October 2020

Ethics Check for Lawyers Series - Mental health conditions and the practice of law

October is Mental Health Month and so we have decided to kick start our Ethics Check for Lawyers Series with a bulletin about mental health conditions and the practice of law.

With 85% of lawyers reporting that they have experienced anxiety in the workplace and 33% reporting that they have experienced distress from depression[1], we explore disclosure requirements and their effects.

Mental health conditions and applying for a practising certificate

Only a ‘qualified entity’ can engage in the practice of law.  Subject to some limited exceptions, a ‘qualified entity’ in relation to an individual means someone who is admitted to practice in Australia and holds a current Australian practising certificate[2].  

Lawyers who wish to engage in the practice of law must apply to the Law Society for the grant of a practising certificate which has to be renewed each year.

The Law Society must not grant or renew a practising certificate if it considers that the applicant is not a fit and proper person to hold a practising certificate[3].

In considering whether a person is a fit and proper person to hold a practising certificate the Law Society may have regard to various matters[4], including whether the applicant is currently able to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner[5].

Not all mental health conditions will affect a lawyer’s ability to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner and this is particularly so where the lawyer is receiving treatment voluntarily and the condition is well managed.  There is no requirement to disclose in this instance. 

However, if there are reasonable grounds to believe that the mental health condition affects the lawyer’s ability to carry out satisfactorily the inherent requirements of legal practice then disclosure must be made at the time the lawyer applies for (or applies to renew) their practising certificate. 

A failure to make required disclosures to the Law Society can amount to professional misconduct or unsatisfactory professional conduct.

What happens after disclosure to the Law Society is made?

Disclosure to the Law Society of a mental health condition will not necessarily result in a finding that the lawyer is not fit to practice. 

The Legal Profession Uniform Law also applies in Victoria and the Victorian Legal Services Board has published a Mental Health Policy which sets out their approach to lawyer’s mental health conditions.  According to that policy:

“The Board will generally only consider a lawyer to be unable to carry out satisfactorily the inherent requirements of legal practice by reason of his or her mental health condition if he or she has a medical condition that:

  • is characterised by significant disturbance of thought, mood, perception or memory (including alcoholism and drug dependence); and

  • without management, has and continues to, or is likely to continue to, adversely affect the lawyer’s capacity to engage in legal practice”.

After investigating the disclosure the Law Society may:

  • require the lawyer to be medically examined and to provide further specified documents or information[6]; and

  • decide to take no further action (if for example the lawyer has a mental health condition that is adequately controlled); or

  • may seek undertakings from the lawyer, or may impose conditions on the lawyer’s practising certificate, for example, to comply with a treatment plan recommended by their treating doctor and to provide reports from their treating doctor to the Law Society at specified intervals; or

  • where the mental health condition is severe and it is necessary in order to protect the public/consumers, the Law Society may decide to vary, suspend or cancel a practising certificate[7].

Contact our Professional Conduct & Discipline Team

This article is general in nature.  If you would like legal advice about your specific circumstances then please contact the author or one of our Professional Conduct & Discipline Team.

Finally, details about the Law Society of NSW’s Solicitor Outreach Service (SOS), a confidential psychological service for NSW solicitors can be found here.

Authors: Jennifer Shaw & Snezana Roskov

 

[1] The Long Haul, Law Society Journal, Oct 2020

[2] S10(1) Legal Profession Uniform Law (NSW) (LPUL)

[3] S45(2) LPUL

[4] S45(3) of the LPUL and r13(1) of the Legal Profession Uniform General Rules (NSW) (LPUGR)

[5] R13(1)(m) LPUGR

[6] S95 LPUL

[7] S82(1)(d) LPUL