The Alternative Discipline Process (ADP) is a pilot program that diverts lawyers who are under investigation from the regular disciplinary process to one focused on the support and management of underlying health issues.
Why ADP
The goal of the ADP is to encourage lawyers with health issues to come forward, get help, and prevent harm to themselves and their clients.
The ADP recognizes that lawyers can be reluctant to acknowledge misconduct or to disclose health issues to the Law Society in the course of an investigation. Often it is not until a matter has been referred to a disciplinary hearing, and the tribunal is considering what penalty is appropriate, that a lawyer discloses evidence of a health issue. This may be months or even years after the original complaint or report has been made, and by that time the Law Society has lost the opportunity to intervene early to get the lawyer back on track.
The ADP provides eligible lawyers with the opportunity to address their health issues earlier in the investigation process, so they can return to serving their clients diligently, and in accordance with their ethical and professional obligations. In this way, ADP aims to protect and promote the public interest by putting lawyers in a stronger, healthier position to meet their professional responsibilities, and ultimately to reduce the likelihood that the misconduct associated with a health issue will escalate or recur.
Eligibility
To be eligible to participate in the ADP, a lawyer must be experiencing a health issue that is impacting their ability to comply with their professional obligations. The executive director must also be satisfied, based on all the relevant circumstances, that a referral to ADP is consistent with the public interest. As part of this assessment, the executive director will consider all the circumstances of the case, including:
- The nature and seriousness of the alleged misconduct;
- The impact on the Law Society’s ability to protect the public; and
- The impact on the public’s confidence in the profession and in self-regulation.
If, at any point during the lawyer’s participation in ADP, the lawyer’s participation ceases to be in the public interest, the file will be returned to the regular disciplinary process.
Guiding principles
The ADP is guided by the following principles:
- Public interest paramount: Public interest considerations will inform all aspects of the ADP. Referrals to the ADP must be approved by the executive director, who must be satisfied that the referral is in the public interest. Lawyers will only be eligible so long as their participation is, and remains, in the public interest.
- Confidentiality: ADP records will be kept confidential and separate from other Law Society programs and processes, including from the regular disciplinary process. For clarity, health information disclosed as part of the ADP is kept strictly confidential, and is not shared outside of the ADP, except with the explicit consent of the participating Lawyer or where disclosure is required by law.
- No risk: If a lawyer ceases to be eligible to continue in the ADP, the matter will be returned to the investigation stage of the regular disciplinary process and both the lawyer and the Law Society will be in the same position as they would have been had the ADP never been attempted.
- Voluntary: Participation in the ADP is voluntary, and eligible and participating lawyers will be provided with sufficient information at every stage of the ADP to make informed decisions about their participation.
Complainant involvement
Complainants will be informed if their complaint is referred to the ADP. They will also have an opportunity to provide a statement regarding any impact that the lawyer’s alleged misconduct has had on them. This statement may factor into the terms of any ADP agreement between the lawyer and the Law Society, including any terms related to remediation.
Complainants will also be given notice of the outcome of the ADP – including whether a referral to the ADP was approved, if the lawyer successfully completed the ADP or whether the matter was referred back to the regular discipline process.
To protect the confidentiality of the lawyer’s health information, complainants will not be provided with information obtained in the course of the ADP or the details of the terms of the consent agreement the lawyer enters into to be referred to the ADP, unless the lawyer consents to such disclosure.
ADP stages
There are six stages in a typical ADP file:
- Concern raised or report received: If, through the complaint investigation process, a concern has been raised, or a report has been received indicating that a lawyer’s health issue may have contributed to alleged misconduct, the concern or report may be considered for referral to the ADP. Lawyers under investigation will be provided with information about the ADP so that they can consider whether the process may be appropriate for them.
- Referral to the ADP for an eligibility assessment: To be eligible for the ADP, the lawyer must acknowledge that a health issue may have contributed to the alleged misconduct and must sign a consent form that sets out the conditions of participating in the process. The Executive Director must also be satisfied that a referral to the ADP is in the public interest. Guidelines have been developed to support the Executive Director in making this assessment. Before eligibility is confirmed, the lawyer may be asked to provide health information to assist the Executive Director in determining whether the referral to ADP is in the public interest and if the lawyer would benefit from the ADP’s remedial approach. Personal information obtained in this process — and in all aspects of the ADP — is confidential and will not be shared outside of the ADP without the lawyer’s consent or unless disclosure is required by law.
- ADP consent agreement negotiated: If health information establishes that there is a nexus between a health issue and the alleged misconduct, ADP counsel will work with the lawyer to negotiate the terms of an ADP consent agreement. The lawyer and ADP counsel may also negotiate an interim ADP consent agreement if it is considered necessary to protect the public. Additional health information may be required to ensure that the ADP consent agreement is tailored to the lawyer’s specific health issue(s) and any related practice concerns.
- ADP consent agreement approved: Once the ADP consent agreement has been negotiated, it is considered for approval by the Executive Director. The Executive Director must be satisfied that the agreement includes the appropriate provisions and that it is in the public interest, based on the criteria and factors set out in Division 1.01, Rule 3-9.4 [Consent agreement].
- Fulfilling the terms of the ADP consent agreement: If the terms of the ADP consent agreement are fulfilled, the complaint or report that initiated the referral to the ADP will be considered resolved. Participation in the ADP, whether successful or unsuccessful, will not form part of the lawyer’s professional conduct record. In circumstances in which the lawyer is unable to satisfy the terms of their consent agreement or they revoke their consent to participate in the ADP, or if the Executive Director determines that it is no longer in the public interest for the lawyer to continue to participate in the ADP, the matter may be returned to the regular disciplinary process.
If there is a dispute as to whether the lawyer has breached or fulfilled the terms of a consent agreement, the lawyer will have an opportunity to appeal the decision to a motions adjudicator at the Law Society’s Tribunal. An appeal must be filed within 30 days of receiving notice of the intention to refer the matter back to the regular process.