When lawyers have a mental health crisis, how should regulators balance public protection and professional recovery?

By Guest Opinion

If a lawyer appears in court to represent her client but she is experiencing an acute mental health crisis, what should a provincial regulator do? 

During articling, I found myself at the end of my own battle with addiction. I had kept it secret from my employer and many members of my family, but my physical condition was worsening and my mental health had been in a steady state of decay for years. I had voluntarily presented at hospitals, various doctors, and harm reduction programs since the age of sixteen, but had to check into an inpatient rehabilitation facility at twenty-eight to be separated from alcohol. 

Professional discipline loomed large, but my illness rendered me without choice. The vice grip of my addiction had to be loosened by a rigorous treatment program that I embraced while taking two months off from articling. I thankfully never found myself before a disciplinary tribunal; I found recovery first. 

Many other regulated professionals are not as fortunate. Some end up before disciplinary tribunals for conduct that is associated with a health condition such as addiction or mental health crises, and some have their licenses to practice suspended or revoked.

Lawyers, judges, regulators and researchers are sounding the alarm on a mental health crisis within the legal profession. A national study funded by the Federation of Law Societies of Canada and carried out by researchers at the Université de Sherbrooke found lawyers suffer from mental health issues and addiction at higher rates than the general population. (See phase II of the study here) 

Some lawyers noted that a culture of silence coupled with fear of reprisal prevent those suffering from obtaining help. The study recommended law societies develop alternative discipline procedures for licensees with mental health issues and addiction.

Alternative discipline programs, like Ontario’s Invitation to Attend, Nova Scotia’s Fitness to Practice Program, Manitoba’s Health Recovery Program, and British Columbia’s Alternative Discipline Process, work to protect the public while offering lawyers the opportunity to access treatment and reintegrate into legal practice. But being able to get the care you need depends on your province; not all jurisdictions have such programs for lawyers with health conditions. 

Supporting Ill Lawyers while Protecting the Public

The tension between lawyers’ interests and those of the public has been a topic of considerable debate within professional and academic circles. A noticeable hot spot within professional regulation occurs when lawyers vulnerable by way of stigmatized disability are disciplined. The tension is exacerbated by inconsistent approaches to discipline, particularly when lawyer disability is by way of mental illness and/or addiction. 

In the context of professional regulators’ increased public-facing focus on the mental health crisis within the legal profession and loud calls for destigmatization, alternative professional discipline programs must be developed. It is no longer acceptable to justify harsh discipline against vulnerable licensees without robust and publicly accessible evidence that this is in the public interest. 

Professional discipline operates in a relatively secretive fashion in Canada. The average member of the public must put much time and effort into researching the disciplinary process in any given provincial or territorial jurisdiction. Hearing decisions are open to the public and public decisions are released, but only give part of the story.  Communication processes between law societies are also opaque, making it difficult to shed light on how regulators are making decisions about discipline. 

Canada needs a consistent approach to conducting alternative discipline; no legal mandate exists for implementing alternative discipline programs in Canadian law societies. The Federation of Law Societies of Canada released National Discipline Standards in 2023, but has no power to impose these standards on provincial and territorial Societies.

The FLSC has released reports decrying the mental health crisis in the legal profession and called for transparency and consistency of alternative discipline programs. Law societies must confront whether protection of the public is a sufficient justification for not having these programs in place. For those who refuse to adopt all FLSC standards or implement alternative discipline pathways for lawyers with mental illness and addiction, the public ought to know. 

It ought to no longer be assumed that lawyers and the public are necessarily at odds. After all, mental illness and addiction do not discriminate, and public awareness of the nature of the mental health crisis demands the discovery of new ways to deal with very old problems. A protected public is a knowledgeable public, and one whose varied interests are held in high regard.