There’s Got to Be a Better Way! Law Societies’ Approach to the Regulation of Lawyers With Mental Health Issues

In recent years we have made significant strides in recognizing the prevalence of mental health issues amongst lawyers and attempting to defeat the stigma that discourages lawyers from disclosing their challenges and seeking support.

It is now well-known and accepted that “legal professionals are almost twice as likely to experience mental health issues like anxiety, stress, depression and addiction as the general population”.[1]

Leaders in our profession are speaking up. In 2022, former Chief Justice of Ontario George R. Strathy published a thoughtful paper acknowledging this reality and calling for top-down change in our approach to mental health as a legal profession. Around the same time, former “Big Law” partner Erin Durant published an excellent book, It Burned Me All Down, detailing her story of a mental health crisis and recovery along with recommendations on how law firms can and should build a happier and healthier environment for their staff (previously reviewed on Slaw here). These are but two of many examples (I recommend reading both).

As a profession, we no doubt can “talk the talk”—but I remain skeptical that we “walk the walk”.

In my practice as a lawyer for lawyers who are the subject of Law Society complaints, investigations, and discipline proceedings, I regularly witness firsthand how mental health issues intersect with professional conduct issues.

And a review of Law Society Tribunal decisions reveals that mental illness, burnout, and the consequent impairment of one’s ability to serve clients and manage their practice underlie a sizable proportion of professional misconduct findings.

To its credit, the Tribunal regularly recognizes underlying mental health struggles as a mitigating factor when determining the appropriate penalty for findings of misconduct.

But a reactive approach that punishes misconduct that occurred due to (or at least in conjunction with) mental illness or a mental health crisis does little to fulfill the Law Society’s statutory mandate to protect the public interest. It addresses the effects but not the cause. And it is too little, too late for clients whose interests were adversely affected by, for example, missed deadlines, missed red flags, or communication breakdowns.

To be clear, the Law Society of Ontario does have programs and processes in place for earlier intervention. It takes both a proactive and reactive approach to lawyers’ mental health.

Based on what I have seen and experienced as counsel to lawyers over the past several years,[2] however, I worry that various aspects of the Law Society’s[3] existing approach may have the unfortunate unintended effect of discouraging lawyers from disclosing and seeking early intervention for mental health concerns:

• Where a lawyer discloses to the Law Society that they are struggling with their mental health—for example, by requesting an extension of time to respond to a complaint because they are experiencing a depressive episode—the Law Society may consider this information as suggestive that the lawyer may be incapable of meeting any their obligations as a licensee by reason of mental illness, and may commence an investigation into the lawyer’s capacity.[4]
• When the Law Society commences a capacity investigation, they typically require the lawyer to answer numerous questions about their mental health symptoms, substance use, diagnoses, and treatment.
  • The questions—which the lawyer must answer in accordance with their professional obligation to respond to the Law Society—request details about treatment, including a list of any medications with dosages and name of prescriber, and copies of “any written reports, professional summaries and/or assessments completed” regarding the lawyer’s condition.
• If a lawyer experiencing mental illness enters into an undertaking not to practice or to practice with restrictions while they focus on their recovery, the Law Society may publish this undertaking on the online directory; even where personal health information is omitted or redacted, there remains a residual concern that the publication of this restriction itself may draw unwanted attention to the lawyer’s health struggles.
• The Law Society often requests the lawyer’s consent to obtain medical and other health records directly from the lawyer’s treating professionals (which, to its credit, the LSO emphasizes is a voluntary choice and not compelled by the duty to respond). It is entirely unclear, however, who at the Law Society can and will see the lawyer’s health records, how long the Law Society will keep these records, and what happens to them (and for what purposes they can be used) after the investigation.

I appreciate why the Law Society requests the information it does given its role to protect the public from the potential prejudice that may flow if a lawyer’s mental unwellness interferes with their ability meet deadlines, communicate with clients in a
timely manner, exercise their best judgment, and otherwise meet their professional obligations.

But it is also reasonable for a lawyer to feel uncomfortable about sharing detailed personal health information with their regulator, particularly without a clear understanding of who within the Law Society will see it, how the information might be used, for how long it will be retained, and whether there are appropriate limits and safeguards in place given the deeply private nature of such information.

Both “sides” have important interests and legitimate concerns, but there is a significant power differential between the regulator and the licensee. Given the licensee’s duty to cooperate, I often (reluctantly) advise a client that they have little choice but to truthfully respond to the inquiries.

Reflecting on this problem, I thought about a series of infomercials in the 90s where a person struggles with a household task before the narrator interjects: “There’s got to be a better way!” The commercial shifts from black and white to technicolour, and a magical “As Seen on TV” solution is presented to make that pesky task manageable.

Managing the risk of prejudice to clients that may result if a lawyer experiences a mental health crisis is an important task for the Law Society. But, in my respectful view, the way this task is performed at present leaves much to be desired. There’s got to be a better way.

An approach that encourages lawyers to disclose mental health concerns and receive support at an early stage—without fear of a regulatory investigation and its potential consequences—is both in lawyers’ interests and in the public interest.

In future columns, I intend to explore these ideas further to continue the conversation and work towards more productive approach.

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[1] https://lso.ca/lawyers/well-being-resource-centre; see underlying studies and papers at: https://lso.ca/lawyers/well-being-resource-centre/research-and-reports

[2] I hasten to acknowledge that in this capacity I do not have a complete picture of how the Law Society handles such matters. I am writing based on an admittedly limited perspective, but welcome additional information from those more knowledgeable than me in my quest to pursue a more productive regulatory approach to managing lawyers’ mental health issues.

[3] References to any policies or practices by the “Law Society” refer to the Law Society of Ontario, which is the regulatory body with which I have the most experience as an Ontario lawyer. To the extent other law societies take different approaches I would be pleased to learn about them.

[4] Indeed, when the LSO writes to licensees informing them of an investigation, under the heading “Accessibility and Accommodation” it warns licensees: “Please note, to the extent the information received suggests that you may be, or may have been, incapacitated within the meaning of s. 37 of the Act, an investigation into this issue may be instructed. Further, this information may be used within a proceeding should one be authorized…”