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Minding problems

Feature Articles

Cite as: September 2015 89 (9) LIJ, p.41

The problem practitioner, or the practitioner with problems? How the regulator approaches mental illness in the legal profession. 

By Michael Mcgarvie and Jennie Pakula

Snapshot
  • Depression and anxiety are relatively common within the legal profession, and the regulator is aware of the issues lawyers face in day to day practice.
  • The Legal Profession Uniform Law empowers the regulator to consider a lawyer’s current ability to meet the requirements of legal practice when determining their capacity to hold a practising certificate.
  • The regulator uses a suite of tools and personal or pastoral approaches to support practitioners experiencing mental ill health and guide them back to productive practice.
  • The high incidence of mental health problems in the legal profession is well known, and has been for years. The practice of law seems to be dogged by depression and anxiety.

    As a regulator, the Victorian Legal Services Board and Commissioner see indicators of these problems. While a small number of lawyers disclose mental health issues as possible suitability matters, we also see lawyers who receive multiple complaints, indicating some level of distress and dysfunction affecting their ability to practise, and continual issues of failure to comply.

    As the local regulator for the legal profession, the Board and Commissioner have to ensure the profession’s own high standards of conduct are upheld. The regulator also has a role in protecting consumers of legal services from the poor conduct of lawyers.

    The Board and Commissioner recognise that not all poor conduct is the result of a lawyer’s deliberate or careless actions. In our experience, things often go wrong for lawyers and consumers when the lawyer makes mistakes that ordinarily they would not make. These mistakes often have a basis in stress, anxiety and depression.

    It is an unfortunate side effect of working in a profession as highly pressured and demanding as ours that such strains, often combined with a challenging workplace culture, isolation and inadequate resources, can cause even the most resilient lawyer to make mistakes. When this happens, the regulator usually becomes involved.

    A policy framework

    The Board is required to ensure that lawyers who are unfit to practise, whether because of their behaviour or capacity, do not obtain or hold a practising certificate. As was the case under the Legal Profession Act 2004, under the new Legal Profession Uniform Law the Board may consider a lawyer’s current ability to satisfactorily meet the requirements of legal practice when granting, renewing, varying, suspending or cancelling a practising certificate. This reflects the Board’s objective to protect consumers of legal services.

    The Board accepts that a lawyer’s fitness to practise has little to do with the mere existence of a condition such as anxiety or depression. An unmanaged mental illness, however, can lead to friction and isolation, and can ultimately cause difficulties for the lawyer, and potentially their colleagues, clients, family and friends.

    Where a lawyer’s capacity to practise is affected by a serious mental illness, the regulator will often be unaware until either the lawyer discloses their condition or it becomes known through an investigation into a complaint. Unsurprisingly, lawyers do not often voluntarily disclose mental health conditions to the regulator. The acknowledged stigma of mental illness is a strong deterrent to disclosure in a professional setting. Unfortunately it also discourages lawyers from disclosing their health concerns in their private lives, to family, friends and health professionals.

    To help deal with this stigma, in 2011 the Board published its Mental Health Policy, aimed at reducing lawyers’ inhibition in seeking help with mental illnesses. The policy says practitioners are not required to disclose a condition to the regulator provided it is being effectively managed and has no impact on their capacity to practise. The Board will continue to follow this policy under the Uniform Law, unless the Legal Services Council decides on alternative guidelines.

    The policy has had two effects: first, it removed the earlier obligation for lawyers to disclose most instances of mental illness to the regulator when renewing their practising certificate. This change was based on the belief that practitioners were unlikely to seek help with their condition if they were reluctant to disclose it to the regulator in the first place. Second, it encourages practitioners to actively seek help from those who could assist with management and recovery: family, friends, colleagues and doctors. By managing their condition with the help of health professionals and their loved ones, there would therefore be no requirement to disclose their condition to the regulator.

    Voluntary disclosure

    Although rare, when a lawyer does disclose to the Board and Commissioner that they have a mental illness that affects their ability to practise, the regulator treats that disclosure confidentially and with compassion.

