The Advisory: Volume 8, Issue 5, December 2010

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Lawyers at Risk Task Force to Implement Best Practices

By Carsten Jensen, QC, Bencher and Chair, Lawyers at Risk Task Force

ON MAY 7, 2010, the Law Society convened a round table discussion to review and discuss issues related to “lawyers at risk” as a result of underlying personal difficulties that may affect their competence.

Those underlying personal difficulties sometimes include addiction, mental or physical illness or disability, bereavement, separation or divorce. The round table was organized by the Law Society’s Lawyers at Risk Taskforce, with support from staff and volunteers of the Law Society of Alberta and the Alberta Lawyers’ Assistance Society (ASSIST).

The specific purpose of the Lawyers at Risk round table was to review what the Law Society, ASSIST, and the rest of the Alberta legal community currently do to help lawyers and articling students with personal and professional issues. That review was conducted on a comparative basis, and so it included an analysis of the “best practices” of other regulators, lawyer assistance programs and legal communities outside Alberta. The discussion took place within the boundaries of the Law Society’s mandate to serve the public interest.

Twenty-nine people attended the round table discussion, including specially invited experts and discussion leaders. They included executives from the leading lawyer and physician assistance programs in Florida, Oregon, and British Columbia. Others attended who had gained their expertise in dealing with lawyer at risk issues in Alberta, including a former Bencher, counsel, and members who had personally had to deal with risk issues. Participants heard first-hand accounts from individuals who had suffered from personal problems which had placed them in difficulty with the Law Society as regulator.

From the round table discussion, we identified a number of areas, all related to each other, for further work:

  1. There is an identifiable suite of warning signs that a lawyer may be in sufficient distress to impair his or her competence. How do we train our members to recognize such signs, so that assistance can be offered at the earliest possible time?
  2. There are cultural barriers in our communities and our profession which prevent lawyers from seeking help. There is a view that mental illness or addiction is shameful. How can we break through these barriers?
  3. How can we create and follow sustainable models of lawyer assistance?
  4. How can we otherwise enhance the resources available to lawyers in distress?
  5. How can we improve the Law Society’s discipline process to deal with lawyers in distress, both to make it more compassionate, and to recognize such improvements will be in the public interest?

Round table participants concluded that the following “best practices” should be considered in Alberta:

  • Early outreach is critical for the prevention of more serious problems, and that outreach can be by education and awareness campaigns. It also may include a direct approach to a lawyer identified as having problems.
  • Outreach and education should be directed at awareness of sentinel behaviour, and of the avenues of assistance. Effective outreach increases the likelihood of a lawyer’s seeking early help.
  • Help should be available from the day of admission to law school to retirement.
  • Assistance programs should be integrated in the discipline process. This means that the discipline process should be flexible enough to respond to distress issues, and conversely, assistance programs are able to take the initiative when discipline issues suggest a lawyer is in distress. Diversion from the disciplinary process to treatment, where appropriate, should be encouraged.
  • Legal help should be provided to lawyers in the discipline process, and includes a component of diagnosis and treatment through other professionals.
  • The financial consequences to a lawyer who faces distress issues resulting in practice interruption should be recognized, and dealt with in some meaningful way, perhaps including mandatory disability insurance.
  • Law office managers should be supported in their in-house programs to deal with distressed firm members.
  • Emergency response programs should exist to cover the sudden interruption of a distressed lawyer’s practice.
  • Support should be available to the families and colleagues of the distressed lawyer.

There are obviously challenges in implementing these best practices in Alberta, and the Law Society as regulator must make sure that everything that it does reflects its public interest mandate. Having said that, we recognize that assistance to distressed lawyers, and opportunities for diversion from disciplinary processes in appropriate cases, will serve to protect the public.

At our November 2010 meeting, the Benchers considered a report from the Lawyers at Risk Task Force, which included all the elements outlined above. The Benchers have provided strong encouragement for this initiative, and our task going forward will be to implement as many of the best practices discussed above in the work of the Law Society.

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