Disability Insurance and Traps for Lawyers

Tim

0:00 (music) Welcome to CL Talk, the leading podcast for the legal profession across Canada. Brought to you by Canadian Lawyer Magazine. I'm Tim Wilbur, managing editor of Canadian Lawyer magazine.

0:26 Today, I'm joined by Jason Ward, a former civil litigator who built a successful practice in Lindsay, Ontario, but ultimately left the profession after struggling with alcoholism and a dependency on THC. Jason has since been open about his experiences, and his story has resonated with lawyers across the country. We profiled Jason's journey in 2023 on the Law Times website.

0:52 Now, through his platform, Mentally Speaking, he continues to speak across North America about mental health, stigma in the profession, and the realities of disability coverage when lawyers can't work because of mental health issues. Jason, welcome to the podcast.

Jason

Hi, Tim. Thanks for having me, and thanks to Key Media for everything it continues to do to destigmatize and raise awareness.

Tim

1:18 Well, thank you. And first off, let's talk a bit about, I know as I said, we covered this before, but talk a bit about your experiences as a lawyer and what drew you to, you know, stop practicing and move into this area.

Jason

I'm coming in hot, Tim, on nearly five years of no coping substances in my life. And since I abruptly left the firm that I built and own, one of the largest in my region, and left this noble profession.

1:44 On reflection, when I look in the rear-view mirror, I've repositioned how I think about my departure. For example, when I left, I now view it as an act of survival, not surrender. Stepping away really preserved my life and my integrity. It was necessary in my life. It really stopped a trajectory for me that was unsustainable and dangerous in my case.

2:10 I view it now as the start of real work in my life, in the sense that my treatment and my recovery have addressed what my skills and competence as a lawyer could not. And I've reframed how I look at success. So for me, health, honesty and stability have replaced status and billables.

Tim

Great. Well, since launching Mentally Speaking and speaking across North America,

2:36 what have you learned about how common your experience is among lawyers compared to what you initially thought, maybe when you first spoke about it publicly?

Jason

I think the patterns for mental health in our profession are universal. I've learned that regardless of jurisdiction, lawyers always, virtually always, describe the same drivers, namely, overwork, fear of failure and isolation.

3:02 I've learned that most lawyers wait too long. Help is often sought only after professional, health and family crisis. Stigma is really internalized in our profession, more than enforced, and fear of judgment usually outweighs the actual regulatory or professional consequences. Many lawyers feel that way. I've learned that addiction often starts as performance management.

3:28 Substances are first used to work longer, sleep less or cope better for many lawyers. I've also learned, based on how extensively I've spoken about mental health, that hearing a fellow lawyer's recovery story does in fact change behaviour. Lived experience does reduce fear and moves lawyers from awareness to action.

Tim

3:54 Right, so since we spoke with you, there have been several other lawyers speaking publicly about their experiences. I know there was a book I'm sure you're aware of where many lawyers, including judges and lawyers at large firms, spoke about their personal experiences. I spoke with a lawyer last year from Gowling who recounted his experience with depression. So there's been a lot more public discussion about this. And last year, I don't know if you agree, seemed a bit of a watershed

4:20 in that regard. So do you feel like there's a shift happening in the legal profession? And if so, what? And if not, what still needs to change?

Jason

I agree with you. Certainly there's more public acknowledgement of mental health in our profession. You know, judges and high-profile lawyers are speaking openly about mental health and addiction, breaking longstanding silence. There's greater resource visibility; law societies and associations

4:46 are now more proactively sharing mental health supports and well-being tools. There's more training and CPD uptake. There's more awareness and skills-based sessions on stress, burnout, and substance abuse, and they're increasingly becoming part of our continuing legal education. While conversations are more common, I'm still of the view that

5:12 many lawyers still face or fear career impact from disclosure about mental health issues. But certainly peer networks are also expanding, informal support groups. And wellness communities are growing across Ontario and nationally. And I think to your point, Tim, there's been an overall shift from near total silence to a cautious openness

5:38 amongst lawyers: progress in culture and language, but real comfort with disclosure and systemic change, I think, is still evolving.

