The Law Society Tribunal today dismissed an allegation of misconduct against a lawyer suffering from anxiety and depression. The Law Society of Ontario (LSO) had prosecuted him for failing to respond fully to a disciplinary investigation. The Tribunal found that his failure to fully respond was a direct result of the symptoms of the lawyer's diagnosed anxiety and depression, and that the LSO owed a duty to accommodate his mental illness in the course of its investigation, which it failed to meet.
This ruling sets an important precedent. It is the Law Society Tribunal's first in-depth treatment of the LSO's duty to accommodate lawyers with mental illness involved in its disciplinary process, and is the first time the Tribunal has dismissed a conduct proceeding because the LSO had failed to provide adequate accommodation.
Daniel Naymark of Naymark Law acts as pro bono Duty Counsel at the Law Society Tribunal and acted for the lawyer at the hearing. The Tribunal recognized his efforts in its ruling:
The outcome of the matter before me was directly attributable to the diligent, exhaustive and comprehensive efforts of Duty Counsel who remained committed to the matter from the outset, through re-attendances and written submissions. This engagement by a volunteer lawyer epitomizes the best characteristics of lawyers: that of caring, commitment and duty. These efforts were vitally important to both the licensee, who was greatly assisted, and also to the profession, one of whose members found himself in need but had been proceeding without help. As well the public interest was better protected by ensuring the conduct of an informed, balanced discipline hearing. Adjudicators in an adversarial forum are entitled to the best available assistance and thoughtful analysis reflecting the interests of all concerned, before determining evolving issues of important jurisprudence in potentially precedent-setting matters.
A copy of the Tribunal's full decision is available here.