THE ALCOHOLIC CLIENT AND THE ALCOHOLIC LAWYER
by Jonathan Goodliffe, Solicitor
Alcohol problems regularly feature in the practice of many lawyers. A high proportion of crime is alcohol related. Much domestic violence arises from alcohol problems and the issue of addiction often features in child custody and contact litigation. Alcohol is often an issue in unfair dismissal1 and personal injury claims2 and in many other legal contexts.
Quite apart from the law, taking instructions from addicted clients raises serious problems: their recollection will often be unreliable, or they may actively mislead their lawyer. They may expect their lawyer to do the opposite of what is in their interests.
Lawyers themselves may become addicted to alcohol3. They may do serious damage to, or even destroy, their careers, as well as causing problems for their colleagues and the profession as a whole.
Yet there is a considerable degree of ignorance within the profession on this subject. When alcohol arises as an issue in civil litigation it is usually regarded as incidental to a legal problem rather than central to it.
Alcohol addiction is a legal subject in its own right. Every lawyer, if only for his or her own protection, needs to have a basic understanding of it.
Classification of alcohol problems
The International Classification of Diseases and the Diagnostical and Statistical Manual4 distinguish between alcohol misuse and alcohol dependence. The distinction is inherent in our thinking.
If someone takes out a policy of life assurance, she5 would not be expected, in pursuance of her duty of the greatest good faith, to disclose that from time to time she has too much to drink. The position would be otherwise, however, if she has a major problem and drinks compulsively6.
Similarly the case law of the Employment Appeal Tribunal shows that alcohol problems may be regarded either as a disciplinary matter or a medical one. In the latter event the employer is expected to follow a different procedure before dismissing the employee7.
The distinction between abuse and dependence also affects the advice which is given to the drinker. The higher the degree of dependence, the more likely it will be that the drinker will be advised to abstain completely. On the other hand, it may be sufficient in the case of a non dependent but irresponsible drinker, that he should be helped to understand the risks of his behaviour and to control his drinking.
Not all experts, however, accept the distinction between abuse and dependence. Some, for instance, talk only in terms of a "continuum of alcohol related problems". On this view (the "cognitive-behavioural theory"), alcohol abuse is regarded as a form of learned behaviour which can be unlearned without it being necessary to require the drinker to abstain completely. The word "alcoholic" applied to a person, as opposed to a beverage, may be regarded as politically incorrect8.
A view which is prevalent among medical general practitioners and psychiatrists who do not specialise in the treatment of alcohol problems, is that those problems are merely a symptom of another condition, such as depression, anxiety or stress ("the symptomatic theory"). Such doctors might rarely, if ever, apply a diagnosis of alcohol dependence to their patients9. The contrary view, on the other hand, more likely to be accepted by disease concept adherents, is that the depression is caused by the drinking10.
Clearly, when choosing an expert in litigation which is alcohol related, or taking advice on alcohol problems within a law firm, it is important for a lawyer to know where the expert stands within this range of opinion. Under the Disability Discrimination Act 1995, for instance, alcoholism cannot be a disability but depression may be. The case law of the Employment Appeal Tribunal suggests that a drinking problem is more likely to be regarded as a medical issue for unfair dismissal purposes if it is part of a "deeper medical problem"11. This suggests that in employment cases a lawyer representing the employee might prefer to instruct an expert who adheres to the symptomatic theory. Such a course might be less appropriate, however, for a lawyer representing a mother who was determined not to allow the father contact with the children unless he stopped drinking.
The disease concept of alcoholism
Some people regard severe alcohol dependence, or alcoholism, as an illness12. This is, in particular, the position of Alcoholics Anonymous13, a world wide self help organisation which has had considerable success in helping its members achieve sobriety through a programme of twelve steps. AA regards alcoholism as an incurable illness because the alcoholic in recovery can never drink again. An alternative view, however, might be to regard it as an illness the cure for which is lifelong abstinence.
The disease concept of alcoholism is more popular in the USA, where AA originated, than it is in Great Britain. Scientifically it currently has less support than it used to have. It is perhaps better treated as an ideology or a policy issue. It may be beneficial to encourage the alcoholic to regard himself as suffering from a disease, to help him to take the problem seriously and to accept medical and other advice. The German Supreme Court has accepted the disease concept of alcoholism. This does not necessarily support a particular scientific viewpoint, but justifies devoting the same resources to helping alcoholics as are available for the treatment of other "diseases".
