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January 23, 2024 Feature

The Ethics of Addiction in the Legal Profession

Michael A. Mosberg and Ella R. Cohen

Family law can be a physically, emotionally, and mentally demanding practice. But when a family law attorney’s client, opposing counsel, or the family law attorney themselves are battling addictions, they must focus their attention on yet another issue: their ethical obligations regarding what, if anything, to say or do.

Unfortunately, statistics suggest that family law attorneys are likely to encounter clients or colleagues battling addiction and might battle addiction themselves. According to the National Center for Drug Abuse Statistics, 22 percent of males and 17 percent of females used illegal drugs or misused prescription drugs within the last year, and in 2018 almost 19 million people over the age of 12 needed substance abuse treatment. Regarding lawyers specifically, according to a Hazelden Betty Ford Foundation report published in 2017, 39.5 percent of women and 33.7 percent of men in legal professions reported problematic drinking behaviors. More recently, in Bloomberg Law’s 2022 Attorney Workload and Hours Survey, 7.6 percent of attorneys reported they abused alcohol or drugs in the past quarter.

Clients and attorneys suffering from an addiction can implicate ethical issues. An addicted client may place an attorney in an untenable position—proverbially being stuck between a rock and a hard place—as that attorney may feel torn between complying with their ethical duties and acting in the best interests of the client. When opposing counsel or the attorney themselves is addicted, ethical issues arise regarding reporting that behavior (with the former) or how the addiction may affect the attorney’s ability to serve their clients (with the latter).

In this article, we explore these ethical issues by looking at the American Bar Association’s (ABA’s) Model Rules of Professional Conduct, as well as selected ABA and state bar ethics opinions.

Attorneys’ Ethical Obligations Regarding Addicted Clients

When working with addicted clients, the ABA Model Rules advise attorneys to maintain as normal of an attorney-client relationship as possible. But when the client’s behavior prevents the attorney from doing so, or they sense their client’s addiction may put the client in harm’s way, attorneys need to balance maintaining client confidences with taking action that is in the client’s best interests.

ABA Model Rule 2.1 reminds attorneys what family law practitioners inevitably learn soon after starting their practice: Attorneys’ advice to clients need not center solely on the law. Rule 2.1 states that when representing clients, attorneys “shall exercise independent professional judgment and render candid advice.” When doing so, attorneys “may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.” Id. Thus, it is within an attorney’s ethical duties—and some might say, moral duties—when working with an addicted client to exercise judgment and provide advice concerning their addiction and similar mental health issues that may bear on their legal matter.

If providing advice to an addicted client requires speaking with third parties, attorneys must be cognizant of their ethical duty to maintain client confidences. ABA Model Rule 1.6(a) prohibits attorneys from revealing information “relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” However, under Rule 1.6(b)(1), attorneys have leeway with disclosing client confidences to third parties if they reasonably believe that doing so is necessary “to prevent reasonably certain death or substantial bodily harm.”

However, if a client’s addiction diminishes their decision-making capacity, an attorney need not wait to disclose information about the client’s circumstances to third parties until they reasonably believe their client may die or suffer substantial bodily harm. ABA Model Rule 1.14(b) allows an attorney who reasonably believes their client has diminished capacity and “is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in [their] own interest” to “take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client.” Rule 1.14(c) impliedly authorizes an attorney under Rule 1.6(a) to make such a disclosure, “but only to the extent reasonably necessary to protect the client’s interests.”

Attorneys, however, should not rush to disclose a client’s diminished capacity because of addiction when seeking help from third parties. Rule 1.14(a) requires an attorney to, “as far as reasonably possible, maintain a normal client-lawyer relationship with” a client whose decision-making capacity is diminished. That, along with Rule 1.14(b)’s reference to “substantial” physical, financial, or other harm, suggests that when an attorney reasonably believes a client is suffering from an addiction, but the client is neither at risk of “reasonably certain death or substantial bodily harm” nor at risk of “substantial” harm, the attorney should not disclose client confidences and need not “take reasonably necessary protective action.” While the attorney can certainly discuss the negative impact the addiction may have on the client and suggest ways for the client to seek treatment, without further evidence that the client is at risk of substantial harm, an attorney should do their best to treat their relationship with this client like any other, including affording the client the same amount of patience, flexibility, and grace the attorney would afford a client of diminished capacity because of physical health or age.