    In one example, a young lawyer suffered a significant breakdown after being subjected to his employer’s intimidation and verbal abuse. He experienced chest pains, anxiety and panic attacks, leading to a reliance on alcohol to self-medicate the stress. The peak of his illness involved his admission into psychiatric care. He relinquished his practising certificate, aware that his condition was affecting his ability to practise law. With the support of a new employer and his family, the lawyer’s health has improved and he voluntarily began to provide the Board with quarterly medical reports on his recovery.

    This lawyer’s disclosure and voluntary progress reports will ultimately benefit his return to practice with minimal delay as the regulator is already aware of his situation. Appropriate conditions would likely be attached to his new practising certificate, but those conditions would not be restrictive or punitive. Requiring regular health assessments, providing evidence of treatment compliance and/or working with a mentor for a period are conditions that would ultimately support the lawyer’s return to a productive and stable practice while maintaining his dignity.

    Mental health in complaints

    Each year the Commissioner receives 5000-6000 telephone contacts from people considering making a complaint about their lawyer. The number of actual complaints has been consistently about 2000, but decreasing recently due to the emphasis on encouraging people to call the Commissioner before making a complaint. Even so, not every disgruntled client complains.

    Many people make a complaint when they are in a highly emotional state. Indeed, the vast majority of complaints involve the emotionally volatile areas of family law (25 per cent), probate and administration (11-13 per cent), and domestic conveyancing, small business or personal injuries (about 8 per cent each). To that extent, a complaint may be an outflow of the stress suffered by the complainant, but that is not to say that this is the only reason for it.

    Complaints will usually come to the Commissioner only after the lawyer or the practice has already ignored or deflected a client’s complaints several times. Organised firms – regardless of their size – seem to catch and deal with complaints at once, while badly managed or poorly functioning practices may miss several opportunities to respond to a client’s concerns before the client contacts the Commissioner. From our experience, practitioners overwhelmed by the job or suffering stress, depression or anxiety tend to avoid dealing with client concerns until the problem returns to them, magnified, in the form of a formal complaint.

    On average, 8 per cent of lawyers receive a complaint in any one year, with less than 2 per cent receiving more than one. It is notable that the Commissioner seldom receives complaints about lawyers in larger commercial firms, where complaints are generally dealt with in-house and sufficient resources exist to support both clients and lawyers. This is not to say that these firms do not have such issues among their staff – merely that complaints are not indicators of these problems. Perhaps tellingly, the typical demographic of a lawyer most commonly complained about is an over 50 male sole practitioner or principal of a small suburban or rural firm. Some lawyers in these practices receive multiple complaints, year after year.

    In many cases allegations of poor conduct cannot be substantiated. While not all of these instances involve a practitioner with a diagnosed mental illness, a visit to the law practice office, however, tends to reveal several consistent themes that indicate problems in the way the practice is conducted, or problems in the practitioner’s personal life. These include:

  • high levels of stress and anxiety;
  • a dysfunctional workplace with a lack of suitable administrative support;
  • poor relationship skills, particularly in managing clients’ expectations and dealing with demanding clients;
  • an inability to say no or turn away work where there is no capacity to deal with it;
  • poor practice management and billing practices; and
  • personal and professional isolation, sometimes self-imposed.
  • In many cases, a practitioner’s underlying mental health condition comes to light only during the course of dealing with a complaint. Depression and anxiety are not uncommon factors contributing to the poor conduct at the centre of complaints that reach the prosecution stage. These often involve a series of the above problems serving as contributing factors. The Victorian Civil and Administrative Tribunal (VCAT) takes these factors into account when determining the appropriate outcome in a prosecution, and will often order the practitioner to seek the help of a mentor to provide health reports to the regulator, or undertake further training as appropriate. All is not over for practitioners who are disciplined for their mistakes. With appropriate support and guidance from VCAT, the regulator, professional associations, mentors and networks, they often continue to practise and improve their situation.