Symptoms of alcoholism
When people get addicted to alcohol their ability to cope with all aspects of life progressively diminishes. This applies as much to the capacity of a lawyer to concentrate on a legal problem and find positive solutions as it does to a motorists ability to avoid a serious accident. Experiencing emotions and communicating effectively with other people becomes a problem. This often leads to isolation, conflict and aggressive or harassing behaviour.
The alcoholics general health is often affected. Many medical conditions may be alcohol related. The alcoholic loses mental and physical energy and may become seriously depressed - alcohol is a depressive drug. He may start to look unwell and neglect personal hygiene. His drinking may affect his sexual function, leading to impotence, promiscuity, sexual harassment of work colleagues and problems with his sexual partner14.
The alcoholics denial
In order to justify his behaviour the alcoholic has to pretend to herself and others that her drinking is not a problem. She maintains that she has it under control and that she can give it up if she wants to. She blames the consequences of her drinking on everything and everyone except her own addiction. If she gets drunk at work she will say that she was drinking no more than everyone else. If she gets involved in a pub brawl someone else started it. If she is a solicitor who has committed an act of negligence, it was the fault of Counsel or her assistant.
The alcoholics denial also prevents her from accepting that there is any possibility of change. She will either refuse medical advice or ignore it, or mislead her doctor by lying about her drinking. If she is a solicitor she may refuse to go to AA because of the risk of meeting clients there.
Her denial may be supported by episodes of memory loss or alcoholic "blackouts". She may wake up in a police cell with blood on her clothes having committed a murder of which she has no memory, or if she is a solicitor she may make the same telephone call twice on a conveyancing transaction: once during a drinking session and again while suffering from a hangover. Chronic alcoholism may also lead to long term memory loss - Korsakoffs syndrome.
Other peoples denial
Other people connive in the alcoholics denial and his manipulation of their emotions and perceptions. Colleagues at work may cover up for him and may refuse to believe that he has a problem that can only get worse if it is ignored and if the alcoholic is protected from the natural consequences of his behaviour. Loyalty on the part of his spouse and family may have the same effect.
Society as a whole also connives in the denial. Alcoholism is a "conversation stopper". Many doctors have received no or hardly any education on the subject and cannot recognise it in anything other than its most obvious manifestation15 or distinguish it from clinical depression or stress. Lawyers are generally even more ignorant. You will find no reference to alcoholism in the indices to leading textbooks such as Rayden on Divorce or Harvey on Industrial Relations. Interesting judgments of the High Court or Court of Appeal in which it arises are usually not reported.
Solicitors have only recently started addressing the problem of alcoholism within their profession. The Bar and the judiciary have yet to reach this stage. A recent survey of expert witnesses included an account by one expert of his appearance before a judge who was drunk. The Master of the Rolls, Lord Woolf, reacted to this by asking experts to reject the evidence of their own eyes16. The higher up the social scale one goes, the stronger the denial may become and the more senior a professional becomes the more difficult it may be for him to change long seated attitudes.
The alcoholic client
The alcoholics denial makes her a particularly unreliable client. She may have no memory of crucial events or may remember them only through an alcoholic haze. This will not prevent her from reconstructing them the way she thinks they ought to have happened. She will sincerely believe in her own fabrications and will often, therefore, be able to persuade a normally sceptical lawyer to put forward the most improbable case. Communication problems with alcoholic clients create particularly important risk management implications in the field of civil litigation and the handling of conveyancing and financial transactions, where very much higher standards are expected of lawyers than was the case 10 years ago.
In Kelly v London Transport Executive  1 WLR 1055, the plaintiff was employed by the defendants. One day at work he bumped his head. He was given first aid and returned to work. A few months later he gave up work and complained to his doctor of depression, eye trouble and bad hearing which he alleged arose from the accident at work. He obtained legal aid and sued the Defendants. His solicitors obtained a total of 19 medical reports on him. He declined to accept a payment into court of £750 or a subsequent offer of £4,000. Initially the only report disclosed to the Defendants was one which had been altered to remove an unfavourable reference.
The remaining reports were not disclosed to the Defendant until a few days before the trial, at which the Judge awarded the Plaintiff £75 damages on the basis that the various ailments of which he complained arose from his chronic alcoholism and not from the accident. The plaintiff's solicitors were ordered to show cause why they should not have a wasted costs order made against them17.
The instructions of an alcoholic are particularly unreliable on any issue which is central to her addiction and therefore threatens the root of her denial. In R v Tandy  1 WLR 350 the defendant strangled her 11 year old daughter while in blackout. The doctor who subsequently examined the defendant estimated that at the relevant time her alcohol level would have been 400 mgs per 100 mls of blood. The statement which she made thereafter (presumably when she was suffering from remorse and the effects of sudden enforced abstinence) blamed the act on the fact that she had been drinking vodka rather than her usual barley wine.
