The Ethics of Addiction and Legal Partnership Agreements: How Current Partnership Laws and the Rules of Professional Conduct Fail to Account for the Epidemic of Addiction in the Legal Profession

• Author: Melinda C. Church
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., The George Washington University (May 2018)
• Pages: 843-859

The Ethics of Addiction and Legal Partnership

Agreements: How Current Partnership Laws and

the Rules of Professional Conduct Fail to Account for

the Epidemic of Addiction in the Legal Profession

MELINDA C. CHURCH*

“There is no . . . protection of the public without treatment and recovery for

the impaired lawyer. Promises do not and cannot suffice. Alcoholics and

addicts compulsively deny and deceive, not because they are bad people, but

because they are sick people.”

1

INTRODUCTION

In Lawlis v. Kightlinger & Gray, the plaintiff, a senior partner at his Indiana

law firm, was expelled due to his struggle with substance abuse and an unfortu-

nate relapse into alcoholism.

2

He brought a wrongful dissolution suit against the

firm and the court decided against him, holding that the alcoholism created a ma-

terial, ethical, and reputational risk to the partnership. The court clarified:

Any condition which has the potential to adversely affect the good will or

favorable reputation of a law partnership is one which potentially involves the

partnership’s economic survival. Thus, if a partner’s propensity toward alcohol

has the potential to damage his firm’s good will or reputation for astuteness in

the practice of law, simple prudence dictates the exercise of corrective action

. . . since the survival of the partnership itself potentially is at stake.

3

The struggle of lawyers battling addiction is well documented by the American

Bar Association.

4

Alcoholism, or alcohol dependence, as defined by the

American Psychological Association, is a disease marked by a pattern of repeti-

tive, compulsive, and dependent alcohol use “despite significant behavioral,

physiological, and psychosocial problems . . . resulting in impaired control.”

5

* J.D., Georgetown University Law Center (expected May 2022); B.A., The George Washington University

(May 2018). © 2021, Melinda C. Church.

1. George Edward Bailly, Impairment, The Profession and Your Law Partner, 15 ME BAR J. 96, 100 (1999).

2. See Lawlis v. Kightlinger & Gray, 562 N.E.2d 435 (Ind. Ct. App. 1990).

3. Id. at 442.

4. James Gray Robinson, Lawyers, addiction and COVID-19: ’Changing the landscape for everyone,’ A.B.

A. J. (June 4, 2020), https://www.abajournal.com/voice/article/attorneys-addiction-and-covid19 [https://perma.

cc/ZM7Z-575C] see also Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health

Concerns Among American Attorneys, 10 J. ADDICTION MED. 46, 52 (2016).

5. Am. Psych. Ass’n, APA College Dictionary of Psychology 13 (1st ed. 2009).

843

“Addiction” refers to the “state of psychological or physical dependence” on

alcohol or other substances.

6

Addiction is diagnosed based on criteria that include

“tolerance, withdrawal, loss of control, and compulsive use of the substance.”

7

Finally, substance abuse refers to a pattern of use that is subsequently followed

by significant adverse consequences. Such consequences may be “social, occupa-

tional, legal, or interpersonal.”

8

Yet, despite these adverse consequences, the sub-

stance abuse persists.

9

For purposes of this Note, these three terms may be used

interchangeably, except that alcoholism refers only to alcohol use and substance

abuse and addiction may refer to a wide range of substance-induced impairment.

This Note will argue that the American Bar Association’s Model Rules of

Professional Conduct (“Model Rules”), along with both the statutory and com-

mon law of partnerships, fail to contemplate the epidemic of substance abuse and

alcoholism in the legal profession. It seems that the law has not yet caught up to

the contemporary understanding of addiction as a disease or medical condition,

rather than a conscious choice. A legal partnership agreement tends to provide for

the expulsion of a partner without notice and without cause, despite the general

proposition that copartners “owe to one another . . . the duty of the finest

loyalty.”

10

Furthermore, this Note argues that the Model Rules fail to provide par-

ticularized guidance on how law firms, and courts, should address lawyer incom-

petence resulting from addiction or substance abuse. In addition, this Note

addresses how the Model Rules as they stand disincentivize transparency, with

the threat of sanctions and other punitive measures, and deter the struggling attor-

ney from coming forward with his addiction. Together, these deficiencies reward

dishonesty and deception, fail to acknowledge the epidemic of addiction in the

legal profession, and ultimately harm the members of the public whom our pro-

fession seeks to serve.

I. BACKGROUND

A. LAWYERS AND ADDICTION

While many would consider white collar professionals to be society’s least vul-

nerable to addiction, the available data tells us otherwise.

11

A 2016 study found

that twenty-one to thirty-six percent of licensed attorneys qualify as problem

drinkers, while other studies have anticipated the number to be about one in

three.

12

Ironically, many scholars have noted that the same qualities that make a

6. Id. (emphasis added).

7. Id.

8. Id. at 412.

9. See id.

10. Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928); see also UNIF. P’SHIP ACT § 105(c)(5) (2001)

(explaining that a partnership agreement may not “alter or eliminate the duty of loyalty or the duty of care”

between copartners).

11. See Robinson, supra note 4.

12. See id.

844 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:843