The ADA and Bar Examiners: Uphill Climb for Wannabe Attorneys may have just become less so

In a previous blog entry, I talked about how a person with an MH history desiring to be an attorney faces an uphill climb with respect to the State Bar’s character and fitness gauntlet that has to be run. In particular, I talked about a case from the Supreme Court of South Dakota that denied a person with MH a license to practice law in South Dakota despite having passed the bar and having obtained a license to practice law in another jurisdiction. Now, the Department of Justice has weighed in via a response to a letter from the Vermont Human Rights Commission inquiring about whether the questions contained in the typical request for preparation of a character report violate the ADA. The Department of Justice letter concludes that it does.

The questions at issue, which are found in the National Conference of Bar Examiners standard request for preparation of a character report, are:

25. Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?

26A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

26B. If your answer to question 26A is yes, are the limitations caused by your mental health condition or substance abuse problem reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program?

27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol with the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization, or licensing authority?

People who respond affirmatively to question 25 or 26 have to complete a form authorizing each of the treatment providers to provide information without limitation relating to mental illness, including copies of their records pertaining to advice, care, or treatment provided. They also have to complete a form describing the condition and treatment or monitoring program. Finally, they are required to furnish a thorough explanation.

The Department of Justice in their letter from Jocelyn Samuels, Acting Assistant Attorney General, to the Executive Director of the Vermont Human Rights Commission said that these questions are unnecessary, overbroad, and burdensome for applicants. The letter reasoned as follows:

1. Conduct related questions enable states to assess effectively and comprehensively an applicant’s fitness to practice law in response to conduct related questions can be taken into account by the State Bar. Numerous questions on the standard form seek information concerning an applicant’s conduct. For example, the questions go to whether a person has been the subject of charges, complaints, grievances, or other discipline related to professional conduct or complaints in an administrative forum. Other questions go to whether a person has been cited for, arrested for, charged with, or convicted of any violations of the law. Yet other questions go to whether a person has had adverse action taken against him or her by a college or university. Then there are questions going to whether a person has been terminated, laid-off, permitted to resign, or disciplined by an employer and whether the person has managed debt and credit responsibly. All of which go to in a nondiscriminatory manner whether an applicant is currently fit to practice law.

2. While states often use the National Conference of Bar Examiners character and fitness application as a tool for conducting character and fitness screenings, using a third party to gather that information does not insulate a public entity from complying with the ADA. Also, it is state offices that determine how to interpret the National Conference of Bar Examiner report, what actions to be taken based on that report, and how the information in that report is applicable to the applicant’s fitness to practice law. Thus, the State Bar licensing authorities have the obligation to comply with the ADA (a point that the South Dakota Supreme Court agrees with, though not necessarily as to what it means).

3. Questions as to conduct are one thing but questions as to status are quite another. That is, the applicant’s MH diagnosis and treatment history are being presumed to be questions appropriate for further investigation. As such, the inquiries are based upon mere speculation, stereotypes, or generalizations about people with disabilities and are prohibited by the ADA. Such questions screen out persons with disabilities in violation of the ADA and the implementing regulations.

4. The questions are not necessary to achieve the objectives of whether individuals applying for admission to the bar are fit to practice law because there are other effective nondiscriminatory methods for identifying unfit attorney applicants already covered in the standard request for preparation of a character report. In addition to not effectively identifying unfit attorney applicants, the questions also have an effect counterproductive to the objective of ensuring that license attorneys are fit to practice.

5. In addition to the numerous questions in the standard application for character and fitness that go to conduct, prospective attorneys are also required to provide at least six personal references as well as contact information for every employer and residence for the past 10 years. Between all of that, a comprehensive basis for determining an individual’s fitness to practice law exists and it is not necessary to resort to discrimination regarding a person’s mental health history. Also, follow-up questions are permitted if a state bar licensing authority determines that the response to the standard questions going to conduct do not provide enough information to determine whether the person possesses the character and fitness to practice law.

6. The best predictor for present and future mental fitness is past behavior and not diagnosis. Further, history of mental health diagnosis or treatment does not provide, according to the experts, any basis for predicting future misconduct. In fact, both Rhode Island and Virginia have agreed that attorney licensing question related to MH status of treatment are unnecessary because they have little if any predictive value.

7. Question 26A, which inquires into the possible effect of an applicant’s disability if untreated, focuses the question on the diagnosis and not the real effect of that diagnosis on his or her fitness to practice law. It also focuses on the hypothetical future and not on the applicant’s future ability to practice law. In essence, it assumes a worst-case scenario, which may never happen. Further, the question is intended to single out individuals with an MH condition or substance abuse problem because it assumes that a yes answer is related to those conditions. The Department of Justice did note that if the language, “if untreated could affect” were taken out, then the question becomes focused on conduct and would be permissible.

8. Question 27 also singles out MH diagnoses unnecessarily because numerous other questions in the standard report would get the bar to the same place. Therefore, question 27 is unnecessary.