Thus, rather than asserting her alcoholism - which implies a compulsion to drink - she in effect denied it and thus made her behaviour seem worse, rather than mitigating it. The question whether alcoholism is a disease and whether, therefore, she could plead diminished responsibility, was debated in the course of the medical evidence, but in the light of her statement (the contents of which must have been dictated more by delusion than by coherent recollection) that question did not arise for decision. Her claim that she had deliberately drunk the vodka resulted in her conviction of murder18.
Other examples often arise of the alcoholic client asking her lawyer to do the opposite of what is in her interests. An employee dismissed for drunkenness may ask her lawyer to deny that she had any drink problem when a more successful tactic would be to challenge the dismissal on the grounds that the employer should have realised that the employee had a medical condition and should have applied its own health policy. Equally a father seeking contact with his children will often deny allegations of drinking or drug taking when he would be better advised to admit them and prove to the court and the mother what he is doing about it19.
Conflicts of interest
There is a danger of conflicts of interest arising when a solicitor is instructed on behalf of an alcoholic and some other person, whether it be the alcoholics spouse, business partner or a prospective mortgagee or a corporate client whose employee is giving the solicitor instructions. The other person is unlikely to share the alcoholics instinct for self-destruction.
In Hines v Willans, 28th February 1997, a solicitor acted for an alcoholic and his wife in a series of transactions. The alcoholic kept changing his instructions to the solicitor after drinking bouts. On one of these occasions he insisted on changing his will to disinherit his wife. After his subsequent suicide his wife sued the solicitor on the basis that he had a continuing duty to her. She recovered the amount she had had to pay the beneficiaries under the will to abandon their rights.
Similar conflicts of interest may arise where a client arrives at the solicitors office smelling of alcohol. Is this something that should be reported to the mortgagee if the solicitor is acting for both parties in a financing transaction? If the client is legally aided and it is part of his case that he does not have a drink problem, should it be reported to the Legal Aid Board? If there is a conditional fee agreement, might heavy drinking which interferes with the solicitor/client relationship be grounds for treating the client as being in repudiatory breach of the agreement?
The Alcoholic lawyer
Lawyers are as likely as anyone else to become addicted. Their addiction creates serious risk management implications, bearing in mind their responsibilities towards their clients and their colleagues. The behaviour of an alcoholic lawyer can make life at work a misery for his colleagues.
The education and intelligence of the average lawyer may, in the right circumstances, provide him with some of the resources he will need to recover from his addiction. On the negative side the same assets can also help him to rationalise his behaviour and blame everyone else for the consequences20.
Yet all too often the colleagues of the alcoholic cannot face up to the fact of his addiction until serious damage has been done to his career, the welfare of his family, and the clients, reputation and finances of the practice.
Helping the alcoholic
How should one advise and represent an alcoholic client? The task is especially difficult in the context of civil proceedings and financial transactions, where societys expectation of lawyers is particularly high. Where a client is intent on self-destruction, a lawyer who tries too hard to help may simply find himself supporting the clients addiction and putting his own head on the chopping block, like the plaintiffs solicitors in Kelly v London Transport Executive.
However, in most cases the correct diagnosis and treatment of the clients condition will provide the key to the solution of his legal problems. Even where it does not, it will at least open up communication between lawyer and client in a way which would otherwise not be possible. Lawyers are often in a much better position than other professionals to persuade their clients to face up to the consequences of their addiction and do something about it21. If, for instance, a father wants contact with his children badly enough and he is advised that he has to show that he is sober, the support that he gets from his lawyer and the standard of evidence of his sobriety required by the court, if it is sufficiently rigorous, can help to turn him into a responsible father. Equally there is little point in the dismissed employee attacking his former employers for not applying their health policy if he has not accepted his own responsibility for recovering from his alcoholism. Doctors are often not able to offer their patients an equivalent "pay-off" for sobriety. Probation officers and expert witnesses cannot offer the same assurance of confidentiality to a client that lawyers can22.
Acting for an alcoholic client who is desperate enough to accept help can be rewarding. Alcoholics do not recover from their condiction by will power alone. They need support. This can come from lawyers as well as other professionals23.
On the other hand, where the alcoholic client insists on continuing to drink, her lawyer is entitled to concentrate on her own protection and may sometimes be justified either in treating her retainer as repudiated or in regarding her client as incapable of giving her instructions. The capacity of an alcoholic to instruct a lawyer should in principle depend on the context. What may be enough capacity in the context of the defence of a criminal charge may not suffice in connection with the conduct of complex litigation under the Civil Procedure Rules24 or the negotiation of a financial transaction. Where the alcoholic cannot give instructions it may be appropriate for a "litigation friend" to be appointed.
