Assist and the Choice of Counsel(lor)
As lawyers, most of us believe that choice of counsel is an important principle in our justice system-- when individuals, particularly in criminal proceedings, have the right to select a lawyer rather than having one assigned to them. In Canadian criminal law, an arrested person has the right to contact counsel of their choosing, but this right is not absolute, and the exercise of the right to choice of counsel must be exercised diligently. My foray into this substantive law concept is solely to set the stage for my incredibly clever title for today’s blog: how does Assist deal with the issue of whether users of our counselling service have the right to counsel(lors) of their choice, an issue that arises periodically.
Assist provides professional counselling services to all Alberta lawyers, articling students, law students and eligible dependent family members. If you are reading this blog, there’s a good chance that you already know this. But there are a few components of our counselling program that occasionally get missed by many of us due to information overload and the general busyness of our lives and practices.
Generally, we receive very positive feedback from individuals who use our counselling program who choose to share feedback. We do not conduct post-use surveys, however, for two reasons: First, confidentiality is a cornerstone of our program. As Executive Director of Assist, I do not know the identities of people who use our service. When you call our counselling services number (1-877-498-6898), you will be assigned a four-digit unique identification code. I receive invoices that list services provided using these codes. I don’t know who 4728 is, or 3524, or any other combination of digits. This is added protection for you: I wouldn’t disclose your confidential information and I am bound by our Code of Conduct duties of confidentiality, but I certainly cannot disclose information that I do not have.
On occasion, the head of our counselling program will want to connect a lawyer with peer support resources or other programs in the legal community, and with the participant’s permission, he will arrange for me to speak to them. And sometimes, he will want me to provide information to a lawyer or student about a legal profession program or process. But no personal identifying information is disclosed without informed consent. We take confidentiality seriously, and following up with program users perhaps by email—even if a survey came directly from the counsellors’ office—could potentially be perceived as a weakness in our confidentiality assurances.
And secondly, post-use surveys tend to have very low response rates. I investigated this when I first joined Assist six years ago. I found draft surveys in an ancient file and wanted to know more about them. I learned that the response rate when we tried doing this was around 5%, so even if we explained our outreach and how we were still preserving confidentiality, we would generate data that was not statistically persuasive.
When I am connecting lawyers and students with our counselling program, I tell them that if they don’t feel that the assigned counsellor is a fit, they can contact the counselling office or speak to Dr. Forbes, the head of our program. This is because we know that we click better with some people than others—and it is essential in the counselling relationship that the participant feels comfortable with the counsellor. We do not want our program participants to lose time or energy trying to develop a relationship which does not start well—there is just no reason that a person experiencing stress, distress or crisis should have to dig the relationship out of a hole!
Let me share a story about a similar situation but in a different context. My youngest son had chronic ear infections as a baby which impacted his speech development. We were referred to a speech pathologist with an excellent reputation when he was about two. We attended the first appointment and met the speech pathologist who was wearing very bright colours with large almost phosphorescent beads, and who had a loud booming voice. The speech pathologist told my toddler that she would be talking to his mom first and that he could play with toys in the meantime. I saw his lower lip start to tremble. And when she asked him to come over so she could speak with him, using her very loud voice because she deals with children with hearing issues, he burst into tears. I spent the rest of the session consoling him—he wouldn’t even look at her. I then called our pediatrician and asked if we could be referred to someone else as I didn’t think her manner worked for my child, and I didn’t think my vulnerable toddler should have to help dig this professional relationship out of a hole. We were referred to another excellent speech pathologist with a gentler manner and my son responded very well to her. The story has a happy ending: as his ear infections cleared, his speech development returned to normal development, but I always remember the visit with the first speech pathologist who inadvertently frightened him.
I’m sure that the first speech pathologist had excellent skills and I’m sure that many children responded well to her jovial and booming manner. But my child didn’t, and I didn’t want to put my child through a process of trying to force a relationship which didn’t start well.
A similar thing can happen with a counsellor. For whatever reason sometimes the participant and the counsellor don’t generate the bond necessary to a successful counselling relationship. So, if you (or your inner child) don’t feel a connection with a counsellor, please don’t worry that you are being “difficult” or that this will have a negative consequence to the counsellor. Just call and ask if you can switch to a different counsellor. It is helpful if you can articulate something that made you less comfortable, but it is enough that the bond didn’t happen.
