Lawyers regulator refuses to ‘confirm or deny’ discrimination complaint

Student has complained of regulator’s alleged discriminatory actions

The Law Society of British Columbia, the province’s legal profession regulator, won’t release documents on any complaints about or from a student lawyer who has a discrimination complaint against it with the BC Human Rights Tribunal.

“The law society cannot confirm or deny the existence of any records of any complaints filed with the law society by or about any specific individuals, lawyers or law firms,” said society information and privacy officer Jackie Drozdowski in response to a Glacier Media access to information request for all complaints filed by student Malcolm Brown against law firms and the Law Society of B.C. as well as all reports and communications regarding those complaints.

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“Complaints received by the law society are confidential,” Drozdowski wrote Oct. 11.

The society’s legislated purpose is to regulate the province’s thousands of lawyers in the public interest.

Brown filed a complaint against the society earlier this year, alleging its articling (or practicum) disclosure provisions discriminate against him on the grounds of mental disability. He asserts the tribunal told the society to fix the issue years ago.

Brown told Glacier Media the society’s requirements and actions have caused him to lose articling positions, led him to quit law school and left him suicidal.

Brown acknowledged he has had alcohol problems in the past and that he has spent time in treatment for those issues. He also noted some run-ins with the justice system that were resolved in his favour.

He maintains, however, that the law society’s questions about alcohol and drug use discriminate against him.

The articling application suggests talking to a society bencher (a society director) to confidentially discuss an issue regarding the application. Brown said he did that and was told to contact a lawyer who, in turn, told him to disclose his situation to prospective employers. Brown asserts those disclosures cost him jobs.

The society won’t release any information about Brown’s attempts to find articling positions, saying it would violate third-party privacy.

As the case before the tribunal moved forward in September, the society attempted to have Brown disciplined through the tribunal for discussing the issue with a reporter. The tribunal declined to do that but gagged all parties.

What was left outstanding in Glacier’s story was an access to information request to the society seeking complaints and communications relating to Brown’s case.

The society in an Oct. 11 letter cited Freedom of Information and Privacy Act sections prohibiting disclosure of a third party’s information. It names Brown as one of those third parties.

The response is slightly at odds with a statement on the society’s website.

“The law society does not disclose whether a complaint has been filed against a lawyer or whether an investigation is underway,” the website says. “However, if the existence of the complaint has already been reported publicly, for example in the media, the law society may confirm that an investigation is underway.”

Brown provided Glacier Media with both his tribunal complaint and the Sept. 12 society response filed with the tribunal by Vancouver lawyer Patricia Gallivan.

Glacier Media’s access to information request also sought all communications and draft and final reports regarding the tribunal recommendations from a previous articling student’s human rights complaint against the society.

Brown based part of his complaint on those recommendations, asserting the society did not follow through on the tribunal’s suggestions.

There, Peter Mokua Gichuru complained about an articling question: “Have you ever been treated for schizophrenia, paranoia or a mood disorder described as a major affective illness, bipolar mood disorder or manic depressive illness?” Gichuru alleged the question was discriminatory and was interfering with his ability to secure an articling position.

A tribunal case summary says Gichuru had a history of depression.

“The law society then asked a lot of intrusive and irrelevant questions about his mental health to see if he was ‘fit’ to become a lawyer,” the summary said. “Gichuru was in a very vulnerable position with the law society. He was at the very start of his legal career. Decisions of the law society can have a significant effect on a lawyer. There was a power imbalance.”

The tribunal found the society intruded on Gichuru’s personal and medical autonomy with long-lasting discrimination. “Mr. Gichuru felt anxiety each time he had to have contact with the Law Society, both before and after he became a lawyer,” the summary said.

As a result, the law society changed its question to be less intrusive.

The application states its purpose in part to collect information determine if a person is of good character and fit to be a lawyer.

“The practice of law is often rigorous, demanding a high level of functioning,” the application states. “Any medical condition that would render you incapable of practicing law competently puts clients’ interests at risks and harm’s the profession’s reputation.”

The society would not disclose consultations on the Gichuru issue, citing solicitor-client privilege.

A review of society disciplinary decisions reveals multiple cases involving substance abuse.

B.C. lawyers pay a levy to support the Lawyers Assistance Program whose website states it provides “peer support and referral services to help people deal with personal problems – including alcohol and drug dependence, stress and anxiety, depression and other issues. These are all treatable illnesses, not moral issues.”

jhainsworth@glaciermedia.ca

@jhainswo

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