Dealing with alcoholic clients requires some basic familiarity with the subject. The subject is as much alcoholism itself as employment, family, criminal or road traffic law and needs to be understood, in the same way as the lawyer specialising in personal injury claims must have a basic understanding of orthopaedic concepts and the commercial lawyer must understand the reality of business dealings. This lesson has been learned in North America where training on substance abuse has been made compulsory by many State Bars, and by those mental hospitals in the UK which have established legal advice centres in their premises.
The same knowledge is equally important when representing those who are affected by the behaviour of the drinker, for instance, spouses, children, employers, patients, clients and victims. There is considerable scope for using the fact of the opposite party's addiction in the statements of case or in cross-examination. In practice this is rarely done.
The skills originally developed for client care will also help the lawyer to take a responsible attitude towards his own drinking, to recognise the problem in a colleague, to raise it at partnership level and either to devise solutions or to obtain professional advice at an appropriate time25.
Demystifying the subject
For this learning experience to develop its own momentum, alcohol and its associated problems need to be demystified within the legal profession and become the subject of intelligent discussion. The more acceptable it becomes to be a recovering alcoholic, the less acceptable it will be for alcoholics to continue to drink and the less acceptable it will be for lawyers to continue to turn a blind eye to the problem.
When a lawyer is in active alcoholism he is a liability to his profession. There are many such lawyers. There are, however, also many professional people who have recovered. Obviously they do not advertise the fact that they used to be drunks.
When a lawyer has a year or sos sobriety behind him he becomes an asset to his profession, since he will have had to understand and come to terms with his addiction. This will help him to penetrate the denial of other alcoholics, to communicate more effectively with clients who are still drinking and to recognise where the boundaries of his relationship with such a client should be drawn. Lawyers who do not have the advantage of being alcoholics in recovery can learn much by attending meetings of Alcoholics Anonymous26.
Know-how of this kind is also badly needed on the Bench. In theory an alcoholic who has made efforts towards recovery ought to be spared the severity of the sentence appropriate for the alcoholic who is still drinking. In theory family law procedures ought to encourage parents to come to terms with an addiction which interferes with their responsibilities.
In practice it often makes no real difference whether a criminal defendant or a civil litigant says that he is sober on the one hand, or proves that he is sober on the other. Moreover sometimes judges take a more severe line towards a person who admits to having once had a problem, than to someone who still has the problem and denies it. Lawyers and judges have much to learn here from expert witnesses who can help to turn the issue of the sobriety of a litigant, or of a lawyer facing disciplinary proceedings27, into a fully justiciable issue28. A litigant may be encouraged into a long term alteration of his drinking behaviour by the discipline of having to prove his sobriety.
Similar issues may arise in the management of a law practice, one of whose members has received treatment for alcoholism. How is the firm to know whether the alcoholic is recovering or has relapsed? Often the answer is to apply the same approach as would be appropriate in a forensic context29. Requiring an alcoholic to submit to random blood tests may be a very effective way of supporting his recovery.
What about you?
Enough about other peoples problems. What about you?
When you spend your time dealing with other peoples problems it is difficult to accept that they may affect you equally seriously and that you must sometimes focus on yourself. Do you drink in the office? Do you regularly drink heavily at lunchtime? Do you feel you drink too much and want to cut back but find you cannot? Do you have serious memory lapses? Do you encourage or tolerate heavy drinking during office hours by your staff?
Does everything seem to be going wrong for you? Is your marriage unhappy or on the rocks? Do you blame everything on your secretary or costs draftsman? Are your profits down and your clients always complaining and arguing over your bills? Are you losing most of your cases or trying to persuade your clients to settle them on unfavourable terms? Do you find you cannot concentrate properly? Do you keep making mistakes? Do you feel everything and everyone is against you? Do you feel you cannot take the pressure and wish you were in an easier profession or job?
You may think that one of your colleagues is the one to whom these questions should be addressed. If so you would be doing him no favour and would be putting your own practice and reputation in danger by ignoring his problem.
Perhaps, on the other hand, you may have said to yourself, "Yes, I did answer yes to some/most/all of those questions, but surely I do not have a problem with alcohol?". Was that a rational answer? Would you have analysed a clients problems in such a way?
If can admit you have a problem, if you are willing to accept help and stop drinking, then you will regain the strength to cope with your other problems, or you may even find that they will solve themselves. You may find that your profession can be as rewarding as you always hoped it would be.
You could be a better lawyer than you ever were.
