In all the many legal ethics opinions I have reviewed on the topic, notably the wishy-washy ABA Formal Ops on what to do with an alcoholic or otherwise impaired firm partner or when an adversary is obviously impaired, and various state legal ethics opinions on the topic in addition to various treatises on the ethics of lawyer addictions, one delicate issue is consistently sidestepped: the reality of Rule 1.4, Communication. The consensus analysis seems to be that an attorney is not ethically obligated to inform clients that he or she is an alcoholic, “provided the condition does not materially impair their ability to represent the client.” However, if the addiction “compromises their competence, the attorney must decline or withdraw from representation,” the prescription of Rule 1.16, “Withdrawal.”
But Rule 1.4 states, to give my primary jurisdiction’s relevant language, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Is the fact that one’s attorney or a lawyer one is considering retaining as an attorney suffers from a periodically crippling addiction that can surface at any time, unpredictably, causing diminished skills and handicapped decision-making ability something a client should know in order “to make informed decisions regarding the representation”? The answer is self-evident. However, there is no such acknowledgment of this ethical obligation in the rules, nor is it ever discussed openly.
That is not surprising. The profession has a disproportionate number of alcoholics and has had for centuries. Estimates are as high as 20%. If alcoholic lawyers had to inform clients of their addiction and the significance of it, there is little question that their careers would be adversely affected. This is a straight Golden Rule issue, however. Knowing what I know about the disease, would I want to be informed if I had or was considering an alcoholic as my attorney? Alcoholic lawyers know better than anyone how unpredictable the illness is.
Alcoholics are not trustworthy regardless of what stage they are in regarding their recovery. A client or a potential client must be informed by the lawyer that he or she suffers from alcoholism, because no client can make an informed decision about the representation without knowing that crucial fact.
The first response I received to my message to the APRL membership was predictable. An ethics lawyer wrote in part, his metaphorical pen dripping with sarcasm,
“Bravo, Jack! A grand idea, indeed! I’ve been marinating on a modest proposal of my own: I think lawyers should be made to disclose whether they engage in bad-faith argumentation under the guise of independent thought and iconoclasm. Our field is also unfortunately rife with practitioners whose principal vice is not alcoholism but the conviction that every intuition they happen to hold is a profound ethical insight waiting to be unleashed. Rule 1.4 would seem to require disclosure of that condition as well. After all, how can a client make an informed decision regarding representation without knowing whether counsel is prone to mistaking personal anecdote for empirical evidence, broad-brushing entire classes of people as inherently untrustworthy, and then announcing that any disagreement must necessarily be self-serving?
“Any argument to the contrary is simply a moral failing. Onward, ho!”
As you can see, this jerk chose to deflect and attack the messenger rather than deal with the issue directly and honestly. Being an alcoholic isn’t unethical or immoral. A lawyer concealing that fact from someone who is placing important matters in that lawyer’s hands is. One feature of Rule 1.4 is that lawyers have an obligation to answer truthfully direct questions regarding the representation. As long as the profession actively avoids mandating that alcoholic lawyers inform clients of a condition that implicates their trustworthiness, competence and honesty, the public must be educated to ask this question of their attorneys at the earliest possible juncture:
“Do you currently suffer from alcoholism, any other substance addiction, or a serious or progressive health problem that could adversely affect your ability to represent my interests?”
Not answering that question honestly and completely would be grounds for bar discipline.
Ethics Alarms 
Ooooh..oooooh! Do physicians next!
My mother-in-law’s cardiologist totaled a highway patrol vehicle while driving drunk. No charges were filed. It was a weekday. He may have done procedures that day.
I always wondered what “moral turpitude” meant. Maybe alcoholism should be disqualifying. Or maybe just from private practice. If your client is your employer and/or the government and they know, you should be good to go.
“I always wondered what ‘moral turpitude’ meant.”
C’mon, YB; MORAL TURPITUDE was main-streamed when the aptly-named Beulah Balbricker (Nancy Parsons) chose it as THE way to fire the (IMO) very fetching Kim Cattrall’s Honeywell in Porky’s.
