Push for discipline changes

With the 2019 bencher elections on the horizon, lawyers in the province are advocating for changes to be made to how the Law Society of Ontario handles disciplinary investigations upon discovering the lawyer in question may be dealing with a mental health issue.

Darryl Singer, a trial lawyer and head of the commercial and civil litigation practice group at Diamond and Diamond Personal Injury Lawyers, says the LSO’s current investigatory and disciplinary process on matters of conduct and its emphasis on public prosecution has a negative impact on legal professionals with mental health concerns.

“The LSO does not intervene in what I’ll call a humane or appropriate way,” Singer says.

Some legal professionals often do not become aware of their own mental illness or feel compelled to remain silent for fear of repercussions in their career until the point that a conduct application is filed against their name, Singer says.

Both Singer and Bill Trudell, who practises at Simcoe Chambers and regularly acts for licensees at the law society, are advocating for an alternative system to be implemented — a route of diversion when it becomes apparent early in a conduct investigation or hearing that mental health may have been a factor in the complaints lodged against a lawyer or paralegal.

“There should be another off-ramp as opposed to the public prosecution,” Trudell says.

Orlando Da Silva, a senior Crown counsel at the serious fraud office of the Ministry of the Attorney General, went public with his own experience as a lawyer with depression back in 2014. However, as a candidate in the upcoming bencher election, he hopes the LSO can do more to destigmatize mental illness in the legal profession.

“They [the LSO] have to make an environment where lawyers or paralegals feel comfortable approaching and disclosing early,” Da Silva says, “and that means confidentiality in that process.”

Da Silva says the Mental Health Strategy Task Force implemented in 2015 was a step in the right direction and other initiatives such as the Member Assistance Program have been beneficial.

However, he says there is still widespread hesitancy to access the confidential counselling services provided by MAP for fear it will somehow end in a disciplinary investigation. 

In the upcoming February Convocation, benchers will be voting on proposed changes to the Law Society Tribunal Rules of Practice as first prepared by the Tribunal Committee in November. Among the new rules being proposed to the LSO are ones that will address the very concerns these Ontario lawyers have by modifying how the tribunal may deal with matters related to mental health.

If adopted, the new rules will allow conduct applications to be converted to capacity applications on consent of all parties and publication bans to be implemented on capacity hearings, should there be a concern for the licensee’s health in disclosure.

Isfahan Merali is a senior counsel at the Consent and Capacity Board in Ontario, a current bencher and chairwoman of the Tribunal Committee.

“I hope that the tribunal rules that have been proposed will get approved by Convocation,” says Merali, who is running for bencher again.

“I know that the tribunal has already been working for a number of years to ensure that the publication of reasons, orders and disclosure file materials relating to licensees don’t reinforce stigma or interfere with treatment.”

Regardless of whether those rules are adopted into the LSO, Merali says, several preventive and management strategies have already been implemented as a result of the earlier efforts of the Mental Health Strategy Task Force that have aimed to reduce stigma and increase early access to support systems. This included increasing awareness of the MAP and ensuring that “there was specialized training on mental health and addictions for law society staff and law society tribunal adjudicators, as well as making sure that tribunal adjudicators had training on accommodation requirements for mental health,” says Merali.

Regulatory changes have also been made in the tribunal process, which included expanding the volunteer duty counsel program, she says.