Appropriate Discipline for the Attorney-addict
| Pages | 368 |
| Publication year | 2021 |
68 CBJ 368. APPROPRIATE DISCIPLINE FOR THE ATTORNEY-ADDICT
One of the most widely discussed issues in recent legal commentary has been how to deal with the growing problem of substance abuse among attorneys.(fn1) Unfortunately, such academic concern seems to be well-founded. A recent survey conducted by the American Association of Law Schools revealed that nearly nine percent of law students had used illegal substances during the month prior to the study (fn2). While the majority of such activity consisted of marijuana use, a surprisingly high number of students responded that they had also used "harder" drugs, including cocaine, heroin, and LSD.(fn3)
Drug use among members of the bar is not limited to experimentation while in law school, however. A 1987 survey conducted by the Washington state bar found that one in every four lawyers in the state had tried cocaine; only one percent had abuse problems, as compared to eighteen percent who had admitted to alcoholism.(fn4)
Drug abuse in the professional environment of an attorney can create havoc and result in a variety of problems such as missed filing deadlines, failure to advise clients of legal proceedings, failure to appear in court for scheduled hearings and/or trials, unauthorized use of clients' funds to support the attorney's drug habit and, in general, inattention to the work entrusted to the attorney by clients. Substance abuse by attorneys and its results present the courts with the problem of rendering appropriate discipline.
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The question becomes how should the courts and grievance committees deal with this problem. The most prevalent way courts deal with this problem is by disbarment or suspension, a fact which is illustrated by the increasing number of bar certified attorneys being faced with possible disbarment or
suspension because of substance abuse.(fn5)
Yet imposition of such harsh discipline may not be the most reasonable avenue of recourse because the primary purpose of attorney discipline is not punishment but, rather, the protection of the public, the profession, and the courts. The American Bar Association's Standards for Lawyer Discipline and Disability Proceedings state that the "purpose of lawyer discipline is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice."(fn6) This concept is illustrated in In re Kinnear where the court refused to disbar an attorney who had pled guilty to the distribution of cocaine. In its reasoning, the court specifically noted that the attorney's actions were not based on dishonesty or venality and that he had remained drug-free since his arrest. Although the court was concerned about fostering public confidence in the bar and about protecting the public from an attorney's wrongdoing, it stressed the need for "helping the lawyer overcome his addiction and once again become a productive member of society.(fn7) Also in The Florida Bar v. Hartman, where an attorney's misuse of clients' funds which was partially attributable to his use of drugs and alcohol warranted a two-year suspension, the court stressed that the "extreme sanction of disbarment is to be imposed only 'in those rare cases where rehabilitation is highly improbable."(fn8) With this mission in mind, courts and disciplinary committees should carefully consider the repercussions of their decisions before exacting their pound of flesh.
Prudent policymaking is especially important in light of the growing sentiment that chemical dependency is a disease, similar to alcoholism.(fn9) For example, the Connecticut legislature has
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