Mental health’s toll

Nova Scotia Judge Timothy Daley has experienced first-hand how a mental health issue can impact a career and personal life.

Daley, who was called to the Nova Scotia bar in 1992, was barely starting his legal career when his wife and high school sweetheart discovered a lump while breast feeding their young son. The couple were both 32. She died from breast cancer in 1994. A hearty New Foundlander who grew up in the 1970s, Daley did what was common for men from his community at the time — he “bottled” up the loss, he says. “Men were men and you don’t cry and you don’t react, and so I didn’t.”

He soldiered on, remarried, had more children and grew his family law practice in the small town of New Glasgow, N.S.

Years later, though, it hit him. He began to lose focus, gain weight and became listless. By the end of the day, he could barely keep awake. He became emotionless and found it hard to get up in the morning.

“I finally collapsed in this emotional mess that I had failed to address early on,” Daley says, and unbeknown to those around him, he contemplated suicide.

At the same time, both his spouse, Elizabeth, and his then law partner, Frank DeMont, saw his decline and urged him to seek the help of his family doctor. Thus, he says, “my recovery began.” He contacted the lawyer’s assistance program, got a psychologist involved, went on medication for a while for depression and, over three years, he says, “I climbed back out.”

Mental health in the workplace is a growing concern and spring is when suicide rates spike.

According to statistics compiled by The Centre for Addiction and Mental Health, mental illness costs the Canadian economy $51 billion annually. Each week, approximately 500,000 employed Canadians cannot work due to mental health problems. Moreover, the cost of a disability leave for a mental illness is about double the cost of a leave due to a physical illness.

According to CAMH, one out of five Canadians will experience either a mental illness or addiction problem in their lifetime, and, by the time Canadians are 40, one out of two either have or have had a mental illness.

When he became president of the Nova Scotia Barristers’ Society in 2012-2013, Daley made it a point to speak about mental health issues facing the legal profession.

“Depression is as common as dirt,” says the outspoken judge, who was appointed to the Nova Scotia Provincial and Family Court in 2015. He cites statistics that show lawyers suffer depression at a rate that is 3.6 times greater than the general population, and lawyers have the highest rate of depression among all professions. Moreover, while suicide is the ninth leading cause of death among the general population, it is the third leading cause of death for lawyers.

Mental health in the profession has become a big focus since a 2016 study of almost 13,000 U.S. lawyers found “substantial rates of behavioral health problems.”

Among the key findings:

• 20.6 per cent screened positive for hazardous, harmful and potentially alcohol-dependent drinking;
• 28 per cent experienced symptoms of depression;
• 19 per cent showed anxiety;
• 23 per cent exhibited stress.

Moreover, a 2018 Canadian study found that higher-status lawyers in large firms report more depression than their lower-status colleagues. That’s at odds with other professions, where the higher status you achieve, the lower the likelihood of a mental health issue. To state these findings slightly differently, it means that high-earning rainmakers are at risk of suffering depression.

The above studies and statistics should concern those who manage law firms, since a law firm is a collection of highly talented professionals whose success or failure depends on how well its lawyers perform.

The growing mental health crisis is not lost on legal regulators and bar associations, which have been taking a more proactive role in the mental health of their members.

Part of the problem is that law is a high-pressure, competitive and adversarial environment where you are trained to be a pessimist. Not only do you fight competitors for business, but competition within law firms for recognition can also be intense. The Canadian study found that overwork and work-life conflict were two stressors that added to the problem.

Daley says that, when it comes to addressing mental health in the profession, “I think institutionally, we are moving the needle.” Legal regulators such as Nova Scotia, Ontario and B.C. have undertaken several initiatives to reduce the stigma of mental illness and help lawyers who are experiencing a mental issue.

“Most of the legal profession is attune to the whole issue,” says Diana Miles, CEO of the Law Society of Ontario. The LSO approved its mental health strategy in 2016, and it has been rolling out various initiatives since then. Its Member Assistance Program, which is run by Homewood Health, was named a top program last year by the Employee Assistance Society of North America.

