Historically, the legal profession has grappled with stigma surrounding mental health issues.  This can sit uncomfortably with the requirement that all Australian legal practitioners be a “fit and proper person” to practice law. 

In Council of the New South Wales Bar Association v Waterstreet, the New South Wales Civil and Administrative Tribunal (NSWCAT) considered whether the conduct of a high-profile barrister, Mr Waterstreet, amounted to unprofessional conduct or professional misconduct in relation to three complainants.  The conduct complained of included boundary violations, oversharing, failure to pay wages and overly sexualised communications with employees.

Ultimately, the Tribunal found that the respondent’s behaviour constituted the lesser offence of unprofessional conduct, rather than professional misconduct.  The relationship between the respondent’s serious and (at the time) untreated bipolar disorder to his behaviour was relevant to the Tribunal preferring to characterise the breaches as unprofessional rather than misconduct.  The Tribunal concluded that:

“We decline to find that Mr Waterstreet, by reason of the conduct proven against him in this matter, is not a fit and proper person to engage in legal practice under s 297(1)(b) on account of attributes of his character. The Council has not established that Mr Waterstreet’s character played a sufficient role in his offending conduct for an adverse finding to be made under s 297(1)(b), and the psychiatric evidence, which we accept, indicates that Mr Waterstreet’s then undiagnosed and poorly controlled bipolar II disorder was the dominant causal factor in his offending conduct.

The Applicant (the NSW Bar Association) argued that Mr Waterstreet’s behaviour was more related to a disorder of personality, rather than mental illness, and therefore an aggravating circumstance of a flawed character. 

Expert evidence before the Tribunal persuasively outlined that the traditional distinction relied upon by the Courts between mental illness (mitigatory) and personality disorders (aggravating) was a false dichotomy and failed to properly recognise the complex relationship between mental illness and personal responsibility.  The Tribunal accepted the evidence that the respondent’s mental illness was the main causal factor behind his unprofessional conduct; and so the issue of whether he was “fit and proper” did not need to be resolved by reference to underlying questions about his character.

It is important for legal regulatory bodies to recognise the complex interplay between mental illness and fitness to practice.  Mental health issues can certainly impair judgment, communication, and decision-making abilities, potentially compromising the duty of care lawyers owe to their clients, employees and the administration of justice generally.  On the other hand, regulatory bodies must strike a balance between protecting the public interest and safeguarding the rights of legal practitioners.

For practitioners who are facing a complaint to the Legal Services Commission or other regulatory body, the lessons from the Waterstreet decision are clear.  Whilst serious mental illness should not alone disqualify a person from legal practice, its impact on professional conduct and ethical obligations cannot be overlooked.  Assessing fitness to practice requires a nuanced understanding of how mental health intersects with professional responsibilities.  The case provides the potential for reflection within the legal profession. By acknowledging the complexities of mental health and its impact on professional practice, we can work towards a more resilient legal community.

If you are a solicitor or barrister who has had a professional conduct complaint made against you, seek legal advice as soon as possible from a lawyer with expertise in professional standards and conduct cases.  At Jasper Fogerty Lawyers, Julia Jasper and Rebecca Fogerty have the right experience to ensure that your rights and interests remain at the forefront.  Julia Jasper is a Queensland Law Society Senior Counsellor, and Rebecca Fogerty is a former Queensland representative of the Professional Standards Councils.