Ontario Considers Impact Of Mental Health Issues On Bar Sanctions
The Law Society of Ontario Tribunal Hearing Division issued a significant decision for matters caused by mental health/substance abuse issues
This case marks an important milestone in the evolution of the legal profession’s regulatory approach when its members experience mental health or substance use challenges.
The respondent, Mr. Stewart, neglected his professional responsibilities in several serious ways that would normally result in findings of professional misconduct and penalties. He was suspended pending investigation for a lengthy period. During that time he recognized that his mental illness and substance use had played a significant role in his behaviour. He sought out diagnosis and received treatment. Ultimately he moved to terminate his suspension on the basis that he was capable of returning to practice, and had found a potential employer that was willing to hire him.
The Law Society resisted the motion on the basis that, while Mr. Stewart was on the right track, he was not yet at a stage where the public would be adequately served if he was permitted to resume practice. The Hearing Division did not dismiss the motion, but rather adjourned it for a defined period in order to allow the Lawyer to achieve the twin goals of rehabilitation and public protection.
Over the next three months, the Law Society moved away from the conduct investigation and approached Mr. Stewart’s situation as a capacity issue. To that end, a capacity application was commenced under s. 37 of the Law Society Act. The parties then negotiated an agreed statement of facts (ASF), setting out the details of the Lawyer’s improper conduct, psychiatric history, and drug and alcohol abuse, as well as his prognosis and the recommended treatment.
Relying on a lengthy medical opinion, the parties negotiated an extremely detailed protocol to govern the Lawyer’s return to practice. Invoking the Tribunal’s assistance in case management and pre-hearing conferences, Mr. Stewart and Elaine Strosberg, counsel for the Law Society, developed and refined a series of conditions that would govern his return. These terms included an onerous treatment plan and employment restrictions to which the Lawyer was willing to submit for at least five years once he met the re-entry requirements and obtained employment.
The parties then put aside the Lawyer’s motion to end his suspension, and instead requested an expedited capacity hearing. They requested that the adjudicators who were familiar with the record and had adjourned Mr. Stewart’s motion be asked to hear the new application. The hearing occurred about two weeks later.
At the hearing, Ms. Strosberg presented the ASF and outlined the basis on which we were asked to make a finding of past incapacity and an order permitting Mr. Stewart’s conditional return to practice. The Lawyer testified, and frankly admitted the “appalling” breaches of his professional duties that we will summarize below. He described how his personal life had deteriorated, leading to the commencement of a harmful personal relationship; cocaine and alcohol use; suicidal thoughts; and ultimately a firm psychiatric diagnosis, treatment and volunteer activities.
Panel members asked a number of questions and suggested minor revisions of the draft capacity order that the parties put forward. At the conclusion of the hearing, with these amendments, we accepted the parties’ agreed disposition.
After an extensive discussion of the evolving understanding of the impact of mental health issues and bar discipline, particularly for relatively minor and remediable misconduct
In our view, the diversion of the misconduct allegations to a capacity proceeding and the agreement on strict terms for Mr. Stewart’s resumption of practice, was a logical and welcome outcome in many ways. An order of this kind is consistent with the Tribunal’s jurisprudence on licensees’ responsibility for their actions, as well as their entitlements under the Human Rights Code. These regulatory and human rights principles would likely have affected both finding and penalty if the matter had gone forward as a conduct application.
(Mike Frisch)