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A Precarious Balance

Cover Story
|Written By Jennifer McPhee
A Precarious Balance

T. Sher Singh has been disbarred but says burnout had led him to leave the profession anyway. For him and other small-firm and sole practitioners, the underlying problems they face stem more from the nature of their practices than negligence.

Toronto businessman Birinder Ahluwalia was surprised when he read in a newspaper that his former lawyer Tapishar (Sher) Singh had been disbarred. The prominent Guelph, Ont.-based lawyer and Sikh community icon had done wonderful work for him — hundreds of thousands of dollars of work over the better part of a decade — and working with Singh was a positive experience, he says. “It just didn’t make sense to me, personally, having dealt with him,” he says. “It sounded . . . ridiculous.”

Indeed, the 58-year old sole practitioner and longtime race relations advocate, who was appointed a member of the Order of Canada in 2002 (his status is currently under review), had an outstanding reputation as a lawyer and was also well known for his community work and journalistic endeavours. So it came as a shock to many when he was suspended in 2005 and eventually disbarred on Sept. 11, 2007.

Singh lost his licence to practise for a host of reasons, including failing to serve clients, mishandling trust funds, misappropriating $2,000 from a client, failing to comply with an earlier order requiring him to pay $4,000 to a client and $2,000 in costs to the law society, and failing to respond to communications from the Law Society of Upper Canada. He did not defend himself and was not at his hearing.

Over blackcurrent tea at his eclectic apartment in Guelph, Singh says he did nothing wrong. He says that adrenalin-fuelled, 18-hour days combined with the constant conflict and the highs and lows that come with litigation had left him burned out. His work as a litigator was deeply satisfying but also deeply exhausting. He began feeling burned out 10 years ago and knew he had to leave the profession, but it never seemed like a good time. “I was already a sole practitioner then,” he says. “I had clients heavily dependent on me, emotionally tied to what I was doing. I also felt I was doing very good work for them . . . I kept waiting for these big cases to finish so I could move on. I should have been more surgical.”

To preserve his health, he says he finally closed his practice in 2005 after winning a big case. He insists his burnout did not impact his practice, that he performed his work with integrity until the very end, and did his best work in the last two years of his career. “I have never, ever let a single client down.”

He did not defend himself at his discipline hearing, he says, because he had moved on by then and could not cope with another legal battle. He still refuses to discuss the details of the allegations but does say that the client he was ordered to pay still owes him $150,000. “My conscience is absolutely clear,” he says. “Why would anybody steal $2,000, $3,000 from anybody? I know that intelligent people reading the story will say there’s something more to this than meets the eye.”

So what is it then? “I think the [law society] has to answer as to why they have done whatever they have done,” he says. “Nobody in the law society has ever asked me to find out.”

Singh says he did respond to the law society “for years,” gave them boxes of information, and told them he was closing his law office for health reasons. After his suspension, there was evidence that Singh responded to a law society forensic auditor in a March 27, 2006 fax, indicating that he had closed his practice during the fall of 2005, would attend to the matters of complaint, and would immediately resign if there was any misunderstanding about his status. However, Singh was told that, as a suspended lawyer, he could not just resign.

It is clear, however, that he did not responded to numerous and varied attempts by the LSUC to advise him about the complaints, about the severity of the allegations, and the need to respond to avoid a hearing in his absence.

Singh’s side of the story raises as many questions as it answers. Was he simply too burned out to respond to the law society? Did he make mistakes that he still can’t admit to because he was exhausted and couldn’t cope?

Was this a misunderstanding that could have been sorted out? It’s not at all clear.

What does seem clear, however, is that sole practitioners and small-firm lawyers face certain pressures due to the nature of their practices and clients, which some say are the reason they end up in discipline far more often than their counterparts at larger firms.

In 2003, the Law Society of Upper Canada established a task force to identify challenges that Ontario’s sole practitioners and small-firm lawyers face. The resulting report stressed the “target group” lawyers form the backbone of Ontario’s legal profession, accounting for 52 per cent of lawyers in private practice and 94 per cent of the workforce in Ontario’s law firms.

