Full Stigma Of Revocation Avoided Due To Bipolar Disorder
An attorney’s demonstrated bipolar disorder justified allowing him to resign from the Bar notwithstanding his misappropriation of nearly a half a million dollars.
The Law Society of Ontario Tribunal Hearing Division accepted his resignation.
There is no dispute that Mr. McNamara committed serious misconduct. Over more than two years he misappropriated a significant sum of money. He manipulated transactions, lied to clients and failed to maintain proper records. This caused harm to those that he had a duty to serve.
In such cases there is a presumptive penalty of revocation.
Mr. McNamara’s situation reflects several mitigating considerations. These include:
• a legal career of more than a quarter-century without prior complaint or discipline;
• self-reporting of the misconduct;
• full co-operation with the Law Society in its subsequent investigation;
• complete restitution to victims;
• acceptance of responsibility, thus avoiding the time, cost and stress of a contested proceeding; and
• articulated remorse and public apology.
However, even such factors collectively do not alter the presumption of revocation.
The impact of his condition
At the hearing we were provided with credible medical evidence that Mr. McNamara has had a serious bipolar disorder for many years. The frequency of episodes, their length, and the intensity of symptoms have been steadily escalating. Attempts to mitigate this situation have had only limited success.
[Bipolar disorder is not a defence to an allegation of professional misconduct in these circumstances. It does not absolve or diminish personal responsibility. However, Flumian and this case demonstrate that it is a major mental illness that can disturb judgment and affect decision-making.
It may explain or provide insight into serious misconduct that would appear to be otherwise out of character. The medical evidence relating to Mr. McNamara’s condition establishes the sort of exceptional circumstance identified in Mucha and Bishop that can warrant departure from presumptive revocation…
Mr. McNamara has not practised law for almost three years. Even then he was in the process of winding down his business. He states that given his age, he has no intention of ever practising again. He insisted that he would never reapply for reinstatement. He was willing to provide an undertaking to that effect if required.
Given the role played by mental illness, we were satisfied that, like in Flumian, the proposed joint penalty of permission to surrender was within the range of acceptable outcomes. It was certainly not unreasonable or unconscionable.
It is right that Mr. McNamara’s legal career be concluded, given his misconduct, so as to ensure public protection. However, in the circumstances it was not necessary for this to occur under the full stigma associated with revocation.
CBC reported on the misconduct. (Mike Frisch)