Jonathan Goodliffe, Solicitor, Tel: 0208 870 1601, Fax: 0208 870 8338, E-mail: email@example.com
1 "The Drinking Employee", J Goodliffe, New Law Journal Charities Supplement, April 1991.http://dspace.dial.pipex.com/jgoodliffe/articles/employ1.htm
2 "Intoxication and Claimants in Negligence", B Harvey and J Marston, New Law Journal 2nd July 1999.
3 "Alcoholism in the Legal Profession" J Goodliffe and D Brooke, New Law Journal, January 1996,http://dspace.dial.pipex.com/jgoodliffe/articles/alcfam1.htm
4 "Substance-related problems in the context of international classificatory systems", T F Babor, in "The Nature of Alcohol Related Problems" 1992, ed M Lader and G Edwards.
5 Alcohol problems affect both sexes, so this paper uses the generic masculine and feminine interchangeably.
6 See "Alcohol as an issue in Insurance Claims", J Goodliffe, International Insurance Law Review, April 1996,http://dspace.dial.pipex.com/jgoodliffe/articles/insur1.htm .
7 Edgeley v Angus Council, 15th July 1999.
8 See for instance "Controlled Drinking" N Heather and I Robertson, 1983.
9 See "The Symptomatic Model" in "Managing Alcoholism", L Lindström, 1992.
10 See "Dangers of Psychotherapy in the Treatment of Alcoholism", G Vaillant in "Dynamic Approaches to the Understanding and Treatment of Addiction", ed M H Bean and N E Zinberg, 1981.
11 per Lord McDonald in Strathclyde Regional Council v Syme, 3rd August 1979.
12 "The Disease Concept of Alcoholism", E M Jellinek, 1960
13 PO Box No 1, Stonebow House, Stonebow, York YO1 2NJ, Te: 01904 644026.http://www.alcoholics-anonymous.org
14 See generally "The International Handbook of Addiction Behaviour" 1991, ed I B Glass.
15 Brooke, D, Edwards, G and Taylor, C, "Addiction as an Occupational Hazard: 144 doctors with drug and alcohol problems". British Journal of Addiction, 86, 1011.
16 Report in "The Independent", 13th November 1999. Lord Woolfs actual words were: "If you are being asked in a survey for an amusing incident, do make sure that it is one that is really justified. Because it is easy to refer to a judge being drunk when perhaps its not something which is right". How can the expert be sure that his impression is "really justified"? By waiting for the judge to start swigging from a bottle in the full view of the court?
17 Whether such an order was in fact made is not apparent from the report.
18 See "R v Tandy and the Concept of Alcoholism as a Disease", J Goodliffe, 53 MLR 809.
19 "Alcohol and the Family", J Goodliffe, New Law Journal, May 1995.http://dspace.dial.pipex.com/jgoodliffe/articles/alcfam1.htm
20 For a full description of the behaviour patterns of the alcoholic lawyer, see "Identifying the Alcoholic Lawyer", J Goodliffe, New Law Journal, 18th December 1998.http://dspace.dial.pipex.com/jgoodliffe/articles/ident1.htm
21 See for example "Community Care Assessments and Criminal Law", L Clements and A Rhead "Legal Action" July 1997.
22 "The Elephant in the Interview Room: Working with the Process of Denial in Chronic Drinkers", Andy Taylor, Probation Journal 1997.
24 In Irvani v Irvani, 9th December 1999, the Court of Appeal had to consider whether a person alleged to be a heroin addict had capacity to enter into an arbitration agreement and subsequently to appear in person before Colman J on an application relating to that agreement. The Court concluded on the facts that he had that capacity. However, a solicitor may reasonably be expected to know, or find out, more about his client than a judge may know about a litigant in person.
25 See "Helping the Alcoholic Lawyer", J Goodliffe,http://dspace.dial.pipex.com/jgoodliffe/articles/help1.htm , "Rehabilitating the Alcoholic Lawyer", B Pritchard, http://dspace.dial.pipex.com/jgoodliffe/articles/rehab.htm and contact SolCare generally - 01766 512222, http://www.solcare.org.uk/
26 Many AA meetings are "open" and one does not, therefore, have to be an alcoholic to attend.
27 Alcohol & Depression in Lawyer Disciplinary Proceedings, J Goodliffe, Addiction, September 1994.http://dspace.dial.pipex.com/jgoodliffe/articles/disc1.htm
28 "Alcohol Experts in Family Cases", J Goodliffe, New Law Journal 5th May 1995.http://dspace.dial.pipex.com/jgoodliffe/articles/alcfam1.htm
29 See footnote 25 above.