Concerned About Confidentiality

  • February 09, 2023

Dear Advy,

Are the mental health programs offered to lawyers truly confidential? I practice in a province that seems to offer a number of different support options, but they are run by my law society. I’m worried that reaching out to one of these assistance programs and identifying that I am working through some mental health issues will affect my career.

Concerned About Confidentiality

Dear Concerned,

Please excuse me while I respond with the least original answer every given by a lawyer: It depends.

In most jurisdictions, your call or e-mail goes directly to an outside counselling agency even where the program is administered by the regulator. Put another way, for the most part the person picking up your call is not an employee of the regulator. They are either an employee of a contracted benefits company or an employee of an arms-length non-profit agency. 

In most of Canada, before any organization or business can collect your personal information, they have tell you how your information will be used, and in what situations disclosed, and must obtain your consent before collecting your information. If you have a concern about a particular mental health program, regardless of any connection to your province’s law society, your best bet is to go to the source, and confirm with the program’s administrator that your information will be kept confidential.

In many provinces, law societies do fund a local lawyers’ assistance program (LAP) or provide other mental wellness resources. Although many receive their funding from law societies, LAPs are separate entities or are administered by a third party and keep their participant information strictly confidential. A list of confidential wellness programs by jurisdiction can be found on the CBA website.

Of course, as with any rule, there are exceptions. Information you relay to a wellness program, or to any counselor or therapist, is subject to disclosure as required by law. For example, information divulged to a therapist or counselor may be disclosed as necessary to avoid a credible threat of harm to you or to a third party. There are also mandatory reporting requirements where disclosure is necessary for the protection of a child. Similarly, although confidential, information you disclose to a counselor or therapist, regardless of their independence or affiliations, is not subject to an absolute class privilege, and may be subject to admission as evidence in a court proceeding, depending on the court’s application of the rules of evidence.

There is also a distinction between the independent wellness programs referenced above, which were created for the sole purpose of providing a lawyer with resources and support, and law society diversion programs that provide a remedial avenue for the management of law society complaints, like those in British Columbia and Manitoba. Whether and to what extent your information remains confidential as part of a law society diversion program will depend on the rules and policies governing that specific program. If you are considering participating in a diversion program, make sure you speak with the law society employee responsible for program administration, to make sure you understand how your information might be shared within the law society and beyond.

So really, knowledge is power. Lawyer-focused mental health programs are designed with remediation and rehabilitation in mind. Although they may be funded by a law society, they are operated independently, to ensure that your information can be kept confidential, to the extent possible under the law. Once you understand how the program in your jurisdiction works, you will be able to make an informed decision about whether you want to participate and take advantage of the assistance your local program has to offer.

Be well,

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