Addressing the Elephant in the Legal Profession: The Lawyer’s Struggle with Mental Health

I. SPEAKING OUT ABOUT MENTAL ILLNESS

On October 23, 2018, the University of Saskatchewan College of Law welcomed Orlando Da Silva to give a speech on mental health among lawyers as part of the McKercher Lecture Series.¹ Mr. Da Silva, Senior Crown Counsel at the Serious Fraud Office – Prosecution Division, delivered a raw, candid, and moving lecture on his own personal struggles with depression, his suicide attempt, and the overall prevalence of mental illness in the legal profession. Mr. Da Silva is an accomplished lawyer and a perfect illustration of how an individual’s outward appearance and success is not always a reflection of their mental health. However, Mr. Da Silva is not the only example of a successful lawyer who struggles with mental illness.

Without prioritizing the battle against the stigma of mental illness, individuals in the legal profession will continue to struggle silently. The impact that mental illness has on the legal profession is not limited to the disastrous consequences for individuals, as it can also have negative repercussions on the profession as a whole because of the causal connection between mental illness and misconduct. Therefore, the strong grip that mental health problems have on the legal profession desperately needs to be addressed. Leaders in the profession need to begin speaking out about their own experiences with mental illness in an attempt to normalize and de-stigmatize the discussion.

II. THE PREVALANCE OF MENTAL ILLNESS IN THE LEGAL PROFESSION

The prevalence of mental illness and addictions issues is continually reported to be higher for lawyers than for the general population. Studies have found that lawyers may have the highest depression rates among various occupations, with lawyers experiencing depression four times more often than the rest of the population.² In the United States, a study found that 28 per cent of lawyers struggle with depression, 19 per cent experience anxiety and 11.5 per cent have had suicidal thoughts.³ When contrasted to the general population in Canada, in which 8 per cent of people experience a major depression and 12 per cent experience an anxiety disorder during their life,⁴ the percentage of lawyers suffering from mental illness is alarming.

There have been multiple explanations put forward in an attempt to explain why lawyers are at an increased risk for developing mental health issues. While some individuals have a predisposition to mental health issues based on their childhood or genetics, as was the case for Mr. Da Silva, in other cases, the profession itself contributes to the onset or worsening of mental illness. One theory put forward to explain this focuses on the long hours that lawyers are expected to work.⁵ From this perspective, lawyers devote their lives to the interests of others, working long, exhausting, and sometimes lonely hours to resolve their client’s legal issues but neglecting their own emotional needs.⁶ The long work hours dedicated to the needs of others prevents many lawyers from achieving a work-life balance conducive to overall well-being.

Another factor that is commonly thought to cause mental health issues in lawyers is law school. Studies have found that between 20 and 40 per cent of law students suffer from clinical depression by the time they graduate and that the prevalence of anxiety and depression among law students is eight to fifteen times that of the general population.⁷ The increased prevalence of depression and anxiety in law students may be explained by the competitive nature of law school, high expectations of success, and the diminished pool of future job prospects due to the economic downturn.⁸ Additionally, law students are taught to “think like a lawyer,” which often includes qualities such as detachment, adversarialism, and neutrality, which require some degree of pessimism and contribute to mental health issues.⁹

Whatever the cause of the increased prevalence of mental illness in the legal profession may be, it is evident that this issue needs to be addressed. Since law school seems to be a cultivator of mental illness, law schools need to work to address the factors contributing to decreasing mental health among law students who then enter into the legal profession in vulnerable conditions. Additionally, law firms and individuals may need to adjust their billable hour expectations to address the alarming rates of mental illness among lawyers.