Tim

Great, and I imagine you probably hear a lot of stories that aren't public about lawyers struggling with these issues. So on an individual level, what patterns do you see, and what pushes someone from talking about how they're managing but having difficulty, to being in crisis

6:04 and not being able to even function?

Jason

Yeah, I guess drawing from my own experience and many lawyers who I've spoken to with similar or common issues. One of the warning signs or early patterns, I think probably threefold, Tim. One is what I call behavioural drift. And basically that means, you know, the lawyer starts working longer hours, missed deadlines, increased irritability, both at home and in the

6:30 workplace, maybe some social withdrawal. I think there's also, for lawyers that may be experiencing mental health issues, some level of cognitive narrowing, you know, perfectionism spikes, reduced judgment, more black-and-white thinking, more organization to the point of being somewhat anal. And I think there's also a coping substitution. So you might see increased alcohol or drug use,

6:56 reliance on stimulants or sedatives, sleep disruption. Those are typically what I've experienced and seen or observed as early warning signs for most lawyers.

Tim

And what advice do you give to lawyers on an individual level? We'll talk more systemically too, but if those signs are emerging in their life, what would you advise them to do? What are the first steps and then ultimately the subsequent things they should do to prevent

7:22 a full crisis from emerging?

Jason

I think generally I would say to lawyers, in fact I do say this to lawyers, that you don't lose your identity by pausing your practice. You protect it. Untreated illness takes far more time away than the alternative. I think silence is the real career risk for many lawyers. Early help often preserves competence, judgment and long-term

7:48 confidence, judgment and long-term credibility. Confidential help is out there. It's real, and underused by many lawyers. You can start with an anonymous or arm's-length support to lower your fear or barrier to entering into this area of mental health unwellness. You don't need certainty to start. You only need enough discomfort to really justify an honest conversation

8:14 with yourself. If you're doing that, it's likely time to consider a change. Recovery is no weakness. It's skill building. And I've learned that from my own experience. Treatment teaches regulation, insight, and resilience that I never learned in the profession.

Tim

And let's talk about systemic factors. This isn't just an individual issue,

8:40 and individuals shouldn't be ... when these things turn into a crisis. So with the profession specifically, I know there's billable hours and client expectations and other things. So what do you think the profession specifically has within it that is a problem, and what are some of the solutions?

Jason

Yes, I agree. Billable hour pressure is still a major factor. Also, inherent adversarial

9:06 incentives for lawyers, constant time tracking, economic insecurity, and a real win-lose culture, I call it a culture of conflict, may normalize overwork, perfectionism, high and chronic stress. That's systemic. There's, I think, a structural stigma and a professional identity risk surrounding mental health, and that is that fear that disclosure of a

9:32 mental health issue will harm licensing or reputation or advancement. And all these things lead to silence for lawyers, often delayed care. And usually it escalates to crisis-level intervention when these things are ignored. And I think for many lawyers, especially those who work in a firm, there's a loss of autonomy that's combined with a moral strain.

9:58 So for many lawyers, limited control over workload and timelines, client demands and exposure to conflict or ethically uncomfortable positions, they produce burnout and moral struggle. These are all inherently systemic in our system.

Tim

And there's lots of proposed solutions out there. There's a law firm

10:24 level, where law firms can support their lawyers better. That obviously varies depending on the size of a law firm. But then there's law societies. What do you think needs to be done on both of those levels to help prevent crisis, so that the burden's not just put on the individual lawyers?

Jason

Well, firstly, there are real supports in place for mental health in our profession across Canada,

10:50 including our own Law Society of Ontario. They fund confidential member assistance programs that provide counselling, addiction support, coaching and peer resources for lawyers and students and even their family. And right now in Ontario, those are provided by a third-party contractor, namely Homewood, which is an operation out of Guelph. So there are real supports out there and available.

