Hickey

Lawyers in Nova Scotia who find themselves struggling with a physical or mental impairment that has affected their ability to do their jobs are presently referred through the Nova Scotia Barristers’ Society disciplinary process. That will change, perhaps for the first time in Canada, if a planned new fitness to practice stream is put in place.

Currently, the province’s Legal Profession Act sets out a process for investigating complaints, but this process only deals with issues of professional misconduct. “We have no authority to deal with fitness to practice.... As a default, the disciplinary process is the only option,” said Marjorie Hickey, a partner with McInnes Cooper in Halifax and a member of the NSBS Professional Responsibilities Policies and Procedures Committee.

It is not the best option, said Elaine Cumming, the barristers’ society’s acting director of professional responsibility. “Many lawyers who end up in disciplinary action don’t belong there.”

A high percentage of lawyers in the province that go before a formal hearing have physical or emotional problems, including addiction, she noted.

A new fitness to practice model is being developed to address this issue — and to lend a helping hand to lawyers in the province. Proposed amendments to the Legal Profession Act, which will allow the society to divert members from the complaint investigation process to a rehabilitation process, have now been drafted and approved by the NSBS council. They are currently making their way through the government approval process.

Under the proposed model, a fitness to practice committee would be established. The committee, which would include health professionals as well as members of the legal profession, would oversee the complaint process — which includes an element of rehabilitation. Members must first consent to being part of the process, designed to help them return to practice and address the complaint.

“The concept is that there would be a remedial agreement between the society and the member,” said Hickey.

“The fitness to practice model,” she added, “is not described as discipline per se. It should, if it works correctly, have the effect of protecting the public interest while helping the lawyer.”

A helping hand does not translate into a slap on the wrist. “If [a lawyer] withdraws consent, they will move back into the disciplinary stream,” said Cumming.

Also, she noted, “if the conduct is so egregious, it wouldn’t be pursued through this stream.”

Lawyers could find themselves before the fitness to practice committee as a result of one of three situations. A complaint could be laid by a client; a colleague or friend could come forward to the society; or a member could self-report. The latter route may be the least-used option. Indeed, said Hickey, “whether that happens or not remains to be seen, [but] the potential for that is there.”

In addition to remediation, there will be another big difference between the discipline process and the fitness to practice stream: visibility. The legislated discipline process calls for an open public hearing. That would not take place under fitness to practice.
In preparing its new model, the barristers’ society examined the cases that were coming into the disciplinary process and took a close look at what other professions were doing to address fitness to practice issues. That first look began almost two years ago.
More time will be needed before such a stream becomes reality. The earliest the amendments will be passed by government is next spring, said Hickey.

“Once passed,” she added, “then regulations and policies have to be developed [although] significant work has been developing on these fronts already.”

Ultimately, what is good for lawyers is good for the profession — and for clients. “We want to be able to keep members in practice,” said Cumming. “This will offer further rehabilitation that our current process doesn’t.”

Nova Scotia may be the first province in the country to implement a fitness to practice stream, but the problems driving this initiative are national in scope. According to the Ontario Lawyers’ Assistance Program, “Lawyers and judges have a rate of addiction three times that of the general population.”

For lawyers going through the disciplinary process, the rate is even higher. A recent study of discipline cases in Ontario, for example, found that approximately half of all lawyers who were facing serious disciplinary sanctions had an alcohol problem, a drug addiction or a psychiatric illness.