III. THE CONNECTION BETWEEN MENTAL ILLNESS AND MISCONDUCT

The prevalence of mental illness in the legal profession not only impacts individual lawyers, but also has detrimental impacts on the profession as a whole. Lawyers who have untreated mental health issues are more likely to harm clients and find themselves the subjects of law society complaints and disciplinary procedures.¹⁰ Consequently, various law societies in Canada have begun to recognize the role that mental illness plays in misconduct and incompetence cases.¹¹

The Law Society of Upper Canada (now Ontario) has lessened the penalty for serious professional misconduct in some cases where mental illness played a role in the commission of the offence. For example, Zygmunt Fenik faced fifty particulars of professional misconduct that occurred over a significant period of time and adversely impacted many clients.¹² In ordering a twelve-month suspension,¹³ the Law Society held that Fenik’s clinical depression largely explained his misconduct, thereby mitigating the seriousness of his offenses.¹⁴

George Flumian also faced a term of suspension after allegations of misconduct. However, the Law Society of Upper Canada held the following:

Ordinarily, Mr. Flumian’s misconduct, coupled with a discipline history and prior suspension, would attract an added suspension. However, his mental illness compels a different result. It is not mere background information. It explains why the misconduct occurred.¹⁵

The Law Society recognized that Mr. Flumian’s mental illness was a causal factor in his misconduct and mitigated the penalty as a result.¹⁶

The various law society decisions holding that mental illness can cause or contribute to misconduct or incompetence illustrates the importance of addressing the prevalence of mental illness in the profession, not only for the benefit of lawyers themselves but also for the betterment of the profession. By addressing the mental health problems infiltrating the profession, it may also help lessen the number of law society complaints and thereby increase the public’s confidence in the administration of justice.

IV. THE STIGMA OF MENTAL ILLNESS

One of the first steps that must be undertaken to address the prevalence of mental illness in the legal profession is addressing the stigma that is associated with it. Various myths and stereotypes hold that mental illness is a sign of weakness,¹⁷ that people with depression choose to be down, and that mental health problems are not the same as physical disabilities.¹⁸ Because of these myths and stereotypes, people with mental illnesses often experience stigma through inequality of employment and the loss of social support networks, which prevent them from seeking help.¹⁹ Legal professionals face the same stigmatization and fear that speaking out will negatively impact their professional standing or ability to practice and provoke judgement from their colleagues and clients.²⁰

One of the major problems associated with stigmatization is the widespread misconception among lawyers with mental health issues that they are the only members of the profession dealing with mental illness.²¹ One problem with this perspective is that it discourages lawyers from speaking out about their mental health challenges and prevents them from getting help. This belief held by individual lawyers that they are alone in having mental health issues is mistaken due to the high percentage of lawyers struggling with mental health problems.

Furthermore, stigma is one of the major barriers preventing people from seeking help and taking steps to begin recovery.²² There needs to be a multi-faceted and multi-organizational effort to attack the stigma associated with mental illness in the legal profession. Individuals, law schools, law firms, and law societies need to work together to diminish the stigma. Doing so will not only assist individual lawyers practicing in the profession but will also help improve the profession as a whole by recognizing the impact mental illness has on misconduct and incompetence.

V. CONCLUSION

It is easy to turn a blind eye and avoid the problems of mental illness in the legal profession. It is also simple to place the responsibility on individual lawyers to recognize their own problems and to seek help themselves. Some might argue that if a lawyer is struggling, they should make an effort to change their lifestyle to address their mental health problems and that this is not a problem for the profession a whole. But to argue this neglects the rampant problem in the legal profession. Turning a blind eye and placing blame on individuals increases the isolation and stigmatization of lawyers who suffer in silence. Each person within the legal profession has a responsibility to it to work to address these issues. Doing so will improve the profession as a whole and enhance the lives of many who feel that they cannot seek help because of the implications it may have on their livelihood. Lawyers who suffer from mental illness should not have to feel as though they are living in a “black gulf of solitude more isolating than that which surrounds the dying man.”²³ It is imperative that leaders in the profession, like Mr. Da Silva, speak out and speak up in an effort to strengthen the fight against the stigma of mental illness.

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^* University of Saskatchewan, College of Law (JD Candidate 2019).

¹ Fostering Support: Mental Health Among Lawyers” (2018 Saskatchewan Law Review Lecture delivered at the College of Law, University of Saskatchewan, 23 October 2018) [unpublished], online (video): <https://law.usask.ca/events/mckercher-llp-lecture-series.php#Lecturevideos>, archived: <https://perma.cc/499E-3G8D>.

