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- Mental Health in the Legal Profession: Your Obligations & How to Help
At some point in your legal career, you may encounter another lawyer who is suffering from a mental health crisis, compromising their ability to practise. While you hope this never happens, research suggests that lawyers are at a much higher risk of mental health concerns than other professions and the general population. Lawyers may be more likely to suffer from anxiety, depression, dementia, addiction or other mental health concerns.
If you suspect a mental health issue is affecting another lawyer’s practice, what should you do?
Addressing the Issue: Speak Up
A good first step is to approach the lawyer one-on-one to express your concern. This approach makes the situation less intimidating for the lawyer and may allow you to help them recognize their issue and encourage them to seek professional help. You may wish to contact the Alberta Lawyers’ Assistance Society (Assist) for guidance on how to conduct your discussion.
Assist can help you understand what the lawyer may be experiencing. Please see How To Help Someone on their website. You can also speak directly to Dr. Brian Forbes, the registered psychologist who operates Assist’s professional counselling services. Dr. Forbes provides advice to law firms and other legal employers regarding lawyers who may be experiencing addiction or mental health challenges. You can request Assist’s guide for management by calling 1.877.498.6898.
You should also suggest that the lawyer contact Assist directly for help. Assist provides free confidential assistance and resources to lawyers, students and their dependent family members.
This simple step lets the lawyer know that they are not alone. Lawyers often do not reach out for help due to the perceived stigma surrounding mental health issues. Speaking up and showing compassion can help another lawyer to overcome their concerns and seek assistance.
Retired Supreme Court of Canada Justice Gascon is challenging the silence and stigma surrounding mental health concerns by encouraging lawyers and judges to speak more openly about depression and anxiety. The Lawyer’s Daily published portions of their interview with him in the October 22, 2019 edition, where he said:
“I think it’s a service to the whole legal profession that this be looked into and that we have a better understanding, a better acceptance of the reality – and not pretend that it isn’t there.”
Professional Obligations: Duty to Report
Outside of openness and compassion on a basic human level, there are some professional obligations related to lawyer competency as well. The duty to report is found in section 7.1-3 of the Code of Conduct as follows:
7.1-3 Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer must report to the Society:
(d) conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer;
(e) conduct that raises a substantial question about a lawyer’s capacity to provide professional services; and
(f) any situation in which a lawyer’s clients are likely to be materially prejudiced.
Competence may be affected by addiction, for example, and commentary to Rule 3.1-2 states that a lawyer should refrain from conduct that may interfere with the ability to provide competent legal services. Lawyers are also required to be aware of any factor that may have a negative impact on their ability to deliver competent service.
While there may be a positive duty to report another lawyer when they may be suffering from a mental health issue that affects their ability to practice, paragraph  of the commentary to the rule states that lawyers facing such challenges should be encouraged to seek assistance as soon as possible. If a lawyer is making a bona fide effort to encourage another lawyer to seek help, the first lawyer is not required to make a report to the Law Society. If, however, the other lawyer’s behaviour is criminal or likely to cause harm, or if the other lawyer if refusing to seek help, there is then a positive obligation to report the lawyer to the Law Society.
If the other lawyer is a member of your own firm, you should discuss the issue with firm management, and you may also be required to contact the Law Society. Even if the lawyer is at a different firm and you think the other firm will address the concern, you are not relieved of your obligation to report. The obligation to report lies with members of the lawyer’s firm, as well as with you.
In all cases, a firm should have an action plan in place to ensure clients’ needs are being met. The firm should review the lawyer’s files for any errors. If errors are discovered, the client needs to be notified. The firm may also be required to notify the Alberta Lawyers Indemnity Association.
There may be additional risks to the public if the other lawyer is a sole practitioner and lacks the support of other lawyers to carry on the practice while they seek medical care. They may not have done any contingency planning for situations involving their mental or physical health, in which case the Law Society’s custodianship department may have to step in to ensure that the clients’ best interests are being protected.
Bringing it Together
It is every lawyer’s professional responsibility to act when they are concerned that another lawyer is suffering from a mental health concern – for the sake of that lawyer, the public and the profession.
To assist you in formalizing your own contingency plan, view our Business Continuity and Succession Planning Guide and Checklist. Do not wait until it is too late. It is important to recognize that we are all susceptible to concerns about our physical or mental health (and other potential incapacities) and to plan accordingly, just in case.
If you suspect a colleague is experiencing a mental health concern but are unsure of next steps, seek assistance from the Law Society’s Practice Advisors. Your conversations with them are confidential and they can help you decide whether to report your concern. If you are required to report another lawyer to the Law Society, you must contact our Intake team to initiate an investigation. You may speak with our conduct counsel about whether your ongoing involvement in the complaint will be required.
To echo the message of Justice Gascon, we need to develop a better understanding and acceptance of the reality of mental health issues in our society and in our profession. Silence merely reinforces the perception that there is a stigma associated with mental health concerns.
We should all do our best to be open and aware of mental health concerns in ourselves and in others. Lawyers may be able to avoid complaints, discipline proceedings, and negligence claims, and may be able to enjoy a return to practice, by taking proactive and effective steps to address mental health issues.