9. The effect of the questions is likely to deter applicant from seeking diagnosis, counseling and/or treatment for mental health concerns since disclosure would make it extremely difficult for them to become members of the bar. That doesn’t make a lot of sense to the Department of Justice if the purpose is ensuring the fitness of licensed attorneys. In particular, the court referenced the case against the state of Virginia, Clark v. Virginia Board of Bar Examiners, where a law school counselor testified that many students with MH issues are deterred from seeking treatment for MH matters. Any questions that deter applicants from seeking mental health treatments rather than ensuring that licensed attorneys are fit to practice sends the message that a person with an MH history cannot come out if they want to be a licensed attorney. Such a message, according to the Department of Justice, has the perverse effect of preventing those who could benefit from treatment from attaining it while penalizing those who are better able to successfully practice law because they have acted responsibly in taking steps to manage their condition.

10. While investigation into conduct is permissible, a history of MH cannot be used as a screening device to determine whether further investigation is needed because that places additional burdens on applicants with disabilities that are not placed on applicants without disabilities and as such violates the ADA.

11. MH diagnoses cannot be used as the basis of restrictions or conditions on applicant’s license to practice law because of that diagnosis. (Full disclosure here. I am the president of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Center For Mental Health Law to the Department of Justice saying that this practice, which is happening in Louisiana, violates the ADA). That is, a person qualified to be admitted to the bar as an attorney cannot be relegated to a separate admission status solely on the basis of the MH diagnosis unless conduct indicates otherwise. However, if such conduct indicates otherwise, then separate admission status is permissible providing it is justified by objective evidence of the applicant’s conduct and not based upon generalization or stereotypes because of the applicant’s MH diagnosis.

12. MH information can be requested only in the situation where an applicant’s mental health condition currently affects his or her fitness to practice law. Also, the bar licensing authorities do have the option to request voluntary disclosure of disability related information as a mitigating factor in the admission process if the bar licensing authority intends to recommend denial or restriction of admission because of conduct. It is in those situations that the Department of Justice believes an applicant should be provided with a voluntary opportunity to present disability related information explaining the conduct.

13. With respect to 12, such request by the bar licensing authorities has to be limited and narrowly tailored to assess the impact of the condition that was voluntarily disclosed on the applicant’s current fitness to practice law application, and any health-related information or records has to be kept strictly confidential. The Department of Justice views the confidentiality piece as being particularly important because if there is a lack of confidentiality, additional burdens are placed on the applicants in violation of the ADA. It also may violate an applicant’s liberty interest. Finally, exposing the information prevents individuals with disabilities from pursuing the legal profession, seeking treatment, and also reduces employment opportunities by allowing prospective employers to find out information about the disability which they would not be otherwise entitled to have.

Takeaways:

1. I don’t know what the timeframe is for reconsidering a decision of the South Dakota Supreme Court, but it seems that this particular individual, if it is not too late, would want to see if he could not get the Department of Justice involved in light of this letter. The problem this particular applicant would have is that the South Dakota Supreme Court had many issues before it pertaining to the applicant’s conduct and it wasn’t simply a matter of an MH diagnosis. That said, there are aspects of the decision that would be considered problematic in light of the Department of Justice letter.

2. It will be interesting to see whether state bars push back against the Department of Justice. After all, it is the courts that are going to have the final say. The stigma associated with MH being what it is, it is unclear just how the courts would react. As the South Dakota Supreme Court mentions in their decision, the way the ADA is structured, where a person has to be a person with a disability as well as a qualified individual, that could give the state bars considerable latitude in their investigation. Where that latitude turns into discrimination, may be a point that some state bars choose to determine in the courts. Finally, there are decisions out there that allow state licensing authorities for attorneys to inquire into an applicant’s mental health diagnosis, but the Department of Justice believes that those decisions are wrongly decided and are inconsistent with the ADA. That said, state bars may disagree with that premise and attempt to rely on those decisions upholding the questions. The final answer will have to be worked out in the courts.

3. The letter is certainly a victory for persons with MH as it shows where the Department of Justice stands on the matter and is a wake-up call to state bars so that they now know there are additional risk to some of their ongoing practices.

4. As a preventive manner, a bar licensing authority is probably better off if it wants to prevent litigation eliminating the MH questions mentioned above and ensuring that any investigation is narrowly focused on conduct going to whether the person can practice law. Alternatively, if a state bar licensing authority wanted to rely on the decisions allowing these questions, which probably means expensive litigation via taking on the Department of Justice at some point, then any investigation as a result of these questions being answered should be extremely narrowly tailored to finding out how the condition affects current fitness to practice law. Any investigation going beyond that would be extremely problematic.

5. I look for a lot of litigation going forward in the area of persons with MH trying to get admitted to state bars and to being able to practice law without restrictions.

6. Other licensing bodies for other professions are going to want to read this letter to see if their practices, particularly if they are inquiring as to MH history, are exposing them to ADA liability.

Finally, as my disclaimer to my site says, the opinions expressed here are my own and not necessarily representative of any organization that I am a part of.

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