In a pair of recent decisions — Law Society of Ontario v. Burtt, 2018 ONLSTH 63 and Law Society of Ontario v. Yantha, 2018 ONLSTH 94 — the Law Society Tribunal grappled with what accommodation for mental illness is required in terms of discipline imposed by the Law Society of Ontario. The Burtt decision makes clear that disciplinary proceedings — including investigations into professional misconduct — themselves must take into account the particular nature of a lawyer’s disability; the LSO’s awareness of a lawyer’s limitations will require the law society to consider and to implement possible accommodations in the investigatory phase of disciplinary matters.
In the Yantha decision, the law tribunal accepted that mental illness, including depression and addiction, could constitute mitigating circumstances that would justify allowing a lawyer to surrender their licence rather than having the licence revoked. At the same time, the tribunal held that the public interest dictated that the lawyer’s licence should be permanently terminated, notwithstanding Darwin Anthony Yantha’s request for a length suspension, followed by restrictions and supervision. Yantha’s apparent failure to grapple with the seriousness of his condition and his failure to pursue proper psychiatric treatment for his depression indicated that there was a real risk that he would continue to engage in ongoing professional misconduct. Thus, under the circumstances, it was not appropriate to depart from the presumptive penalty of a permanent suspension of licence.
In both cases, the law tribunal’s reasoning reflects care and attention to the particular nature of mental illness and addiction, including how illnesses can manifest, how mental illness can cripple a lawyer in some aspects of life while leaving that same lawyer able to function at a high level in other parts of life and even the particular challenges that a lack of insight into one’s own illness can cause.
That the law society has an obligation to accommodate lawyers with disabilities, including mental health issues, in its disciplinary proceedings is not a surprise. A few people may have been surprised that the LSO was not given a wide berth to do what it considers necessary where the public interest is concerned, but they would be in the minoity. There is a general recognition that mental illnesses such as depression and addiction are “real” illnesses and that human rights law requires accommodation of these illnesses. The legal profession as a whole understands, I think, that it has a human rights obligation to accommodate mental illnesses and addiction. We all know this and accept this obligation, at least in theory. But what does it mean in practice? What might a genuine commitment to accommodation in our profession look like?
Before I answer that question, let’s be clear that lawyers are not at all immune to addiction and mental illness. In fact, some research suggests that we are more prone to these impairments than the population at large. A 2016 study published in Addiction Health found that there were “substantial rates of behavioural health problems” among U.S. lawyers. This study, which was funded by the American Bar Association and the Hazelden Betty Ford Foundation, found high levels of hazardous, harmful and potentially dependent consumption of alcohol, especially among younger attorneys, and high levels of lawyers experiencing symptoms of depression and anxiety. Lawyers experienced these problems at higher rates than the general population and at higher rates than other professionals such as doctors.
Although this study focused on U.S. lawyers, the parallels between Canadian and American culture are such that we assume, at minimum, that lawyers are far from immune to addiction and mental health issues. Canadian research on addiction and mental illness among lawyers is fairly scarce, but what does exist confirms that, if anything, lawyers experience mental health crises related to addiction and illnesses such as depression at higher rates than the general public.
We are a community at risk. It might be difficult to understand that. We have so many advantages. We are smart and ambitious. We defend other people at risk. Hell, we slay risk for a living. We manage it, we fix it, we box it up.
We do it for others, that is. We slay risk for other people. But where our own well-being is concerned, as a profession, we have structured things in ways that dial up risk where mental health is concerned.
Let’s start with the booze. So much of legal culture revolves around the consumption of alcohol. It begins in law school with wine and cheese receptions and continues through the recruitment phases of our careers. Some firms structure social events around open bars. Client meetings occur over cocktails. Informal mentoring happens over drinks after work. I dare say that some law firms have only paused to reflect about the role of alcohol in their firms’ cultures when they were concerned about potential liability. Having open and frank discussions about how the centrality of alcohol enables addictive behaviour is rare. We don’t accommodate people with addiction.
Then there’s the predominant structure of legal practice, with its emphasis on the billable hour. We reward extreme behaviour in law by using the billable hour as one of the central metrics for success. Any firm that uses the billable hour as one of the principal ways to determine compensation and reward cannot authentically claim that it truly values “work-life balance.” There is no work-life balance when the prevailing incentive structure sends the message that work must always come first.
Sometimes, I think that mental illness and the practice of law are simply incompatible. Can a lawyer with a mental illness really attend to the management of that illness while also managing a legal practice, where certain dates are very inflexible, pressure is high and the public interest is at stake? I don’t know the answer to this question. Legal culture and the nature of legal training and practice include stumbling blocks to people dealing with mental health issues. We have to do better. There are more than legal careers at stake: People’s lives hang in the balance.
Dr. Theresa E. Miedema is a lawyer and an assistant teaching professor and co-ordinator of student affairs for the Faculty of Business and Information Technology, University of Ontario Institute of Technology.