Ethics, legal professionalism and mental health

By Paula Baron and Lillian Corbin

The growing awareness of mental health issues in the legal profession has significant implications for those entering the legal profession and for their ethical conduct. Knowledge that lawyers, as a profession, have higher rates of depression, anxiety, substance abuse and suicide than other trades and professions has been well documented for over 30 years in the US. In Australia, the phenomenon came to light with the report Courting the Blues in 2009. Since that time, there has been a significant body of work by law societies, legal academics, and organisations such as the Tristan Jepson Memorial Foundation and beyondblue to try to address the issues of lawyer distress. Initiatives range from confidential lawyer helplines to mindfulness programs and organisational and individual strategies to promote well-being.

For lawyers, it is important to understand the linkages between misconduct and lawyer mental health. A few years ago, the then Legal Services Commissioner for Queensland, John Briton, estimated that some 30 per cent of misconduct cases were related to lawyer mental health issues.

Currently, we are analysing in more depth the intersection of ethical transgressions – misconduct – and mental health issues of the lawyers concerned in the misconduct. We are also looking at cases where applicants for admission have disclosed mental health issues. Our preliminary findings are that Tribunals and Courts are sensitive to mental health issues, and seek to strike a balance between protecting the public, protecting the reputation of the legal profession and safeguarding the rights of the lawyers concerned.

Admission will, of course, be of significant interest to law students given the necessity to disclose mental health issues. The principles governing this area were well articulated in Application for Admission by B as a Legal Practitioner [2016] ACTSCFC 2 (14 November 2016), where an applicant for admission had a long history of mental health and substance abuse issues. Firstly, mental illness or impairment is not of itself a bar to admission: ‘The test is whether the applicant is able satisfactorily to carry out the inherent requirements of practice as a legal practitioner. This, of course, must be assessed in the light of the applicant’s mental health’. Secondly, it was acknowledged that there are cases where professional misconduct has been caused or contributed to by mental impairment, and this must be a consideration. Thirdly, the acknowledgement by the individual concerned that he or she has a mental impairment that needs to be addressed can be important in ensuring that the disorder does not cause problems in conducting legal practice.

In this case, despite relatively recent issues of mental ill health, the findings were that the applicant’s mental health was under control and relatively stable; he was complying with his treatment regime and he showed insight into his condition and the benefits of treatment. The opinion of appropriate medical experts was positive and optimistic, though there was still some cause for concern, and there was some risk of reversion to drug use because of the stress of legal practice. Thus, given there were some concerns that the immediate post-admission period provided some risk to the applicant and, therefore, to the public, and that some further period of stability and continuing improvement in the applicant’s condition was required, admission as a legal practitioner was made subject to conditions.

Legal ethics, including the growing awareness of mental health issues, is by no means a stagnant area of law and it is fundamental to daily legal practice. We encourage you to engage with us in discussions on this subject.

Paula Baron and Lillian Corbin are the authors of Ethics and Legal Professionalism in Australia Second Edition

Ethics and Legal Professionalism

Further Reading

Norm Kelk, Georgina Luscombe, Sharon Medlow and Ian Hickie, Courting the Blues: Attitudes Towards Depression in Australian Law Students and Legal Practitioners (Brain & Mind Research Institute, University of Sydney, 2009).

Application for Admission by B as a Legal Practitioner [2016] ACTSCFC 2

Resources for Lawyers and Law Students

If you or someone you know needs help, please reach out to beyondblue or call 1300 22 4636. If you are in an emergency, or at immediate risk of harm to yourself or others, please contact emergency services on 000.

The Tristan Jepson Memorial Foundation has information about mental health and wellbeing for lawyers and law students, including a Lived Experience Forum and directory of support services and resources.

For Australian tertiary students, beyondblue also has a free online program called thedesk which provides strategies and skills for success and wellbeing during university or TAFE.

 

 

 

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