At least three state ethics opinions endorse this approach of attorneys maintaining a “normal” client relationship with an addicted client until the addiction rises to a level of causing substantial harm.

The State Bar of California Standing Committee on Professional Responsibility and Conduct’s Formal Opinion No. 2021-207, regarding the ethical obligations of an attorney concerning a client with diminished capacity, stated that when a client is of diminished capacity, an attorney’s ethical obligations to the client “do not change, but the client’s diminished capacity may require the [attorney] to change how [they go] about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected.” The opinion also noted that when an attorney represents a client who may have diminished capacity, the attorney must not conclude “too readily that the client is not capable of making decisions about the representation, without due attention to the legal presumption of capacity, without assessing capacity on a decision by decision basis, and without taking any measures to enhance the client’s ability to make and communicate an effective decision.” Of course, the attorney may take protective measures when they reasonably believe the client’s diminished capacity exposes them to harm.

The Illinois State Bar Association’s Professional Conduct Advisory Opinion 17-01 (2017) responded to an inquiring attorney whose client was addicted to drugs and appeared severely impaired during court hearings (although the client remained silent throughout the proceeding). In response to the inquirer’s question about whether he “must reveal his client’s addictions to the Court in order to prevent reasonably certain death or substantial bodily harm to his client,” the committee concluded that the attorney’s “knowledge of a client’s addictions, without more” did not result in an obligation to disclose such information to prevent reasonably certain death or substantial bodily harm. The committee noted that if an attorney had additional information about the increased danger of death or substantial bodily harm to a client “beyond the risk inherent in the client’s being an addict, such as a history on the part of a client to attempt suicide or to cause bodily injury to himself, or the existence of believable threats by the client to do himself injury,” these considerations may push the attorney to disclose the client’s addiction.

Finally, the New York State Bar Association Committee on Professional Ethics’ Ethics Opinion 1106 (2016) suggests that attorneys can recommend their clients seek treatment for addiction, but they must know when to defer to their client. The opinion responded to the inquirer’s concern that, as a defense attorney whose clients sometimes struggle with substance abuse issues, the attorney’s failure to address the client’s substance issues may lead to recidivism or death. In the opinion, the Committee stated attorneys may “render advice that includes considerations such as the benefits and risks of entering a drug treatment program.” When doing so, the attorney must act competently and adequately and explain to the client the material risks of the proposed course of conduct, as well as reasonably available alternatives. Once the client takes a certain course of action, the attorney must follow their client’s directives even if they conflict with what the attorney believes is in the client’s best interests.

Attorneys’ Ethical Obligations Regarding Addicted Attorneys

Attorneys interacting with an opposing counsel who appears to be suffering from an addiction need not report that attorney to their state bar unless they know the attorney is violating ethics rules. However, if an attorney suspects another attorney is struggling with an addiction, or the attorney themself is addicted, they should strongly consider contacting an approved attorney assistance program.

Attorneys wrestling with addictions, or any other condition that impairs their professional judgment and ability to represent clients, may violate several ethics rules when continuing to do so, including:

  • ABA Model Rule 1.1 Competence
  • ABA Model Rule 1.3 Diligence
  • ABA Model Rule 1.4 Communications (If they do not or cannot “reasonably consult” with the client about their objectives, “keep the client reasonably informed about the status of the matter,” or “promptly comply with reasonable requests for information.”)
  • ABA Model Rule 1.6 Confidentiality
  • ABA Model Rule 1.15 Safeguard Property
  • ABA Model Rule 8.4 Misconduct (If they violate ethics rules; commit a criminal act that reflects adversely on their honesty, trustworthiness, or fitness as an attorney in other respects; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or engage in conduct that is prejudicial to the administration of justice.)

That being said, attorneys struggling with addiction may show no signs of impairment and continue to function with respect to their professional obligations and remain in compliance with ethics rules. Appearing to have an addiction, or even admitting to having one, in and of itself, does not violate ethics rules.