Miles says seven per cent of members use the service, compared to a two- to three-per-cent average for most employee assistance plans. The LSO plan extends to lawyers, paralegal judges, law students and their families.

Miles says the LSO has also expanded its duty counsel program for self-represented lawyers who may be suffering a mental health issue, and its program that oversees a lawyer’s capacity to practise has professionals experienced in mental health issues, including a nurse.

The LSO is also looking at diversion programs for discipline cases where mental health is an issue, a program that the Nova Scotia Barristers’ Society has in place.

Discipline is also now considering mental health. A 2018 ruling in Law Society of Ontario v. Yantha, which involved overbilling legal aid, found the lawyer’s “depression and alcoholism made him reckless.”

The tribunal held that “we accept that his depression and alcoholism are causally connected to the misconduct.” The lawyer in that case was allowed to surrender his licence and the case is seen as a major step forward in accepting mental health as a defence in discipline cases.

The Law Society of British Columbia also has a task force actively pursuing mental health issues in the profession. In December, it issued its first interim report making 13 recommendations, including boosting mental health awareness and education among the profession, providing practice advisors and practice standards lawyers with more specialized training and education in mental health and substance abuse issues, as well as establishing a roster of mental health professionals that can be called on when a capacity issue arises.

Brook Greenberg, who chairs the task force, says that, when it comes to mental health, lawyers are “reluctant to say I have my own problems because you are supposed to be the problem solver.”

“Most law firms know that lawyers are their most important assets,” says Greenberg. That’s why firms need to consider taking a “more active stance” in helping their lawyers.

Daley says firms are quick to accommodate lawyers who have a disease such as cancer, but there is a stigma attached when it comes to mental health.

“Mental health is treatable and controllable,” he says, noting that “there have been no ill effects” since his diagnosis. “Mental health is a disease; it’s not your fault.”

Greenberg adds that removing the stigma is key. He became involved in mental health after being asked to represent a group of students who were concerned that, at the licensing stage, they had to disclose issues of mental health. Such a requirement essentially forces people underground and dissuades them from seeking help when they need it, he says, because they fear the consequences.

It’s not just regulators tackling mental health; more law firms and legal associations are also getting actively engaged.

Cheryl Canning, chairwoman of the CBA’s wellness committee, says the CBA has an online mental health education course, which some law firms have made mandatory for their lawyers to complete. “I think this shows real leadership and a commitment to changing the culture,” she says.

One law firm working to change the culture is Cassels Brock & Blackwell LLP. It has created professional development programs centred on mental health and wellness. Firm lawyer Robert Cohen says, “We have tried to be at the forefront of making mental health resources available to all members of the firm.”

For example, the firm has more than a dozen staff and lawyers in its offices who are certified to provide mental health first aid.

Cohen says accommodating a mental health issue is a “bare minimum legal obligation” and law firms need to go further. His firm promotes firm-wide acceptance and empathy when it comes to mental health, he says. There is “no judgment” and the firm makes it clear to lawyers that coming forward and seeking help “isn’t going to limit your career. We are going to do whatever we can to assist,” he says.

That’s music to Daley’s ears, who says it’s important that law firms walk the talk, and he’s concerned not enough do.

Daley recently appeared in a video for the Canadian Bar Association’s efforts to raise mental health awareness, but it’s a far cry from his previous days as a lawyer, when he travelled all over to speak to legal groups.

Since being appointed to the bench, those calls have unfortunately dried up and Daley now speaks mostly to educators about mental health problems.

He says he welcomes the opportunity to speak to his legal brethren. “Every time I talk about this publicly, it takes a little bit of the pain away of [my first spouse’s] death and honours her death,” so it adds meaning to her life, he says.

At a time when mental health education and awareness is high on the list of priorities in the legal profession, I know a good spokesperson for the cause. Just call Judge Daley.

Jim Middlemiss is a principal at WebNewsManagement.com.