11:16 I think that the approach by regulators and law societies is largely individual still, rather than systemic. I think regulators emphasize education, awareness and voluntary use of supports, while the core drivers of distress, like billable pressure, workload intensity, [win-lose] culture, economic insecurity, they remain

11:42 largely untouched. I think probably the stigma itself of mental health is reduced in the increased messaging in our profession, but not really in practice. So despite assurances of confidentiality by regulators, I think many lawyers still fear that disclosure could affect their licensing, their reputation or career advancement. And I think that's what causes

12:08 delay in seeking help, often until the problems become acute.

Tim

And you know, often there are fears that lawyers have that don't materialize; like the stigma, maybe it feels bigger than it is, causes lawyers to feel like there's more risk than there are. But there are real risks when lawyers speak publicly about this. So you mentioned law societies. Do you think there's a better way law societies can deal with

12:34 lawyers who are going through crisis like this? As you know, I spoke with a lawyer recently who had quite a difficult experience with the Law Society of Ontario. They did point out they have several supports. What's your view on what can be done, or maybe how law societies can deal better with supporting lawyers?

Jason

Yeah, I've come to the conclusion that when it comes to mental health wellness amongst our profession, regulators play a limited but can be an important role.

13:00 Law societies are improving access to care, normalizing conversations, but real meaningful cultural change in our profession, I think, depends more on firms, courts and clients than on regulation alone. So I'm not a person of the view that law societies should play a primary or driving force in this.

Tim

And you know,

13:26 the bar association also offers insurance coverage for lawyers in this area. Tell me a bit about that, and what are some of the pitfalls lawyers should think about if they do take that step and, you know, take a leave and draw on insurance coverage that they have.

Jason

Yeah, currently, at least in Ontario, but I think nationally, we have a tri-structure for our disability insurance. The CBA is effectively the sponsor and picks the coverage.

13:52 Lawyers Financial is effectively the administrator or the broker of the coverage, and Manulife is the provider or the underwriter. And the good news is mental health is covered in the standard insurance coverage we can obtain. It is limited to psychiatric disorders that are APA recognized, the American Psychiatric Association, and they're treated as a quote-unquote sickness, but they're not excluded from disability coverage.

14:18 So that's key point number one. The other thing lawyers need to keep in mind is that that type of coverage is really functional, not diagnostic. So entitlement to coverage really turns on capacity to practise law rather than simply having a diagnosis of a mental health condition. So that's a real important distinction to be aware of. Lawyers also need to

14:44 understand that if this is triggered, there is a great deal of specialist care that's required. So psychiatric disability, as required by the policy, does require ongoing care by licensed psychiatrists or clinical psychologists. And there's an extensive documented treatment compliance obligation on lawyers. So they have to get ready for quite a bit in that regard.

15:10 Probably the most important point, Tim, is that the definition of disability, total disability, is a bit of a trap. Total disability under this current policy available to us requires you to be unable to practise law and not gainfully employed. So paid work of any kind can create disputes. And that's very challenging for lawyers, because even though a lawyer may be unable to function, like practise law, that lawyer may still

15:36 be perfectly capable of and desirous of doing other work, maybe even in the legal industry: consulting, tribunal work, NGO work. So a lawyer may very well, you know, we're all very highly motivated, generally speaking, and we're achievement oriented. So even if a lawyer is experiencing a mental health condition that puts a temporary disruption on his or her practice, there may still be other

16:02 options out there. But the trap under this policy is that you cannot earn income from any other sources if you're going to get total disability benefits. So it's very important that when you look at this coverage, which you must have, and you should have in place if you do not, that you buy and purchase what's called the own-occupation rider; it is critical. And basically, it replaces the disability definition and removes that gainful

