#LawNeedsWellnessBecause

Recently the #LawNeedsWellnessBecause hashtag was trending on Twitter. Lawyers weighed in on why mental health should be a priority. Amongst the #LawNeedsWellnessBecause tweets, the structure of how lawyers practice was pointed to as a contributor to stress, anxiety, and burnout.

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Despite the structural factors influencing mental health, there is almost an exclusive focus on fixing the individual. In the article “How mindfulness privatised a social problem: The £3.4trn industry encourages a preoccupation with the symptoms of mental illness, rather than their social causes,” Hettie O’Brien in the New Statesman discusses this issue.

O’Brien quotes Purser who argues that mindfulness has become the perfect coping mechanism for neoliberal capitalism. “It privatises stress and encourages people to locate the root of mental ailments in their own work ethic. As a psychological strategy it promotes a particular form of revolution, one that takes place within the heads of individuals fixated on self-transformation, rather than as a struggle to overcome collective suffering.” There is a pre-occupation with the symptoms of stress, rather than overcoming the social causes of stress.

I am not suggesting that mindfulness, medication, exercise, eating well and sleeping well are not important. But when it comes to practicing law, we must also look at the structural factors that create burnout.

There are small ways that we can begin to make changes. For example, Borden Ladner Gervais recently started having an onsite counsellor to help their employees and to help change the conversation around mental health.

At the end of the day, #LawNeedsWellnessBecause “If I am not for myself, who will be for me? If I am not for others, what am I? And if not now, when?” (Famous quote from Rabbi Hillel)

(Views are my own and do not represent the views of any organization. This post was originally posted on slaw.ca)

In Praise of the Honourable Justice Clement Gascon

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Recently, the Honourable Justice Clement Gascon of the Supreme Court of Canada addressed his momentary absence from work on May 8th, 2019.

For over twenty years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders. This is an illness that can be treated and controlled, some days better than others. On the afternoon of Wednesday, May 8, affected both by the recent announcement of a difficult and heart-rending career decision and by a change in medication, I conducted myself in an unprecedented and unaccustomed manner by going out without warning and remaining out of touch for several hours. I can neither explain nor justify what I understand to have been a panic attack, and I wish to apologize most profusely to all those who suffered as a result. This health issue has been taken care of and treated with the necessary medical support. I confirm that I am in good health, and am fully capable of performing my duties as a judge.

Justice Gascon’s remarks are laudable. By being open about his personal health, Justice Gascon has reduced the stigma in our profession around discussing depression and anxiety. Two illnesses which affect many lawyers.

In the CBC article, titled “Successful lawyers more likely to experience mental health problems, Toronto study finds”, the writers note that a University of Toronto study compared two national surveys of thousands of lawyers in both Canada and the United States. “In both countries, researchers found a strong correlation between signs of depression and traditional markers of career success. Lawyers holding down jobs at large firms in the private sector, widely considered to be the most prestigious roles, were most likely to experience depressive symptoms.” The larger the firm, the more lucrative the position, the higher the odds that the lawyer suffered from depressive symptoms. This was partly attributed to the skewed work-life balance at larger firms.

Similarly in the New York Times article, The Lawyer, The Addict, Eilene Zimmerman, discusses the plight of lawyers. Her ex-husband’s death from a drug overdose happened, despite (maybe because of) his success as an intellectual property lawyer in Silicon Valley.

Zimmerman indicates that the heavy stress on him and the pressure to compete, meet client demands, gain clients, all contributed to his drug abuse. “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”

Peter’s struggle is not unique. Zimmerman highlights a 2016 report from the Hazelden Betty Ford Foundation and the American Bar Association on substance abuse amongst lawyers. “Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety.”

Professional stress contributes to the rates of substance abuse amongst lawyers. The adversarial process of the opposing side constantly trying to “undo your work” only adds to the stress.

Despite the prevalence of anxiety and depression amongst lawyers, there is a culture of silence. Professor Daniel Angres states in the New York Times article that “Law firms have a culture of keeping things underground, a conspiracy of silence,” he said. “There is a desire not to embarrass people, and as long as they are performing, it’s easier to just avoid it.”

What’s even more troubling is that that the deterioration of lawyers’ health often begins in law school. Zimmerman points out that law students tend to shift their focus in law school. They shift their focus from the value of helping people to extrinsic factors. These extrinsic factors include: grades, honours and potential career income. However, the value of grades, honours, and income have little influence on a lawyer’s overall mental health. In response, law schools are starting to address improving the mental health of their students.