² Mood Disorders Society of Canada, Bell Let’s Talk & the Canadian Bar Association, “Module 1: Mental Health and Addiction. Depression”, online: MDcme.ca <https://www.mdcme.ca/lms/courses/stigma_legal/design/?pages/depression.asp>. This online self-learning program for judges, lawyers and law students, portions of which are subsequently cited in footnotes 10, 17 and 19–22, can be accessed by creating a free account at the above link.

³ Martha Middleton, “Big trouble: experts say substance abuse and mental health issues are a growing problem for the legal profession” (2015) 101:12 ABA J 63 at 63.

⁴ Mood Disorders Society of Canada, “Quick Facts: Mental Illness & Addiction in Canada” (November 2009) at 3, online (pdf):<https://mdsc.ca/documents/Media%20Room/Quick%20Facts%203rd%20Edition%20Referenced%20Plain%20Text.pdf>, archived: <https://perma.cc/7GYT-YE73> [Mood Disorders Society of Canada, “Quick Facts”].

⁵ See e.g. Daniel S Bowling, III, “Lawyers and Their Elusive Pursuit of Happiness: Does it Matter?” (2015) 7 Duke F L & Soc Change 37 at 43.

⁶ Ibid.

⁷ Hollee Schwartz Temple, “Speaking Up: Helping Law Students Break Through the Silence of Depression” (2012) 98:2 ABA J 23 at 23.

⁸ Ibid at 24.

⁹ Molly Townes O’Brien, Stephen Tang & Kath Hall, “No time to lose: Negative impact on law student wellbeing may begin in year one” (2011) 2:2 International J First Year Higher Education 49 at 56–57.

¹⁰ Mood Disorders Society of Canada, Bell Let’s Talk & the Canadian Bar Association, “Module 2: The Impact of Stigma. Avoidance of Help”, online MDcme.ca: <https://www.mdcme.ca/lms/courses/stigma_legal/design/?pages/avoidance.asp> [Mood Disorders Society of Canada, “Avoidance”].

¹¹ See e.g. Law Society of Upper Canada v Kelly, 2014 ONLSTA 16; Law Society of Saskatchewan v Wappel, 2016 SKLSS 9; Law Society of Saskatchewan v Winegarden, 2017 SKLSS 8.

¹² Law Society of Upper Canada v Fenik, 2005 ONLSHP 25 at paras 8–9.

¹³ Ibid at para 93.

¹⁴ Ibid at para 79.

¹⁵ Law Society of Upper Canada v George Flumian, 2013 ONLSHP 92 at para 21.

¹⁶ Ibid at paras 28–29.

¹⁷ Mood Disorders Society of Canada, Bell Let’s Talk & the Canadian Bar Association, “Module 2: The Impact of Stigma. Stigma in the Legal Profession”, online MDcme.ca: <https://www.mdcme.ca/lms/courses/stigma_legal/design/?pages/stigma_in_legal.asp> [Mood Disorders Society of Canada, “Stigma Legal Profession”]; Mood Disorders Society of Canada, “Quick Facts”, supra note 4 at 45.

¹⁸ Mood Disorders Society of Canada, “Quick Facts”, supra note 4 at 40. See, for example, the fact that Canadians judge people who have depression as unlikely to be able to fulfill roles such as a teacher, parent, or police officer, or the fact that individuals are least comfortable with people with depression and most comfortable with those with a physical disability.

¹⁹ Mood Disorders Society of Canada, Bell Let’s Talk & the Canadian Bar Association, “Module 2: The Impact of Stigma. What Does Stigma Look Like?”, online MDcme.ca: <https://www.mdcme.ca/lms/courses/stigma_legal/design/?pages/what_does.asp> [Mood Disorders Society of Canada, “Impact of Stigma”].

²⁰ Mood Disorders Society of Canada, “Stigma Legal Profession”, supra note 17.

²¹ Mood Disorders Society of Canada, “Avoidance”, supra note 10.

²² Mood Disorders Society of Canada, “Impact of Stigma”, supra note 19.

²³ Oliver Wendell Holmes quoted in Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (New York: Farrar, Straus and Giroux, 1994) at 86.