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Ethics: The ethics of drug use

Every Issue

Cite as: (2007) 81(7) LIJ, p. 86


Prevention is better than cure if the profession as a whole is to tackle the drugs issue.

It’s no surprise to some that drug use among lawyers is gaining publicity.[1]

Although there is no empirical evidence of the extent of substance abuse among practitioners, suggestions of a problem are not “over the top”.

Professional leaders’ denial of generalised use among lawyers may or may not be correct, but such comments are unhelpful.

Much as the AFL Commission is seen to be soft on drug use among its players in its current “Three strikes” policy,[2] mere denial risks a public perception of drug tolerance among practitioners.

Something more than heads-in-the-sand is needed. Current drug incidence may not be high, but use does not need to be pervasive to point to the deeper ethical challenge emerging for the profession.

One of the non-issues is whether drug taking is “recreational or work induced?”. The unsubtle suggestion in this distinction is that recreational use is acceptable.

Legal ethics author Ysaiah Ross thinks it might be more serious if it’s work induced: that highly pressured advocates and negotiators are using drugs in order to gain a competitive advantage in adversarial situations.[3]

He may be correct as to such a cause, but does it matter for present purposes? No, because even if drug use is regarded by the user as exclusively recreational, such use will tend to blur into work environments over time.[4]

We all know of colleagues who drink too much too often. There are many examples of lawyers’ alcohol abuse, yet professional tolerance is again the time-honoured response.

We aid and support that inertia by declining to report, because many of us have had that exact problem or something similar at stressful periods in life.

Yet the damage that can be done by drug use to the general reputation of the profession is growing, regardless of the actual levels of use. Unlike alcohol, the popular powdered drugs are trafficked. Criminality is inescapable.

In this climate, there is a real risk that our profession will be seen as a reluctant enforcer of professional conduct, even though the cases are clear[5] and misconduct prosecutions are no longer our actual responsibility.

Mr Ross has called for random drug tests and annual mandatory medical check ups as a mixed detection-prevention response.[6] But why is the use of drugs (or even alcohol) alone seen to be at the root of all the evil? Is not substance abuse evidence of ethical deterioration at a far more fundamental level? Have we not in recent years seen the consequences of general ethical dysfunction?[7] And yet the calls for a preventative approach to those disasters fell on relatively deaf ears within government.

The mechanism for prevention exists, at least in a nascent form.

The Legal Profession Act 2004 (Vic) (the Act) Parts 2.4-5 allow the Legal Services Board (LSB) to require health assessments and “suitability reports” for practitioners when there are “reasonable grounds”[8] as pre-conditions for renewal of practising certificates, but the effective requirement for some sort of an informant remains.

It is time for general, systematic ethical suitability reports to be introduced if ethical function (including the issue of substance abuse) is to be improved.

Cost considerations will almost certainly prevent wholesale introduction of such assessments on an annual basis, but random testing by the LSB, much as the continuing professional development audit regime now provides in that arena, is practical and achievable.

A reasonable deterrent effect would be achieved for a reasonable cost.

Calls for such a preventative regime, which methodically works its way through all practitioners, are becoming more common.

In the US, there have been calls for conditionally-renewable licences to practise.[9]

In the UK, UK Centre for Legal Education director Julian Webb and his colleagues have concluded that the best way to assess an individual lawyer’s sense of ethical complexity and sophistication is by peer-conducted interview.[10]

My own research on this issue suggests that experienced Melbourne practitioners are surprisingly open to the prospect of such initiatives because they can see that proactive and not just responsive regulation is needed if professional functionality is to be sustained.[11]

In the short term, it is up to the LSB to show leadership and seek amendments to the Act to enable ethics enhancement as a practical strategy in reducing public scandal.

Drug use is bad news, but its real importance for the profession is the pointer it provides to a general ethical malaise.


ADRIAN EVANS is associate professor in law and convenor of Legal Practice Programs at Monash University.


[1] Ysaiah Ross, “Drugs a growing problem among lawyers”, The Australian, 18 May 2007, p24.

[2] Darren Lunny, “Top QC slams AFL drug policy”, 14 May 2007, Ninemsn at news.ninemsn.com.au/article.aspx?id=267070, accessed at 23 May 2007.

[3] Note 1 above.

[4] Andrew Fraser’s case is a relatively recent example. See note 1 above.

[5] See for example Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320.

[6] Ross, note 1 above.

[7] See for example the cases of White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; McCabe v British American Tobacco Services Australia Ltd [2002] VSC 73; James Hardie Industries (A succinct history of the James Hardie affair, up until the appointment of David Jackson QC to investigate the matter, may be viewed in the Australian Parliamentary Library at http://www.aph.gov.au/library/pubs/rn/2004-05/05rn12.htm – accessed at 15 June 2007).

[8] See for example Legal Profession Act 2004 (Vic) s2.5.4.

[9] See for example Jayne W Barnard, “Renewable Bar admissions: a template for making ‘professionalism’ real” (2001) 25 Journal of the Legal Profession, 1-73; Roy Stuckey, “The evolution of legal education in the United States and the United Kingdom: how one system became more faculty-oriented while the other became more consumer-oriented” 6 International Journal of Clinical Legal Education 101-148; Steven K Berenson, “Is it time for lawyer profiles?” (2001) 70 Fordham Law Review 645-690.

[10] J Webb and M Maugham with W Purcell, “Review of the training contract and work-based learning”, (2004) 64-5, available at http://www.lawssoc.org.uk

[11] Publication of this research is forthcoming.

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