Similarly, as a profession, we are just beginning to break down the “conspiracy of silence” around mental health. I admire Justice Gascon in contributing to the dismantling of this deadly silence.

(Views are my own own and do not reflect the views of any organization. This article was originally posted on slaw.ca.)

Celebrating the Everyday Lawyer

 

Benchmark Litigation recently posted this list of the top trial lawyers in Canada.

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Twitter was abuzz. Many people questioned the selection of the lawyers. Not over competence. The lawyers selected are all outstanding trial lawyers. But whether a list composed of almost all white men was truly representative and unbiased. IMG_7671IMG_7672.jpgIMG_7673.jpg

In the journal article, “Why Women: Judging Transnational Courts and Tribunals” by Kathryn Stanchi and Bridget J. Crawford, diversity on the Bench is discussed.  In the article, Stanchi and Crawford comment on the selection criteria of judges. They comment that the selection process is tainted by elitism and bias. Their comments about the selection of judges can be applied to the selection of lawyers for awards. In the article, the authors write that:

Federal judges, for example, tend to be chosen from prestigious clerkships and big corporate law firms, two professional enclaves that tend to favor white, wealthy and male candidates. The more than 1300 sitting federal judges overwhelmingly attended Harvard (140 judges) and other elite law schools. These elite law schools – including Yale, Columbia, Stanford, Berkeley, NYU – tend to skew white and wealthy… Every step leading up to that first appointment to the bench – from academic indicators to standardized testing and beyond – embeds race, class and gender bias…

While calling for more “women” in the judiciary may yield a short-term gain, the real work lies in broadening the definition of who is “qualified” to be a judge. That requires open acknowledgment of the biases inherent in the admissions processes that lead to judicial positions: elite law schools, clerkships, prestigious law firms and other gate-keepers. Otherwise, the effort will yield only female judges who “are able to construct a biography that somewhat approximates the male biography…

Why did we think that women would transform institutions without simultaneously — or alternatively — being transformed by them? Why did we believe that women appointed to positions of power would be ‘representative’ of women as a group, rather than being those who most resemble the traditional incumbents and are thus considered least likely to disturb the status quo?” Catharine MacKinnon has long observed that the women who benefit from feminism’s emphasis on formal equality are “mostly women who have been able to construct a biography that somewhat approximates the male norm . . .. They are the qualified, the least of sex discrimination’s victims.”

Stanchi and Crawford recommend that to improve diversity on the bench we should consider people who have faced “discrimination based on race, class, disability, immigration status, gender identity, sexuality or other personal identities beyond biological sex.” 

Similar to the appointment process for judges, we should consider lawyers from various backgrounds in handing out awards. We should celebrate lawyers that perform everyday legal work, and not just award lawyers working on large cases. Helping individuals with everyday matters is just as important and deserving of applause. And should be encouraged. However, the lawyers that tend to work on the sexy projects that get the most attention and award buzz are often the ones that have benefited from a process tainted by bias and elitism. 

(Views are my own and do not represent the views of any organization.)

 

 

Highlighting Bencher Candidates for the 2019 Election

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I would like to highlight 3 Bencher Candidates, who I think would make excellent Benchers: Isfahan Merali, Addison Cameron-Huff, and Rebecca Durcan.

The Law Society of Ontario is governed by a board of directors, known as Benchers. Benchers set policy related to the governance of Ontario’s lawyers and paralegals. Benchers also hear discipline cases regarding the conduct, licensing, competency, and capacity of lawyers and paralegals.

 

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The first candidate is Isfahan Merali. Isfahan Merali has an impressive track record. She is an incumbent Bencher and senior counsel at the Consent and Capacity Board. As a Bencher, Isfahan has been the Chair of the Tribunal Committee, Vice-Chair of the Equity and Indigenous Affairs, member of the Priority & Planning Committee, and member of the Challenges Facing Racialized Licensees Working Group, among other roles. She is also a member of the Mental Health Strategy Task Force and an adjudicator with the Law Society Tribunal.

