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A push for changes in the discipline process, pre-election

Those with mental health issues need consideration
|Written By Julia Nowicki
A push for changes in the discipline process, pre-election
Darryl Singer says the LSO’s current investigatory and disciplinary process on matters of conduct has a negative impact on legal professionals with mental health concerns.

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.

“The investigation focuses on gathering information to prosecute and then it goes beyond the investigation to discipline,” Singer says. “The discipline counsel picks up that file with the idea that, one way or another, this lawyer is going to get some sort of a penalty, even if that penalty is [a] reprimand or a very, very brief suspension.”

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. “If you can identify a mental health issue early, you can work together with discipline counsel or investigating counsel at the law society to try and put up a safety net plan, as opposed to going through the regulatory process, which is about accountability and punishment.”

Setting up a system in which a legal professional can get help right at the onset rather than after the disciplinary process can help reduce the apprehension many face in speaking out or seeking help for a mental illness, 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 increase awareness and 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.

"It's small wonder because, as soon as you admit that you have these issues, you're perceived as weak and there goes your practice,” Da Silva says. “If you're a trial lawyer or an advocate, no one brings their problems to you, the problems that are too much for them to solve on their own.”

Decisions made by the tribunal on conduct matters are public as part of the LSO’s mandate to protect the public. Currently, there is no “sunshine date” on that information in place, meaning that legal professionals are left answering for their indiscretions years later, even in cases of full rehabilitation or recovery, Singer says.

“If there's early detection or early disclosure, the law society shouldn't be engaging in an adversarial disciplinary, yanking-your-licence-even-temporarily mode, Da Silva says. "It should be working with the licensee to make sure they have the supports they need to continue to serve the clients, to protect the public interest, to keep them from falling further into the depressive cycle and to address any self-medication issues.”

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,” Merali says. “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,” Merali says.

Regulatory changes have also been made in the tribunal process, which included expanding the volunteer duty counsel program, she says. Licensees are now able to seek assistance at pre-hearing conferences and during self-representation in the disciplinary process if mental health may be a factor, she says. 

However, as she runs for re-election this spring, she hopes the LSO continues to expand future mental health initiatives through The Action Group on Access to Justice established by the society in 2015, ones that encompass all legal professionals from law students to retirees.

Elsa Ascencio is an articling student at a union-side law firm in Ottawa. She, too, has been open about her own struggles with depression through law school and articling and was surprised to learn how prevalent mental health issues were among her peers.

“I remember telling a friend, 'I'm depressed' and they were like 'Yeah, me too.' So, is [this] just the new norm?” Ascencio asks.

Despite initial concerns of being too open about her own mental illness on a platform typically used by lawyers to promote their achievements in the field, Ascencio has remained vocal on Twitter and throughout her professional life to encourage others to do the same.

“If I'm away, and I am away for mental health reasons, I don't sugarcoat it anymore. I say, ‘Elsa is out of office for a mental health break,’” Ascencio says. “It normalizes it the same way I would normalize a maternity leave or parental leave.”

Da Silva says that, often, remaining silent is the worst thing an individual struggling with a mental heath issue can do. He says the LSO is in a position where it can actively encourage a culture of acceptance through educational campaigns and partnerships with stakeholders to reduce the stigma and concerns that mental illness will negatively impact a lawyer’s or paralegal’s career.

Encouraging individuals to form support groups within firms, courthouses, legal clinics and the community in general, Da Silva says, “will change the culture, will reduce disciplinary proceedings, will reduce claims against the insurance fund and will result in a healthier justice system overall.”

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