This is an important distinction, particularly when taking into consideration ABA Model Rule 8.3(a), which concerns reporting professional misconduct. When an attorney “knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,” under Rule 8.3(a) that attorney “shall” report that violation to the bar of which the other attorney is a member. That said, the language of Rule 8.3(a) would not require an attorney to report another attorney to their bar based solely on a suspicion (or knowledge) of substance abuse, unless the attorney also knew the other had violated ethics rules in the manner described in the rule. Likewise, there is no provision requiring an attorney to self-report their addiction—or even any potentially unethical conduct stemming from it.

Ethics opinions from the ABA, the North Carolina State Bar, and the Virginia State Bar are in line with this perspective.

In ABA Formal Ethics Opinion 03-431 (2003), the ABA reminds attorneys that, often, “lack of fitness will evidence itself through a pattern of conduct that makes clear that the attorney is not meeting her obligations under the Model Rules,” and that “a lawyer may not shut [their] eyes to conduct reflecting generally recognized symptoms of impairment.” But the opinion adds that “knowing that another lawyer is drinking heavily or is evidencing impairment in social settings is not itself enough to trigger a duty to report under Rule 8.3. An attorney must know that the condition is materially impairing the affected attorney’s representation of clients.” North Carolina State Bar 2003 Formal Ethics Opinion 2 held the same, adding that while an attorney would not be required to report another attorney’s addiction-related behaviors unless they had knowledge of an actual ethics violation by the other attorney, “professionalism would encourage” an attorney to communicate their observations to an approved lawyer assistance program. So too did Virginia State Bar Legal Ethics Opinion 1887 (2017), which noted that “other than a lawyer who is a partner or in a supervisory role in a law firm, lawyers do not have a duty to proactively address the impairment of other lawyers.”

Lawyer assistance programs throughout the United States assist judges, attorneys, and law students facing mental health or addiction issues by providing confidential, and usually complimentary, services and support. Many lawyer assistance programs provide 24/7/365 live support and offer general information and resources, referrals to independent healthcare providers, and access to peer support. These programs are not affiliated with disciplinary arms of their state bar associations. The ABA’s Commission on Lawyer Assistance Programs maintains a list on its website of links to state bars’ lawyers’ assistance programs across the country.

Balancing Ethics Compliance with Human Compassion

There are no easy answers when it comes to being confronted with a client or an attorney who is, or appears to be, suffering from some form of addiction. Some may feel the urge to help, while others do not want to overstep or misjudge what they perceive. In either instance, when attorneys, their clients, or opposing counsel struggle with addiction, ethical rules may be implicated. If it is a client who is suffering, the ABA Model Rules suggest attorneys should maintain a normal attorney-client relationship to the extent possible. When doing so is no longer viable, or an attorney believes their client is at risk of “reasonably certain death or substantial bodily harm” or “substantial” physical, financial, or other harm, the Model Rules allow attorneys to disclose confidential information regarding the client, but only to the extent reasonably necessary to protect the client’s interests.

If it is opposing counsel who is suffering from an addiction, attorneys do not have a duty to report that information under ABA Model Rule 8.3 unless the attorney knows opposing counsel has violated a Model Rule because of the behavior caused by their addiction. However, if attorneys merely suspect opposing counsel or a colleague is suffering from an addiction, they can recommend the other attorney contact their local lawyer assistance program for help conquering the addiction. When attorneys themselves are the ones struggling with an addiction, they would be wise to do the same.

Unfortunately, statistics suggest that at some point in their careers, attorneys will encounter a client or opposing counsel struggling with an addiction. By understanding what the ABA Model Rules require of them in such a situation and devising an ethically compliant plan to help the afflicted person, attorneys can meaningfully assist that person without fear they would run afoul of their ethical obligations when doing so.

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Michael A. Mosberg

Mosberg Sharma Stambleck Gross LLP

Michael A. Mosberg is a founding partner of Mosberg Sharma Stambleck Gross LLP in New York City, representing high-net worth individuals in all areas of family and matrimonial law. He is a past-Chair of the ABA Family Law Section (2020–2021).

Ella R. Cohen

Mosberg Sharma Stambleck Gross LLP

Ella R. Cohen is an associate at Mosberg Sharma Stambleck Gross LLP in New York City.