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.