Isfahan brings a deep understanding of mental health and how it affects the practice of lawyers. Helping lawyers’ mental health improves the quality of legal services provided to the public.  Iahan brings a deep understanding of mental health and how it affects the practice of lawyers. Helping lawyers’ mental health improves the quality of limg899_Huff

Addison Cameron-Huff is a blockchain lawyer. He understands technology better than most lawyers. He has worked as a software developer and has launched several online legal businesses, including a global law search. It is important that Benchers understand technology to improve access to justice.

Addison was interviewed about his platform. Below is an excerpt of his interview.

What inspired you to run for bencher this year?

Software is changing every industry. Lawyers need to understand technological issues and the legal regulator ought to have that understanding too. I can provide this input because of my many years as a programmer and a lawyer working for the technology industry (more specifically, blockchain businesses). As a bencher I will ensure that legal professionals don’t miss out on the benefits of technology.

What do you believe is the biggest issue facing the legal profession?

The number of people in Ontario who aren’t being assisted by legal professionals is the biggest issuing facing our profession. Unserved/underserved people are a multi-billion dollar opportunity for licensees and a travesty for the affected people. We can do better as a profession and as a society.

 

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Rebecca Durcan is a lawyer who focuses solely on professional regulation. She is “attuned to national and international regulatory trends.” As a lawyer who practices in professional regulation, she has acted as an adjudicator, prosecutor, and independent legal advisor for tribunals. If elected as Bencher, Rebecca plans to improve access to justice, continue with governance review, increase diversity of the profession, and increase transparency.

Rebecca notes in her platform that the “the Law Society can invest in technological innovation so the legal system becomes more accessible and less expensive for Ontarians. This may result in less actual interface with lawyers. However, the role of the Law Society is to determine what is best for the public interest as opposed to the interest of the profession.”

I believe that embracing technological solutions, considering alternative business structures, and investing in mental health are critical to fulfilling the Law Society of Ontario’s mandate and improving access to justice. I hope that the Benchers elected in 2019 embrace these goals.

 

(Views are my own and do not reflect the views of any organization.)

Buying Your Way into College: The Advantage of the Wealthy that Persists Past College

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It’s been alleged that dozens of parents have bought their children’s way into some of America’s most prestigious colleges. As a result of these allegations, many people have been forced to confront the myth of equal opportunity in America.

The image that once you are 18, you are making your own way through the world and that class doesn’t matter is a myth. However, exposing the illegal practices of gaining admission will not solve the problem of inequality.

The arrests this week won’t address the deeper issues of income inequality that exclude primarily black and latino students. As writer Matt Kwong for the CBC pointed out in his article “What bribery in U.S. college admissions says about the ‘myth’ of meritocracy”, wealthy parents will still be able to give their children an unfair advantage. They will still “send their children to SAT tutoring, place them into learning academies, or fly them to another state for on-campus tours to boost their admission chances by showing ‘demonstrated interest’ in the college.”

Even more troubling is that once students graduate college, the set of advantages or disadvantages from growing up wealthy or from a working class background continues throughout people’s lives.

In the article by Joe Pinsker “The ‘Hidden Mechanisms’ That Help Those Born Rich to Excel in Elite Jobs, Pinsker writes about research that shows how the customs of elite workplaces can favor those who grew up wealthier. The research was conducted by Daniel Laurison and Sam Friedman and can be read in their new book, The Class Ceiling: Why It Pays to Be Privileged.

Laurison and Friedman’s research shows that a series of “hidden mechanisms”, such as unwritten codes of office behavior and informal systems of professional advancement, benefit individuals that grew up wealthy. These same systems simultaneously disadvantage those with working-class backgrounds. For example, young adults from wealthier families may have their housing subsidized at the beginning of their career. Thereby allowing them to take lower paying jobs that can lead to greater professional advancement. Or the set of advantages may help people know the “unwritten” rules of appropriate office wear or talk. Making it easier for children of the wealthy to be “sponsored” by leaders in their office.

The effect of the series of hidden mechanisms can be seen in the New York Times article “Elite Law Firm’s All-White Partner Class Stirs Debate on Diversity. In the article, the announcement of the law firm Paul, Weiss of its new partner class was dissected. The new class of partners was made of 12 lawyers. All lawyers were white. Almost all of them were white men. “More than 20 women and people of color interviewed for [the New York Times] article described obstacles to achieving diversity at Paul, Weiss. Many said that opportunities to be groomed for partner are harder to come by for women and minorities. … they failed to break into the good graces and social circles of the firm’s top lawyers, who must champion those hoping to earn a lucrative spot as a partner.”