16:28 employment issue entirely. So it allows lawyers other work while still receiving full benefits. Lawyers also should be aware that mental health claims under this policy of insurance are really evidence driven. So there's extensive documentation, functional capacity tests and compliance that will be required by Manulife, and insurers have

16:54 fairly broad proof and exam rights under the policy. So it can be a very onerous process for a lawyer to go through, particularly in a time of vulnerability as a result of a mental health condition. Manulife still maintains some leverage in the policy, in the sense that these benefits can be modified, they can be withheld, they can even be clawed back for noncompliance by the lawyer with respect

17:20 to this extensive documentation and treatment process. There's also reservation-of-rights payments, as you might typically find in another insurance contract. And lawyers really need to be mindful that disability insurance is separate and distinct from business expense insurance, which is much narrower. Every lawyer, in my opinion, should have both: disability income replacement and business expense insurance, which

17:46 basically covers only overhead. It's not personal income to the lawyer. It's often time limited; the max is about 24 months, and it depends on age and practice status. So that's also something lawyers should have in place, is effective business expense insurance, or BEI. And then I think lastly, Tim, under this current policy available to us, there is the opportunity for both the CBIA

18:12 and Manulife to amend or change the master policies of the insurance prospectively, not retroactively. So there's some risk of that, and lawyers who buy this insurance or subscribe to it, or even making a claim on it, should really be careful to monitor the coverage and the terms on an ongoing basis.

Tim

Well, that's a lot to think about for lawyers, but we're nothing if not detail-oriented.

Jason

18:38 It's a manageable risk, I guess you could say.

Tim

So let's get back to the systemic level. You mentioned, you know, the law societies may not be the best ones to help in a lot of these situations. Bar associations, law firms are better situated. Have you seen, you know, positive indications of programs or things that law firms or organizations are doing that give you hope about how the profession may better manage mental health and

19:04 mental illness?

Jason

Yes, absolutely. For example, there's a surge nationally across the country of the appointment of wellness coordinators, particularly in the mid-sized to larger firms. Often those wellness coordinators are tied to the HR department and sometimes manage disability-related claims at the same time. But there are programs being put in place internally to

19:30 review, normalize the discussion about mental health, and even have, you know, speakers brought in or other resources made available. My firm, for example, appointed a mental health first aid officer by bylaw. My firm is a corporation, and we actually formally amended our articles to include this bylaw, where we appointed a non-managerial person to be the mental health first aid officer, and the Canadian Mental Health Association offers two

19:56 days of intensive training to that person. And that role at my firm has been wildly successful and often utilized. So there's another example of what firms could do. But really where the discussion needs to happen is simply having the discussion at most firms. Interestingly, Tim, I've spoken so extensively across North America, and I often get asked by associations or

20:22 companies or maybe private groups to speak about this. One thing I've never been asked: no law firm has ever asked me to speak about mental health in their workplace, which I think, in my view, is telling.

Tim

So you've spoken with many associations and organizations, but no law firm. They're just not comfortable having someone speak about this. Is that your impression?

Jason

20:48 I don't know if it's that, or if it's not on their radar adequately enough, but certainly the fact that I've never even been contacted by a law firm about my experience or proactive measures that might be considered for better wellness in the workplace, I've never heard anything. And that is revealing to me, that that culture really needs to change.

Tim

Well, that's a good way to end our discussion. I'm sure we could keep talking, but there's lots more to follow and cover about law firms as well as the profession more broadly. So thank you so much for joining us today, Jason, in talking about the more structural issues; your individual experience you've turned into bringing insights. So we look forward to hearing more about your career and your speaking about this issue across, as you say, North America. And thank you for joining the podcast.

Jason

21:40 Thanks for the opportunity, Tim, and again, thank you for everything you and others are doing on this issue.

Tim

Thank you for tuning in to CL Talk. You can listen to the latest episodes on Apple, Spotify, Amazon, and all major listening channels. Just search for CL Talk. (music)