That’s when it became clear to me, leastways…
PWS
You’re dating me, Paulie. “Porky’s” was more heir no. 2’s era than ours.
I think that ethics lawyer is either marinating in something other than modest proposals, or the field of legal ethics is not as selective of their representatives as some other fields, such as carnival workers. With a few small tweaks, this is essentially what that genius is saying:
“Bravo, Jack! A grand idea, indeed! I’ve been marinating on a modest proposal of my own: I think lawyers should be barred from operating a motor vehicle on public roads if they engage in bad-faith argumentation under the guise of independent thought and iconoclasm. Our field is also unfortunately rife with practitioners whose principal vice is not alcoholism but the conviction that every intuition they happen to hold is a profound ethical insight waiting to be unleashed. Illegally operating a motor vehicle would seem to require that condition as well. After all, how can innocent civilians feel they are being legally protected when another driver is prone to mistaking personal anecdote for empirical evidence, broad-brushing entire classes of people as inherently untrustworthy, and then announcing that any disagreement must necessarily be self-serving? Any argument to the contrary is simply a moral failing. Onward, ho!” Nonpareil ethical/legal scholar? Urbane polemicist? Multifaceted genius. Or a ratiocinative train wreck who looks in the mirror and delights that he can turn a clever phrase? (Gee… hard to tell…)
Did you get any positive reactions at all? I’d be curious to see screenshots of the whole thread.
My concern is, if any physical or mental condition is bad enough to require disclosure, t then should the person even be practicing? Not because it’s a “moral failing”, but because it’s like the one-legged man auditioning for Tarzan. If you have any kind of chronic condition that, when it manifests, cripples your ability to function, then any kind of high-stress, time-sensitive, odd-hours keeping job may not be for you.
Oh yes, but most members foxholed, and the dissenters were nasty.
I’ve written about Bill Fallon, “The Great Mouthpiece.” He was a renowned criminal defense lawyer and a famous drunk, but so effective even when drunk that his services were in demand.
Yes, practicing law, particularly in private practice, is hard, even when you’re not an alcoholic.
I remember in the late ‘eighties or early ‘nineties, all of a sudden, the county and state bars were all over getting lawyers to seek help for drug and alcohol issues before they screwed up and would have to be disciplined.
I think most of the lawyers I knew who behaved like alcoholics were what I think are called “dry drunks,” i.e., domineering assholes.
Full disclosure is the ideal, but perhaps the most difficult stage is convincing the person suffering from substance abuse that they are indeed impaired.
We’re literally talking about a person with reduced cognition, lowered inhibitions, and this state is how they feel normal.
It’s like the Dunning Kruger effect–they might feel like they’re at the top of their game after a couple shots, but they are lying to themselves and informing their client is perhaps easier than being truthful to themselves.
Alcoholics know they have a BIG problem. They just don’t know how to deal with it.
A few years ago, a complaint was made on our local social media about a cake shop nearby. The customer explained that she had gone to the shop several weeks ahead of time to order a custom-made cake for an important family event taking place. She’d spent an hour with the proprietor, discussing the features of the cake and placing the order. On her way out the door, her heart nearly stopped when the proprietor mentioned casually that she was having brain surgery later that week.
Immediately, the customer expressed her concern that the business owner would be able to fulfill the order after what sounded like a serious medical condition. The owner assured her that she would be back up and running by then and that her daughter would be assisting her. Against her better judgment, the customer accepted this.
I’m sure you can predict what happened. The business owner’s surgery had complications, the customer began having a hard time communicating with the daughter who still insisted she could fulfill the order until she finally admitted at the last minute that she could not. The customer had to purchase a sheet cake from a local supermarket.
I realize that cake bakers are not lawyers and that the cake baker did disclose her upcoming surgery (though it doesn’t seem that it was intended to help the customer make an informed decision), in each case, someone is hiring a professional to perform a service. A service the quality of which could be affected by the professional’s illness. In the case of a lawyer, though, a client could be out money, freedom or even his life if his attorney cannot perform his duties or makes mistakes due to his alcoholism.
On point.