Most people cannot afford to hire big-firm lawyers and the report found individuals overwhelmingly rely on sole practitioners and small-firm lawyers for most legal matters. These lawyers also handle the majority of legal aid cases, and they provide most of the legal services to many ethnic communities.

Overall, the report found that small-firm and sole practitioners are generally optimistic about the financial viability of their practices and their ongoing ability to provide service to the public, but a significant proportion are also worried about their futures, and many cite pressures that exist because of the nature of their practice structures, prospective client base, and practice areas.

They face limited ability to weather rising overhead costs and practice-management difficulties, and spend a significant proportion of their time on administrative work. Sole practitioners who do not share an office with others were the most dissatisfied and isolated. In fact, these lawyers reported the presence of the highest number of factors that can lead to financial instability. In addition, the very nature of their client base leads to financial problems. Most individuals have less money than corporate or institutional clients, and this affects how much they can and are willing to spend, and when they pay, says the report.

Almost three quarters of complaints made to the LSUC involve sole practitioners or small-firm lawyers.
And while the report focuses on one province, “All the problems in Ontario are the same ones lawyers face throughout Canada and even North America,” says Nova Scotia lawyer Patrick Cassidy, the current chairman of the Legal Profession Assistance Conference (LPAC) of the Canadian Bar Association.

Carole Curtis is a small-firm lawyer and has been a bencher for 16 years. She was on the task force and is also the co-chair of the working group formed to deal with the report’s recommendations. She knows what brings lawyers into discipline. For sole practitioners, the problems often start when they feel overwhelmed with too much work, or when they don’t know how to handle a difficult file or client, says Curtis. They feel alone and isolated and they don’t reach out for help when they should, she says. “It’s like a snowball running down a hill. It just gets worse and worse and they start not paying attention to [a difficult] file or to other files in their office and clients start complaining.”

Sometimes, a marriage breakdown causes a lawyer to spiral into an abyss, she says. They may be involved in ugly litigation, which is often humiliating because the details of the legal battle often become public knowledge in towns where so many small practitioners work. Some lawyers turn to alcohol or drugs to cope with stress or other problems, says Curtis. Withdrawing and not responding when people contact them are signs that a lawyer may have a serious problem.

Financial pressure can cause some lawyers to make bad decisions and judgment calls, which can land them in trouble, especially when their depression stems from personal problems, such as a death in the family, says Bencher Judith Potter, co-chair of the LSUC working group. Making a bad decision may be just a blip in their career, she says, but once this behaviour starts, some perpetuate the problem, out of fear of losing their livelihood, by hiding and not seeking help. “That’s a horrific life-change and part of the problem is that lawyers view the law society, their regulator, as something to be afraid of, something to be wary of, so they’re not likely to reach out for help when they should because help is available.”

When lawyers encounter someone who seems to be falling apart, they should offer to help, says Potter. But if lawyers know another lawyer is doing something seriously wrong, they should give the person a choice: either self-report or be reported.

Curtis was a new lawyer when she first encountered a sole practitioner who would not respond to her calls, but says she was too young and inexperienced to realize this was a danger sign. “He was representing the client on the other side of my case. He wouldn’t return my phone calls and he wouldn’t answer my letters, and I didn’t understand that that meant there was something wrong,” she says. Not long after, this lawyer torched his house, was charged with arson, and was ultimately disbarred. “When the story came out, many, many lawyers had complained to the law society about him. And I should have. I should not have assumed that everything was okay. I should have taken the initiative.”

Sole practitioners may be isolated, but Curtis does not believe that no one notices when they are in trouble and need help. Often, in discipline cases involving lawyers with serious substance-abuse problem, their secretaries, other lawyers, judges, and court staff knew about the problem but didn’t do anything, says Curtis. “We need to ask ourselves why,” she says. “What is everybody waiting for? I’m really surprised at how severe it has to be before people take initiative.”

