WHEN IT COMES TO LAWYER MENTAL HEALTH, EMPLOYMENT LAWYERS MUST LEAD THE WAY
By: Maxwell Radway, Principal Lawyer at Radway Law
Legal workplaces exist at the crossroads of professional regulation and employment law: a complex and heavily regulated intersection marred by poor mental health.
The Problem: Disproportionate Affliction
At the time of an October 2022 preliminary report on The National Study on the Psychological Health Determinants of Legal Professionals in Canada[1] (the “Sherbrooke Report”), the prevalence of psychological distress in the general working population was 40%. Shockingly (but not really) the prevalence rate for legal professionals was significantly higher:
· 57% for lawyers generally;
· 70.8% for lawyers with less than 10 years of experience; and
· 72% for articling students.
One of the most significant factors identified in the Sherbrooke Report as increasing psychological distress and burnout is quantitative overload (i.e. having too much work for the time available), which is consistent with prevalence of burnout among 56% of lawyers and 62% of articling students.
Intuitively, the Sherbrooke Report also found that psychological distress increases significantly with increases in billable hours targets, with psychological distress prevalence and burnout increasing to above-average levels at a target of just 1200 hours and increasing to 68% for psychological distress and 71.1% for burnout at a target of 1800 hours.
The Sherbrooke Report ultimately determined that work-specific risk factors account for:
1. 30.3% of the perceived stress;
2. 29.7% of the psychological distress;
3. 26% of the depressive symptoms; and
4. 47.3% of the burnout.
These prevalence rates are outrageous, given the legislative and regulatory environment applying to law firms in Ontario.
Worse yet, we are clearly failing our most vulnerable and distressed: a 2018 survey conducted by the Law Society of Ontario (the “LSO”) found that more than 20% of (voluntary) respondents who had just finished articling reported experiencing harassment and/or discrimination during their articling term.
Asking ourselves how some legal professionals are coping with the profession’s risk factors leads to another risk factor altogether. High stress was observed to increase at-risk drinking to 23.3% for female legal professionals and 30% for male legal professionals. Risks were also found to be elevated for drug use, with about 18% of legal professionals reporting that they had used illegal drugs in the past.
The Regulatory Environment
These disproportionately negative outcomes exist despite the highly regulated environment of law firms (with which we, employment lawyers, are intimately familiar), including the application of:
· The Human Rights Code, which:
o Prohibits discrimination in employment (s. 5).
· the Occupational Health and Safety Act, which:
o Requires policies related to violence and harassment (s. 32.0.1);
o Requires programs related to violence (s. 32.0.2) and harassment (32.0.6); and
o Requires investigations into allegations of harassment (s. 32.0.7).
· LSO’s Rules of Professional Conduct, which hold licensees to:
o High standards of integrity (Rules 2.1-1 and 2.1-2);
o High standards of courtesy (Rules 5.1-5 and 7.2-1); and
o A special responsibility to respect human rights laws, including in their employment practices (Rules 6.3.1-1 and 6.3.1-3).
While the risks of a fine (and public decision) for breaches of the Human Rights Code and Occupational Health and Safety Act are significant, the potential impacts of a regulatory determination in relation to the Rules of Professional Conduct can be even more significant, including discipline (up to license revocation) accompanied by a public decision and a notation on the LSO’s online Lawyer and Paralegal Directory.
Quantitative overload, a particularly strong risk factor for inferior mental health outcomes, is also particularly risky when it comes to potential discipline by the LSO.
In one Law Society Tribunal decision, a lawyer practising immigration and refugee law was disciplined for their failure to supervise staff members and junior lawyers to ensure appropriate client service in a high-volume practice. Accepting a joint submission as to penalty, the Tribunal suspended the lawyer for five months, restricted them from practising refugee law for a period of two years, ordered them to participate in a practice review upon their return to practice, and ordered them to pay costs of $15,000 to the LSO.[2]
Clearly, motivating influences to address wellness already exist in the law firm regulatory framework. But, we, as employment lawyers, are uniquely positioned to both lead by example and to lend our knowledge to others, in pursuit of better mental health outcomes in the legal profession.
Maxwell Radway practises employment law and professional responsibility law and can be reached at 416-699-8112 or at maxwell@radwaylaw.ca
[1] Cadieux, N., Cadieux, J., Gouin, M.-M., Fournier, P.-L., Caya, O., Gingues, M., Pomerleau, M.-L., Morin, E., Camille, A. B., Gahunzire, J. (2022). Research report (preliminary version): Towards a Healthy and Sustainable Practice of Law in Canada. National Study on the Psychological Health Determinants of Legal Professionals in Canada, Phase I (2020-2022). Université de Sherbrooke, Business School. 379 pages.
[2] 2015 ONLSTH 72 (misconduct) and 2015 ONLSTH 205 (penalty).