    How the regulator can help

    Because these issues tend to feed off each other, they can lead to greater problems in months and years to come. Proactive steps are needed. Here the regulator’s pastoral approach comes into play. It is particularly useful for the regulator to make contact with such people and to let them know that we do notice, and that we are not out to find fault and penalise them on the slightest provocation. Working with the practitioner, whether suffering from a mental health issue or not, we can encourage the lawyer to commit to take particular actions and to link the lawyer with someone who can support them where they have difficulty. In this way, those with mental health problems will get support to manage their condition. Lawyers are often grateful we have noticed the problem and made an effort to understand what is happening and why.

    The New Zealand experience

    In the course of dealing with complaints, it is worrying to note that there are some practitioners who simply are not cut out for the role, and may never be, even with the best mentor. Their emotional make-up and lack of business and legal skills mean that a sole or small legal practice is simply a poor fit for them.

    It is worth considering New Zealand’s arrangement, where completion of a taxing practice management course is required before a practitioner can set up on their own. The course demands not only expertise in such matters as trust accounting, but a business plan, a panel interview and some personal and psychological self-assessment. There is no such general course in Victoria, apart from the compulsory trust accounting course. If such a course spells out what kinds of skills and resources are required for a sole practitioner, there may be some self-selection that would eliminate people who perhaps are not suitable to be sole practitioners. All lawyers have their strengths and weaknesses; the context in which they practise should be one that intentionally plays to their strengths.

    Resources available

    There are many ways for lawyers to get professional help with mental health concerns, such as talking to their local doctor, Lifeline or beyondblue for immediate and continuing support. The Victorian Lawyers’ Health Line, established by the LIV, offers independent 24-hour wellbeing services for LIV members, managers and employers, as well as family members and colleagues. Online information is also available from these organisations, as well as the Black Dog Institute and the Tristan Jepson Memorial Foundation, an independent, volunteer charitable organisation established to decrease work related psychological ill-health in the legal community.

    Tristan Jepson Foundation guidelines

    The reality of mental illness as a risk requires workplaces to eliminate activities and work systems that unnecessarily, inappropriately and sometimes unlawfully add to stresses on lawyers and law firm staff. As a result, the Board and Commissioner have endorsed the Tristan Jepson Memorial Foundation guidelines as a significant initiative that will reduce the triggers and help establish psychologically healthy workplaces in the legal profession.

    ➜ We have become a signatory to the guidelines for two reasons: first, so that as an employer we can make our own workplace a better place. Second, so that as the legal regulator, we can be fully familiar with the cause, effect and solutions to fixing unhealthy workplaces. Understanding how to help lawyers in trouble should be “stock in trade” for a legal regulator. Following the guidelines itself will add to the regulator’s familiarity.

    Legal regulators, law firms, mentors and practice managers, professional associations and universities are all talking about the reality of mental illness in the law. If they are also endorsing good initiatives like these guidelines then we have a much better chance of eliminating the stigma and minimising the incidence of mental illness in the profession.

    Conclusion

    Suppressing discussions about stress, depression and anxiety and failing to understand mental illness can only exacerbate the stigma associated with mental illness. Progressive law firms do much to reduce the stigma by anticipating the existence of mental illness in the workplace and many of them act on it. The regulator, too, has been proactive in dealing with mental health among practitioners.

    The Board and Commissioner use regulatory tools and personal or pastoral approaches to help practitioners in trouble. A holistic approach using a similar mixed bag of tools has been employed in other jurisdictions with considerable success, particularly in Western Australia.

    The objective is not to cast practitioners out of the profession, but to limit the harm done to them and to their clients when things go wrong, and to guide them back to productive practice. Effective and nuanced regulation can provide considerable assistance, but ultimately the best solution is found in effective preparation and support in practice. The information gleaned from complaints also offers insights into avoiding future problems common to some practitioners – especially those practising alone or in very small businesses.

    Michael McGarvie is the Victorian Legal Services Commissioner and the CEO of the Victorian Legal Services Board. Jennie Pakula is the Manager, Assessment and Resolutions, with the Victorian Legal Services Board and Commissioner.

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