When, because of burnout, stress, or other problems, sole practitioners and small firm lawyers are not doing their jobs well, they are more likely than lawyers in large firms to wind up in trouble, because, in larger firm settings, someone swoops in to help and removes the person from client service, says Curtis. And often, clients’ complaints about lawyers are motivated by the desire to get their money back — something sole practitioners and small-firm lawyers can’t always do.

Resources do exist for those struggling with practice management problems or who need help with family or substance-abuse problems. Most law societies across the country provide practice management support, tools, and information for their members. Then there are confidential, toll-free call-in services available across Canada for lawyers suffering from burnout, stress, depression, addiction, and other problems (see sidebar). Many of them also provide peer support, so in cases where a lawyer may need help with the business side of their practice, they can ask for the assistance of another lawyer well versed in the area, says Cassidy.

John Starzynski, a former sole practitioner and volunteer executive director at the Ontario Lawyers Assistance Program, says those receiving phone calls do not report to the law society unless the lawyer is involved in criminal activity that relates to a client’s interests.  “Ninety-nine per cent of the people that call us get some relief from their problems,” says Starzynski. “And oftentimes, it’s just the fact that they’ve got somebody to talk to, somebody who understands, somebody who is not judging them.”

But some try to cope by turning to drugs or alcohol or other addictions, says Starzynski. “They can end up with full-blown additions where they don’t look after their clients’ interests,” he says. “They miss court dates. They don’t do things that they’ve promised to do. Clients not only complain, but maybe clients sue them. That’s big stuff. . . . They may just collapse and come to the conclusion that they don’t want to practise law anymore.”

In many situations where lawyers end up in discipline, the result could have been avoided, he says. “Sure some of them are in there because they are outright thieves and are in discipline because they deserve to be,” he says. “But maybe some of them are there because they are ill. That doesn’t excuse their behaviour . . . but maybe if they had [received] help at an earlier stage, it wouldn’t have gone that far.”

Cassidy, who has been a peer volunteer in Nova Scotia for 15 years, says lawyers today do find it much easier to ask for help, and the profession has come to recognize that it’s not a stain on your personality to reach out. He notes that younger lawyers are more willing than older lawyers to ask for help, which “is a good sign for the future.” But while it is getting better, asking for help is still a major hurdle for many lawyers to get past. “It’s hard for any professional to seek help,” he says. “We are trained to give help, not seek help.”

The LSUC’s report is spurring changes, at least in Ontario, but they are slow in coming. However, many of these changes probably wouldn’t have helped Singh. He says his burnout was largely the result of being a litigator — a vocation he says is “exciting as hell” but physically taxing. “Always your clients were needy and you have to keep in mind that the role of a litigator is that of a priest, of a friend, of a counselor or a psychiatrist, of an advocate,” he says. “Each one of those roles takes a heavy toll.”

Because he came from a big-firm background, Singh says he never felt isolated and could always reach out to other experts for advice. He also hired junior lawyers and assistants during long trials to ease his load. “Nevertheless, when you are a litigator, you are leading the orchestra and you are the performer as well,” he says. “And there’s no feeling tired, there’s no break. You just carry on until the end.”

Nonetheless, his clients suffered. He was burned out, and a number of small problems seemed to snowball into a much larger problem. And in the end, the law society decided his transgressions were sufficient to disbar him.

  • lawyer

    Tim Leahy
    Given my experience with the Law Society, I would put full blame on it. Its staff, blessed with unrestricted power, believe that the lawyer must disprove every issue, no matter how petty, and rebuff any effort to approach the matter even-handedly or to support the lawyer.

    For example, when I complained to the Chief Justice of the Federal Court about the unethical conduct of Justice Barnes, injuring my litigants, rather than move to rectify the issue, he complained to the Law Society, which, if past be prologue, will act as his cudgel without regard to the Chief Justice's abuse and dereliction of duty. If so, I will adopt the Singh approach.

    So, I can certainly understand why Mr. Singh choose not to deal with a Law Society which attacks, not supports, lawyers on whose avails it lives. A point is reached when shame for continuing to fund a malevolent organization overcomes the sense of obligation to those who require your legal expertise and commitment.

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