or mentally ill.

Even in the absence of any altruistic desire to address the high rate of mental illness, the Law Society must do something to safeguard its role as regulator. As a self-regulated profession, the risk of lawyers’ mental incapacities is too great to continue viewing it in an individualistic manner. The Law Society needs to reframe the discussion as a professionalism issue or risk upsetting public trust in lawyers’ competencies.

Depending on disciplinary measures alone is an ineffective way to safeguard the profession. Often by the time the issue is brought to a hearing, the reputation of the profession has already been damaged. What is needed at this point is greater attention in evaluating and assessing the profession’s response to the vast amount of evidence indicating that there is a problem.

The prevalence of mental illness in the profession conjures questions on whether the profession attracts personalities that are prone to such issues or if the profession itself causes them. There are many important questions the profession must ask itself but the focus here is whether the binary approach to mental health and legal ethics is effective or even accurate.

Over the past 20 years, law schools began placing greater importance on professionalism and implemented compulsory legal ethics components to the curriculum. In the same manner that mental health is discussed now, legal ethics was for a long time, simply an elective course, a subject matter to consider but not an integral part of the legal education system.

The legal profession must be proactive in considering how to reverse the current trend so that mental illness is not overly represented in disciplinary cases. The effect of mental health issues on the profession is not simply evident at the disciplinary stage, but can also manifest itself in daily client interaction and is also likely to disproportionately affect lawyers working in social justice fields. Law Schools should consider how to integrate mental health awareness in the curriculum just as it did with legal ethics. In fact, the two subject matters are inseparable.

A lawyer’s obligation to adhere to the Rules requires the ability to self-assess one’s behavior against the standards set by the Society. Perhaps, our instruction should reach further and aim to provide students with tools to self-assess for mental health issues and instruct preventative strategies. If mental health issues are this pervasive in disciplinary matters, then it would be illogical not to consider them at the same time.

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Lindsay Carbonero is a third year law student at the University of Windsor. During law school, she was awarded the Justice Saul Nosanchuk Social Justice Fellowship. As an articling student, Lindsay hopes to continue her involvement with Women’s Legal Education and Action Fund (LEAF) and youth mentorship programs in her community. This piece was written for the op-ed assignment in Professor David M. Tanovich’s Legal Profession class.