NSBS in the news

The following media reports were published since the last edition of InForum:

National | March 27, 2014
by Kim Covert

Crowdfunding effort seeks $30K for Trinity Western challenge
Canadian Lawyer | March 24, 2014
By Glenn Kauth

Canada's Law Credentialing Body Called Out on 'Audacious Prejudice' Against Christian Law School Trinity Western University 

Non-Discrimination in Legal education in Canada: Nova Scotia Barristers Society is Canada's first to undertake public consultation on recognizing Trinity Western U
Halifax Media Co-op | March 18, 2014
by Sarah Slaunwhite

Allnovascotia.com (subscription only)

  • Lawyer Briefly Banned, Dinged for $46,000, March 26, 2014

Nova Scotia stresses rehabilitation over discipline for troubled lawyers
Lawyers Weekly | March 28, 2014
By donalee Moulton

The Nova Scotia Barristers’ Society (NSBS) is opting for rehabilitation over discipline for lawyers who find themselves in trouble, an approach that appears to be capturing the interest of law societies across the county. The organization’s Fitness to practise program, which began three years ago, is the only one of its kind in Canada, and one of only a few such programs in all of North America.

“Nova Scotia is breaking new ground. In the legal profession, it is unique. It is standalone and focused on lawyer capacity,” said NSBS executive director Darrel Pink in Halifax. “Other societies are doing lots to address the issue but all under the rubric of discipline. Our focus is exclusively on rehabilitation. We recognized too many lawyers here and across the country were going through the [discipline] process without getting better.”

The Fitness to Practise program, based on a similar process in place for nurses in Nova Scotia, is intended to help lawyers get healthy and atone for their errors. Jack Innes, counsel with McInnes Cooper in Halifax and chair of the seven-member Fitness to Practise committee, compares the program to adult diversion in the justice system. “This is reflective of the cause of complaints,” he said.

According to Pink, upwards of 60 per cent of lawyers involved in a disciplinary process have a mental health or addiction issue. Under the program, these lawyers are flagged by the NSBS disciplinary committee or its executive director for possible inclusion in the Fitness to Practice program. An independent psychiatric exam is conducted as a first step and a medical report prepared for review.

“There has to be evidence of incapacity,” noted Elaine Cumming, the barristers’ society’s professional responsibility counsel.

Once a lawyer is deemed eligible for the program, they must consent to take part. That can be difficult given the person’s illness. “We get them a lawyer. Our agreement requires this,” said Innes. “We have lawyers on a pro bono basis that will provide this.”

Lawyers in the program may be monitored or temporarily suspended while they recover. If suspension is required, it is confidential — unlike the disciplinary process, which requires placement of an advertisement to inform the public. “It’s all designed to get the lawyer back to work at full capacity,” Pink said. Although lawyers can avoid public scrutiny and the attending shame, being part of the Fitness to Practice program is not easy. “This is not discipline-lite,” Innes said. “The person truly has to open up their kimono the whole way. There is no holding back. They have to do everything we ask, or they get bumped out.”

Many experts believe offering a carrot, however raw, is more beneficial and effective than the use of a stick. Doron Gold, a former practising lawyer and now a psychotherapist with the Member Assistance Program for lawyers in Ontario, believes the NSBS approach to helping lawyers in trouble is a step in the right direction. “It’s a good start. It’s hard to say how it will ultimately play out, but it’s exactly the right mindset to have around discipline.”

As mental health issues have come out of the shadows and the stigma attached to diseases like depression is slowly dissipating, the profession and public have become more accepting of such an approach. “We’ve evolved over time from viewing them as character flaws to recognizing these are diseases. They should elicit compassion in a disciplinary context,” Gold said.

According to the Canadian Mental Health Association, 20 per cent of Canadians will personally experience a mental illness in their lifetime. “It is so prevalent that to ignore it is to be wilfully blind,” said Gold. Since the first referral to the Fitness to Practice program in early 2011, seven lawyers have been referred to the program which followed amendments to the Legal Profession Act that allowed it to proceed.

“It’s too early to tell if it’s working,” Pink said. “We will do a formal evaluation next year.” In the meantime, other provincial law societies are looking with some interest at Nova Scotia’s  program. Presentations have been made in several provinces including Manitoba and Saskatchewan, and Ontario is currently considering launching a similar initiative.

The interest is understandable, said Gold. “Why would we go to a punitive approach? Why don’t we protect the public and help the lawyer?”