If a lawyer with a seizure disorder misses court because of a seizure and the client complains to the Law Society, how should that complaint be handled?
If a lawyer with a substance use disorder misses court because of drug or alcohol use and the client subsequently complains to the Law Society, how should that complaint be handled?
To Jonathan Chapnick of Vancouver’s Portage Legal Services, they ought to be treated primarily the same. Chapnick has worked for unions and employers for 15 years and is an expert on workplace law and policy, especially in the area of mental health and substance use.
“Both complaints are connected to health issues, yet many lawyers and law societies might not see it that way and seem convinced that these two similar situations demand two dramatically different responses.” When asked why this is the case, Chapnick offers a simple response: “Stigma.” In 2018, Chapnick presented to the Law Society of BC’s Mental Health Task Force on how it regulates lawyers with mental health and substance use disorders. “In the legal profession, like almost everywhere else, attitudes toward substance use reflect dominant beliefs and misperceptions, including the idea that addiction is a moral failing, rather than a health or socio-political issue. People with substance use issues are imputed with undesirable characteristics, which often gives rise to a coercive and judgmental response. It’s no wonder many folks are scared to seek help.”
Substance use is one the most thorny and pervasive issues in the profession. A 2016 study by the American Bar Association/Hazelden Betty Ford Foundation found one in three practicing lawyers to be engaged in heavy drinking, based on the volume and frequency of alcohol consumed. According to the Legal Profession Assistance Conference of Canada (LPAC) various studies cite the rate of substance use as somewhere between 15% and 24%. And that’s before the pandemic. Since then, substance use and mental health diagnoses spiked further. Women’s heavy drinking in general jumped 41 percent and a 2021 survey of lawyers in California and DC also found risky/hazardous drinking significantly higher amongst female lawyers. Recognizing the need for fresh data, the Federation of Law Societies is currently surveying Canadian lawyers about mental health and substance use. Studies to date suggest the vast majority of discipline matters involve Alcohol Use Disorders.
Yet alcohol is woven into the reward system of many legal firms. Champagne corks pop with big wins. Long days crafting briefs become long nights unwinding in the bar. The work culture rewards those with more billable hours, which invariably creates more stress.
Canadian businesses, including law firms, have made significant gains supporting employees as they face mental health challenges. Yet substance use, which makes up 33 percent of all mental health issues, is still steeped in stigma. Most people so fear being labeled with a drinking problem, it’s estimated only 1 in 10 seek treatment. According to the Law Society of BC’s Mental Health Task Force, very few lawyers disclose substance use to regulatory bodies, fearing both discipline and the judgment of colleagues. “Why would they?” asks Chapnick. “The only certainty that comes with disclosure is stigma, and it plays out in at least a couple of ways.” First, social stigma operates on a group level and plays out behaviourally. Members of a large group, say a Law Society – might believe lawyers battling addiction are less competent, so they don’t refer clients to them . “That’s social stigma and it’s often scaffolded on dated, erroneous beliefs and poorly extrapolated data.”
Then there’s structural stigma, where lawyers with addictions face policies that control their behaviour, creating intrusions and impositions not placed on lawyers with other personal issues or health conditions. For instance: forcing lawyers to attend costly and invasive “Independent Medical Exams” where they have no choice in doctor or treatment and attendance is compulsory. This is not the standard in other health care. .
As a result, says Chapnick, lawyers with substance use disorders might not get the treatment or support they need. “And for some, this might mean that their health or personal circumstances will get worse and could start affecting their professional practice.” That usually results in expensive trips to rehab and the beginning of a regulatory process that many with addiction issues feel is punitive.
“Quite often this creates more anxiety and fear in the lawyer battling substance use, because the current patient experience is broken,” says Elliot Stone, the CEO of ALAViDA, Canada’s first completely virtual, evidence-based substance use treatment available directly on employees’ smartphones. “The vast majority of traditional rehabs do not yet offer a broad range of evidence-based treatment. Few have medically trained specialists and medication. Wait times range from 17 to 52 days. There is a one-size-fits-all approach, regardless of the severity of the problem."
Damage mounts to both the employee and the workplace. Disability costs skyrocket. “These types of problems are avoidable, argues Chapnick. “Evidence supports a variety of addiction treatment options and therapeutic approaches, including early and preventative interventions that can result in positive health outcomes. But none of these options and supports really matter if employees and legal professionals can’t access them.”
“We think the key to getting in front of this tsunami of substance use, is to make a benefit available pre-disability and make it available to all employees, not just the ones with substance use challenges. We confidentially deal with all levels of substance use, mild, moderate, or severe and we help employees who just want to incorporate a healthier approach to alcohol use in their lifestyle. That in itself is de-stigmatizing,” according to ALAViDA’s Stone. “When it comes to accessing substance use treatment, we think it should be no more difficult than going to physio. The boss doesn’t need to know about an employee’s bad back; nor do they need to know about an employee’s substance use disorder unless it impacts work performance. We want to create a world where people seek help for their problem before it's a full-blown crisis and removing stigma is key.”
Other professions with the dual duty to protect the public and support members have recognized those with substance use disorders (SUD) are subject to discriminating policies. A report coauthored by the BC Nurses’ union calls for reforming how nurses with SUDs are treated. “BC nurses with SUDs are usually offered a cookie-cutter treatment approach, regardless of the severity of the disorder, job environment and work duties … leaving nurses with SUDs at high risk of relapse." The report describes how those nurses are asked to undergo an independent medical exam (IME), "which is often carried out by one of a small number of physicians, many of whom have a financial interest in a monitoring company." The BC Law Society recognizes the limits of current approaches and its Benchers have adopted a recommendation for an alternative discipline process based on the report of the Mental Health Task Force.
Key to ensuring lawyers get the help they need early: education at the managing partner level that’s geared to addressing structural problems, like improving working conditions that increase lawyer’s vulnerability to substance-related harms. Firm leaders also need to adopt a more compassionate tone, so lawyers will feel more supported and less judged. The pay off in adopting a fresh approach is huge: a much healthier workforce and an astounding 565 percent return on investment. “It’s good business,” says ALAViDA’s Stone “and it’s the right thing to do.”
To learn more about evidence-based substance use treatment, contact firstname.lastname@example.org.