So, you can ask to see a different counsellor—you have that choice because choice of counsellor is important, within the bounds of our program.
Not infrequently, lawyers ask me if we can reimburse them for their counselling expenses while seeing a counsellor who is not part of our network. The answer is no: you have choices within our network, but we have negotiated preferential rates with the counsellors (all senior level, having on average at least ten years of experience before joining our network) and the head of our program also provides case management services. Our counsellors specialize in working with professionals—lawyers, accountants and physicians. They understand the dynamics at play in professional services firms, and their credentials have been carefully vetted by Dr. Forbes.
This is not to say that there are not excellent counsellors who do excellent work with lawyers outside of our program—but you can only run a funded program with clear parameters and structures. And we cannot have 11,000 one-off arrangements with dozens or hundreds of invoices every month and multitudinous communications with providers.
This is especially important since Assist is a registered charity. This means that we have reporting obligations to the Charities Directorate of the Canada Revenue Agency and that we must conduct our operations in accordance with the best practices of the Canadian not-for-profit sector. In the charities’ world, keeping administrative expenses low is extremely important as many potential donors scrutinize charities’ expense records (available on public websites) to weed out organizations who spend excess funds on administration expenses. Operating a charity is tricky because on one hand, you must keep administrative expenses as low as you can, but you also must have sufficiently robust administrative and governance processes to ensure that you are effectively stewarding the resources entrusted to you.
Managing our programs in accordance with careful parameters is especially important for Assist—if we were adding counsellors haphazardly and negotiating rate structures and figuring out how to incorporate one-off data (preserving confidentiality somehow) into our aggregate reporting structures while preserving confidentiality, our administrative expenses would increase, possibly significantly.
We are very proud that our administrative expenses are healthily below 10%, a standard in the charities’ world. Did you know that Assist posts its financial statements, reviewed by MNP LLP, on our website? Visit https://lawyersassist.ca/about/annual-report/?
Just like your legal practice, money doesn’t grow on trees in Assist’s world. We must make each dollar go as far as we can. Every year when we apply for funding (about 80% of our operating expenses) through the Law Society’s Third-Party Funding program, Law Society staff ask me if the cost of our professional counselling program, which is beyond our control, has finally plateaued out. The answer has consistently been “no,” “not yet,” and variations on that theme.
Usually, about 8 to 10% of eligible lawyers and students access our counselling program each year. More than 30% of Alberta lawyers have used this program since 2008 when our current provider came onstream. This is more than one in four lawyers! It suggests that Alberta lawyers are fairly comfortable meeting with a counsellor when they experience stress, distress and crisis, and that stigma may not be as entrenched as we believe.
In order to be able to meet the needs of everyone who wants to access counselling, we must ensure that we are receiving high quality counselling with a senior Registered Psychologist who has a long-term relationship with our program, and we can only do this by working with a sole source provider who provides preferential rates due to the volume of files.
To expand our program to include the right to retain any Registered Psychologist in the province at their regular rates, we would have to significantly increase our fundraising. We commit to fundraising about $100,000 each year to help us maintain our independence from the Law Society. And fundraising is a challenge in the current climate, so I do not believe that this is a viable option.
Speaking of fundraising, ticket sales for Assist’s Hand to Hand evening in Edmonton on October 3, 2024 are now on sale. Michael Bryant, lawyer and former Ontario Attorney General, will share his experience of facing criminal charges after a motor vehicle incident and effectively having to prove his innocence as the justice system could not be seen to be favouring an "insider." So, not only may lawyers not have the right to counsel(lors) of their choice, but we can also, in rare circumstances, face rebutting a presumption of guilt!
Michael will share how he coped, maintaining his sanity and sobriety, while in a Kafka-esque situation, being arrested, jailed, arraigned and having to launch his own investigation.
Please join us at the Hotel Macdonald for this engaging evening. We will have signature mocktails while networking, a lovely dinner, an excellent speaker and the opportunity to bid on a specially created painting Edmonton artist, Gisele Davis.
Hand to Hand events alternated between Edmonton and Calgary in the pre-pandemic world. This event is our first post-pandemic event, and we hope to see our friends from our newsletter community in person.
Loraine