The Impact of Health on Discipline

For over a decade, the Law Society of British Columbia (LSBC) has recognized the impact of physical and mental health on the ability of lawyers to meet their professional obligations. In 2018, the Benchers established the Mental Health Task Force  with a mandate to:

• Identify ways to reduce the stigma of mental health issues
• Develop an integrated mental health review concerning regulatory approaches to discipline and admissions

The challenge has been translating intentions into deeds. The traditional approach of LSBC Discipline has been to treat alleged misconduct using an objective standard. This is often described as a “marked departure from that conduct the Law Society expects of its members; if so, it is professional misconduct” (Law Society of BC v. Martin, 2005 LSBC 16). However, this approach inadequately considers the subjective characteristics of the lawyer.

In the Law Society of BC v. Ahmadian, 2023 LSBC 14, paras 109ff, the LSBC argued that the lawyer’s mental state only went to mitigation, not to determination of misconduct. The panel accepted that LSBC argument. Mr. Ahmadian successfully appealed the decision to the BCCA. He argued that the hearing panel erred in failing to consider his mental state at the time of the infractions.

On Appeal, Ahmadian v. LSBC, 2023 BCCS 470, Justice Willcock wrote, “the Panel did not appropriately weigh the gravity of the breaches and the appellant’s state of mind and, as a consequence, erred in assessing the resulting harm to the integrity of the legal profession and the administration of justice.”

The hearing panel relied on the Martins and the Lyon’s Factors. These arise from Law Society of BC v. Lyons, 2008 LSBC 09, where the panel set out the factors to consider in determining whether the given conduct rises to the level of professional misconduct:

• The gravity of the misconduct
• The duration of the misconduct
• The number of breaches
• The presence or absence of mala fides
• The harm caused

The BCCA raised considerable concerns about how the Hearing Panel considered evidence of Ahmadian’s mental health. Ahmadian argued that his mental health condition impacted his decision making and cognitive functioning. Further, he argued that these conditions were “contributing causes” of the conduct, such that his conduct did not constitute bad faith (mala fides).

Ahmadian backed up his diagnosis with expert evidence from two doctors. The Discipline Panel was dismissive of the doctors’ evidence. The BCCA concluded that the Discipline Panel had erred in not considering Ahmadian’s mental health and referred the matter back to the Discipline Panel.

Lawyers are already hindered by the stigma attached to health issues, particularly mental health issues. This can unfairly impact their reputation, client acquisition, and career development. This can lead lawyers to minimize the effect of illness on their practice or be reluctant to seek help. This risk can silence lawyers and lead to injustice.

Notwithstanding the declarations from the LSBC and the BCCA ruling, lawyers continue to have the impact of their health conditions minimized in disciplinary action. In a 2024 case, after Ahmadian, an order allowed the respondent lawyer and the LSBC to obtain expert reports on the impact of illness on a lawyer. The LSBC did not pursue a report. Instead, they opposed the respondent’s neurologist’s report because the report was based largely on self-reported symptoms.

Within the LSBC discipline process, lawyers often try to hide health issues. They fear that the LSBC will publicly disclose their illness. This could be addressed by anonymizing cases where health plays a significant role in the conduct. Doing so would not conflict with the public interest.

Lawyers are held to a higher standard, so should the Law Society. At a minimum, the LSBC should take into account a lawyer’s individual challenges in the administration of discipline.

Final Note:

Obtain independent legal advice before making a substantive response. Even if you just have a one-hour consultation with a lawyer who has experience defending counsel, you will be better able to address the investigator’s concerns. The LSBC keeps a list of counsel willing and able to assist lawyers facing discipline.