In 2022, an audit revealed that a real estate lawyer in Vancouver, Canada had misappropriated over 8 million dollars of client funds. However, in 2024 the bar sanctioned the lawyer with only a seven-year ban on legal practice—rather than permanent disbarment—because the association reasoned that the lawyer’s gambling addiction had contributed to his illicit behavior. This scandal and its outcome place a spotlight once again on a decades-long debate regarding the degree to which lawyers suffering from an addictive disorder should receive leniency when sanctioned for professional misconduct.

When determining sanctions for an attorney suffering from addiction, two competing considerations must be balanced. On the one hand, addiction should be appreciated as an illness that often consumes the lawyer and their behavior. Too harsh an approach, the thinking goes, deprives the public of a talented attorney who could thrive when healthy, and punishes that same attorney for an illness that is largely out of their control. On the other hand, the self-regulating legal field must safeguard both legal clients and the legal profession itself from lawyers whose illnesses result in ineffective legal representation, illegal conduct, or unjust outcomes. Excessive leniency, in particular a lawyer’s continued ability to practice, contravenes this protective duty of the legal field by permitting an afflicted attorney to continue causing harm. 

The American Bar Association’s (ABA) Standards for Imposing Lawyer Sanctions (SILS) explicitly acknowledge both of these interests and the need to balance them. Nevertheless, courts and commentators, even when utilizing this shared SILS framework, disagree on the relative weight that should be given to each of these considerations and how that weight should differ based on the specific context of a given disciplinary case. The lack of a decided-upon “best” approach generally threatens the likelihood that justice is done, and the uncertainty it creates jeopardizes the legitimacy of the legal field and the faith it engenders in the public. It is true that some degree of variation in the application of the SILS is inevitable under the current regulatory structure of the legal practice in the United States. Decisions regarding the regulation of lawyers have generally been left up to state supreme courts and state bar associations, and while these state guidelines must comport with the Supremacy Clause, both the federal government and (at least implicitly) the ABA have ceded this authority to the states. While it could be argued that a national system of binding legal regulation would be preferable, that argument goes beyond the scope of this Note. Nevertheless, the ability for state supreme courts to unilaterally reassess the application of state legal regulation makes greater uniformity a realistic possibility.

This Note argues the failure to adequately acknowledge and interact with the medical and psychological roots of addiction are a shared, critical failing of all current approaches to lawyer discipline cases involving addiction. In other words, judicial balancing would be much more informed, and thus tend towards greater justice, if it more greatly emphasized medical evidence, testimony from medical or psychological professionals, and the scientific literature on addiction. Based on that assumption, this Note proposes that the SILS should be amended to explicitly direct courts, when faced with a lawyer discipline case in which the lawyer suffers from an addiction, to adopt a three-part framework to determine a fair penalty. First, the court should rely on medical records and expert testimony from a qualified psychiatrist or psychologist to establish that a lawyer suffers from an addiction recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Second, in order to determine whether an attorney’s addiction had a mitigative impact on their misconduct, the court should rely on medical evidence and testimony to identify which criteria of addiction a given attorney met under the DSM-5 as well as any literature demonstrating an addiction-behavior link not acknowledged in the DSM-5. Third, a court should determine if the misconduct was so severe that it outweighs any mitigative impact that the attorney’s addiction had on the misconduct.

Section I provides an overview of the realities of substance use and addiction in the legal field, then introduces the ABA’s SILS and Model Rules of Professional Conduct (Model Rules). Section II presents the various approaches that state courts have taken when considering the mitigative impact of addiction in lawyer discipline cases. This section also discusses the rationales and inconsistencies found in these approaches. Section III outlines the criteria under which various addictions can be established under the DSM-5 and the types of behavior that the DSM-5 explicitly connects to these types of addiction. Section IV articulates this Note’s recommendation of a three-step process for considering lawyer discipline cases involving a lawyer suffering from addiction, a process that would include a much greater reliance on medical evidence and testimony than has been demonstrated in previous lawyer discipline cases.

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