Alcohol And Disability

An attorney who admitted appearing for a trial while intoxicated was suspended based on disability by the Law Society of Ontario Tribunal Hearing Division

 The Lawyer was called to the bar in 1987. He practised construction law as an associate at a firm and then at a practice he co-founded. In August 2013, the Lawyer joined a firm in Ottawa as an income partner. Shortly after, the partners at the firm became concerned about his use of alcohol and its impact on his work.

On January 23, 2014, the Lawyer attended a court date while under the influence of alcohol. As a result of his intoxicated state, the trial judge adjourned the proceedings. The Lawyer took a leave of absence from the firm shortly thereafter in January 2014 and then left the firm altogether in August of the same year. He then resumed practice as a sole practitioner until his licence to practise law was suspended by an interlocutory order dated December 22, 2016.

During the course of the investigation, the Lawyer admitted that he had been intoxicated during the trial on January 23, 2014 and acknowledged that he was an alcoholic. However, he denied that he was or continues to be a risk to the public as a practising lawyer.

At the Law Society’s request, he attended an independent capacity assessment with Dr. Ward, a forensic psychiatrist, in May 2016. As part of the assessment process, the Lawyer underwent neuropsychological testing.

Dr. Ward’s opinion was that the Lawyer was suffering from severe alcohol use disorder and a mild neurocognitive disorder. Her opinion was that the cognitive deficits were the result of longstanding alcohol abuse and without complete abstinence and compliance with a treatment regimen, his condition would deteriorate. She suggested that after the Lawyer had been abstinent from alcohol for one year, he undergo neuropsychological re-testing.

The Lawyer has not abstained or engaged in the treatment recommended by the assessing forensic psychiatrist. As recently as in the past year, he has been hospitalized for conditions related to alcohol use.

Findings

Dr. Ward’s evidence is that the Lawyer’s neurological deficits are not trivial and that complete abstinence along with a treatment plan is necessary for any improvement in his condition. Her opinion is that alcohol consumption caused the Lawyer’s intoxication at trial in January 2014, that it was related to his underlying alcohol use disorder and continues to cause disinhibition, disorganization and impairment of decision-making, along with the documented neurological deficits.

We find that the medical evidence establishes that the Lawyer does not have the capacity to meet his obligations as a lawyer. The actions outlined – particularly being intoxicated during a trial thus necessitating its adjournment, failing to report a charge and conviction, and his continued failure to file a compliance report – are related to his illness. As confirmed by the evidence of recent hospitalizations for alcohol-related issues, the Lawyer’s condition has not resolved as he has not complied with the recommended treatment. 

Accordingly, we find that the Lawyer was incapacitated effective October 2016 and continues to be incapacitated.

The suspension will continue until the attorney provides a satisfactory medical report from a doctor that has been given Dr. Ward’s reports. (Mike Frisch)