A Law Society of Ontario tribunal has decided to move forward with the termination of a lawyer’s licence, in a decision that included a lengthy analysis of the lawyer’s mental health issues.
The law society did, however, decide to allow the lawyer to surrender his licence, rather than having it revoked. The July 6 decision, Law Society of Ontario v. Yantha, 2018 ONLSTH 94, comes as the law society is reviewing its regulatory process to “ensure appropriate considerations for mental health,” according to its 2015 to 2019 strategic plan.
Darryl Singer, head of the commercial and civil litigation practice group at Diamond & Diamond Lawyers, represented Darwin Anthony Yantha of Barry's Bay, Ont., and he says he was torn about the decision. He says that although he was disappointed that his client will have his licence terminated, he was “very, very” happy with the tribunal’s consideration of its duty to accommodate alcoholism and depression under the Ontario Human Rights Code.
“The panel went to great lengths in its decision to deal with my main argument,” Singer says. “I spent a great deal of time, over the course of two days, focused on the Human Rights Code argument. The panel was very patient in allowing me to say everything I wanted them to hear. In the end, I felt that the way they addressed the Human Rights Code argument was very fair. It’s clear they heard everything I said and understood the argument.”
The law society accused Yantha of over-billing Legal Aid Ontario by $29,540.61, as well as appearing and acting for clients without disclosure or approval and failing to maintain detailed records.
The law society initially requested revocation of Yantha’s licence, while Yantha pushed for a long suspension followed by supervision and restrictions on his licence. The law society tribunal ultimately said it would grant permission for Yantha to surrender his licence on July 31 at the latest, due to the “exceptional circumstances” surrounding Yantha’s testimony about depression and alcohol addiction.
“That’s a concession. It doesn’t necessarily feel that way to Mr. Yantha. But it’s actually a significant concession to allow him to surrender rather than revoke,” Singer says.
In the case, the law society’s investigation concluded that 10 of Yantha’s accounts represented an overbilling of $29,540.61.
Yantha told the law tribunal that he had used alcohol to self-medicate after becoming depressed beginning in the early 2000s. Yantha also said he “felt that seeking help would diminish potential clients’ confidence in him,” according to the law tribunal’s decision. The decision said a psychiatrist also submitted a report that diagnosed Yantha with “disabling” major depressive disorder but noted that Yantha is hesitant to seek treatment in his small community of about 3,000 people.
The overbillings were unintentional and stemmed from a “fog of everything going on in [his] life,” Yantha told a law society tribunal panel. The law society tribunal said it “heard no evidence of any practitioner who would be willing to monitor the restrictions and supervise” Yantha.
The law society tribunal said in the decision that it recognizes the duty under the Ontario Human Rights Code to accommodate disability to the point of undue hardship. But the circumstances of the case would not “make it obvious” to the public and to other lawyers that they no longer need to be concerned about Yantha’s “honesty and integrity,” the law society tribunal said in the decision.
The law society declined to comment further, saying the decision speaks for itself.
“[We] accept that the Licensee’s depression and alcoholism made him reckless. We accept that his depression and alcoholism are causally connected to the misconduct we found,” the law society wrote.
“In our view, accommodation in this case, such as a long suspension with oversight and rehabilitation, would cause undue hardship to the public interest, to the Law Society’s reputation as a legal regulator, and to the reputation of the professions the Law Society regulates. We have already found that the Licensee might well misconduct himself in the same way again, since we saw no evidence of his full acceptance of the seriousness of his condition and the recommended treatment.”
One broad takeaway, Singer says, is that lawyers need to not just raise issues of alcoholism and depression at the tribunal but, from the minute they recognize a problem, they need to start rehabilitating themselves.
Mental health issues have been a focus for some time within the law society, which said in its 2015 to 2019 strategic plan that it would “consider opportunities for additional mental health supports and resources.” The LSO's Mental Health Strategy Task Force put together a long-term strategy for the professional regulator, which was adopted.
The role of mental health in the disciplinary process has also continued to be a focus in tribunal hearings, especially after the decision Law Society of Ontario v. Burtt, 2018 ONLSTH 63, released in May.
In that case, the tribunal said that the law society should have done more to accommodate the respondent, Jeffrey Gordon Alexander Burtt, who had previously explained his medical conditions and depression to the tribunal.
The Burtt decision and Yantha decision, read in conjunction, clarify the law society’s duty to accommodate depression and alcoholism, Singer says.
“It’s a good decision in many ways because it takes away any doubt as to whether or not there’s a duty to accommodate,” Singer says. “They said, ‘We do believe we should depart from the norm, which would be revocation of his licence.’”
Robert Schipper, who acts as duty counsel for the law society tribunal issues through The Advocates’ Society, says it is not uncommon for lawyers with these types of disabilities to experience fear and panic when facing inquiries from the law society. Schipper says he expects that there will continue to be more cases involving mental health issues.
Schipper also says that the degree of seriousness of the offence also comes into play, and both the law society and the licensees have some duty to address mental health issues.
“The law society has a duty and will continue to have a duty in that regard,” Schipper says. “They even have a program that can provide assistance to lawyers with various types of disabilities . . . as part of their responsibility to the profession and to the public, too, which they see as their mandate.”