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Why do capable lawyers hide a disability? Because the processes ask them to disclose first, and the fear of the regulator discourages exactly that, writes Dr Benjamin Koh.
Imagine an experienced lawyer, with many years in practice and good at the job, who misses a court deadline because a system they were required to use did not accommodate their disability. The court asks for an explanation. The honest answer is that the system failed them. But rather than stating so, they instead admitted they were “sloppy”, for fear of being discriminated against or drawing the audit of the regulator as to their competence.
While the incident is real, the reason for this article is focused on the cultural gap in the legal profession and the systems lawyers with disabilities must operate in.
So, if you are a lawyer and have a disability (whether visible or hidden) and are faced with the same situation, which answer would you give? It seems fear dictates the same answer that lawyer took.
The fear of the regulator
Admitting carelessness costs a lawyer a rebuke. Admitting a disability, they worry, could cost far more – a regulator asking whether they are fit to practise at all.
Although the fear may be misplaced, it points to a culture of why it is held. In NSW, the regulator must not grant or renew a practising certificate if it considers the applicant is not a fit and proper person, and one of the matters it may weigh is whether the applicant is currently unable to satisfactorily carry out the inherent requirements of practice. On its face, that is a question about whether a lawyer can do the job, not whether they have a disability. Victoria’s regulator says it requires disclosure of a mental health condition only where it affects the ability to meet the inherent requirements of practice, and that disclosure does not necessarily mean a lawyer is unfit, though it can still lead to an inquiry.
The law is good on paper
The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate on the grounds of disability in the way goods, services or facilities are provided (s 24). Discrimination includes failing to make reasonable adjustments where that failure leaves a person treated less favourably than someone without the disability would be (s 5(2)). Software or electronic devices that cannot be used with a disability are such barriers. Lawyers know the law, so their reluctance to rely on it points to a practical burden.
Who carries the burden
The difficulty is not capability. It is a process that puts the onus on the person with the disability. NSW courts and tribunals ask people with a disability to contact the court, or to complete a request for assistance form, as soon as they know where and when they must attend. NCAT’s brochure offers its services “upon request”, organised ahead of time. Those processes begin with a disclosure, and disclosure is exactly what the fear discourages.
There is also a gap. The NSW court pages focus on people who come before the court: parties, witnesses and jurors. Lawyers, the people who help the system operate, appear only in passing, and the pages are largely silent on the point. The Judicial Commission’s bench book in NSW does tell judicial officers that a lawyer may have a disability, and says courts should “ideally” let lawyers state their needs when they file. In Queensland, the Law Society has told its Chief Justice that practitioners with disability have no formal or confidential way to raise their needs. Some disabilities are hidden, so a system that waits for them to be asked will miss them. An inclusive one assumes that some of the people in the room, lawyers included, need it to work for them.
What hiding costs
A 2020 NSW survey found that only 6 per cent of practitioners identified as living with disability, compared with about 20 per cent of the broader community. I suspect that fear accounts for part of this disclosure gap. This view is supported by another review, which found that people with a concealable stigma experience considerable stress because of ambiguous social situations and the risk of discovery.
Trained as a doctor before becoming a lawyer, I am aware that many in the medical profession are reluctant to seek help for their own mental health for fear of a mandatory notification to the regulator. In both the medical and legal professions, a regime built to protect the public risked deterring the very practitioners who most needed care. How an institution responds to disability affects the mental health of the people living with it.
What would help
Three changes would help:
A court is entitled to an accurate explanation. The profession should make it safe to give one.
Until then, some of the most capable lawyers among us will keep saying “I was sloppy” when the truth is “the system failed me.”
Dr Benjamin Koh is a Fellow at UTS and associate at McInnes Wilson Lawyers.