The researcher Laurison points out that one way to even the playing field is to “change workplace cultures to be closer to what … working-class people—and women, racial and ethnic minorities, and other historically excluded groups—bring rather than just trying to teach those ‘others’ how to adapt.”

Although inequality in opportunity will likely never be eradicated, we can begin to break down barriers by recognizing our own unconscious biases and working towards overcoming them.

(Views are my own and do not reflect the views of any organization.)

Investigating Consent: Lessons From the Documentary Surviving R. Kelly

In the documentary “Surviving R. Kelly”, R. Kelly’s alleged patterns of manipulation and abuse are exposed. R. Kelly begins most of his abusive relationships by promising young girls mentorship and access to music deals. This “mentorship” quickly turns sexual. He then increasingly violates young women’s boundaries. The ones that don’t turn away, he deems fit to move in with him.

Once they are in his home, they become prisoners. Often isolated and locked in rooms without access to a toilet or food for days. When the women are allowed out, they must obey him or be beaten.

Survivors described their experience akin to being in a sex cult. They described R. Kelly as the leader of the cult. These young women lost contact with their friends and family. When family members requested “wellness checks” from the police, the police usually found nothing suspicious. As they tell the police that they are fine and are choosing to be with R. Kelly.

At the end of the documentary, a mother and father are seen begging the police, as part of a “wellness check”, to take the door down of R. Kelly’s music studio.  They believed that their daughter was trapped inside R. Kelly’s Chicago music studio. The white police officers are seen telling the parents that they could not legally enter the studio without a warrant or someone letting them in. As no one was opening the door and they did not have a warrant, the police did not check on the young woman.

Interviewees suggested that R. Kelly’s ability to evade law enforcement for so long was partly due to the background of his victims: young, black women. And that American society valued young, black women’s lives less than white women’s lives.

Part of the failure of “wellness checks” by police in detecting abuse is due to the understanding of consent. Jurisprudence has consistently interpreted consent as requiring a conscious, operating mind that is capable of granting, revoking or withholding consent to each act (R v. J.A., 2011 SCC 28 at para 44).

However, what makes a mind capable of granting consent?

In the documentary “Surviving R. Kelly”, a psychologist explains how the women’s capacity to consent was impaired by sophisticated psychological manipulation. R. Kelly’s psychological manipulation made the women’s assertions of being “okay” during wellness checks meaningless. By grooming the women, systematically  breaking down the women’s self-esteem, isolating the women from their family and friends, inducing dependency on him, and making access to food, water, social interaction dependent on their “good” behaviour to him, he compromised their capacity to consent.

By better training police officers in identifying issues regarding the capacity to consent within abusive relationships, law enforcement can have a better chance in rescuing individuals that claim to be “okay”.

(Views are my own and do not reflect the views of any organization. This was originally posted on slaw.ca)

Reversing Roe: A Must See Documentary

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Netflix recently released the documentary Reversing Roe. Reversing Roe explores the history of abortion law in the United States and the tenuous state of legal abortions.

The documentary shows that being “pro-life” was not always a must for Republican candidates. For example, prior to Regan’s presidency, he passed one of the most progressive laws on abortion. However, upon campaigning for his presidency, Regan changed his tune to speak to the Evangelical base.

After Roe v Wade, abortion became a highly politicized topic for Evangelical Christians. This in turn made abortion a critical issue for Republican candidates, as securing the Evangelical base could be the difference between winning or losing an election. As Republican legislators became committed to “pro-life” tenets, more restrictive laws on abortion were enacted.

As restrictive abortion laws were struck down, the pro-life movement began supporting the appointment of “pro-life” judges. Hoping that with enough “pro-life” judges, restrictive laws would be affirmed. A “pro-life” lobbyist stated in the documentary that they were trying to ban abortion altogether through the cumulative impact of small changes to the law.  Essentially taking the approach of a thousand paper cuts.

The documentary points to a grim future for the legality of abortions. It is pointed out that many years before Trump’s presidency, he can be seen saying on television that he is “pro-choice”. However, during his campaign for the presidency he promise to appoint a “pro-life” judge to the Supreme Court. Making the appointment of the next Supreme Court judge critical to the legality of abortion in the United States.

(Views are my own and do not represent the views of any organization.)