I’m going to be off next week, and so I thought I would blog on this one since it is something I have talked about before.
Previously, I blogged on a South Dakota Supreme Court case and talked about the difficulty a person with MH has in passing the character and fitness gauntlet. I also in a separate entry blogged about a letter from the Department of Justice to the Vermont Commission on Human Rights talking about how four questions that are routinely asked by attorney licensing authorities, who often use the character and fitness format of the national conference of bar examiners, are in violation of the ADA. Now comes this letter from the DOJ to the State of Louisiana telling them that their discriminatory practices have to end.
Full disclosure: I Am President of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Mental Health Center asking the DOJ to take the position that the way the state of Louisiana treated attorneys and prospective attorneys with MH violated the ADA.
In particular, the Department of Justice found that the Louisiana attorney licensure system discriminated against bar applicants with disabilities in the following way: making discriminatory inquiries regarding bar applicant’s mental health diagnosis and treatment; subjecting bar applicant to burdensome supplemental investigation triggered by their mental health status or treatment as revealed during the character and fitness screening process; making discriminatory admissions recommendation based on stereotypes of persons with disabilities rather than upon the actual facts; imposing additional financial burdens on people with disabilities; failing to provide adequate confidentiality protections during the admission process; and implementing burdensome, intrusive, and unnecessary conditions on bar admission based on the individual’s mental health diagnosis or treatment.
The first part of the letter talks about those questions on the character and fitness exam that we talked about in our previous blog involving DOJ’s response to the Vermont Commission on Human Rights. The reader is referred to that particular blog entry discussing why those questions are in violation of the ADA.
However, the state of Louisiana went much further. In particular:
1) Oftentimes, the only justification given by the admission committee for further investigation when a mental health diagnosis or treatment was disclosed was the applicant’s diagnosis rather than any problematic conduct by the applicant. In fact, the DOJ had a smoking gun from five applicants where the admissions committee told them that further inquiry was necessary given the nature of their diagnosis;
2) upon receiving a disclosure of an MH diagnosis, it was not unusual for the admissions committee to insist on an independent medical examination complete with extensive records, all at the applicant’s expense;
3) the admissions committee frequently recommended conditional admission in the event of an MH history even where there was no evidence of conduct suggesting that conditional admission was warranted and even where medical evidence and/or successful years in practice in another jurisdiction were to the contrary. In fact, the state of Louisiana would treat people with substantial misconduct more favorably than people with a history of MH when it came to getting admitted to the bar.
4) the conditional admission was a standard set up and not based upon the facts of the individual applicant. That standard set up often was a longer term of duration than for those who had engaged in serious financial, criminal, or other misconduct.
5) the conditional admission process and the documentation supporting the conditional admission process was public information. Accordingly, private information about applicants who happened to have MH was fully available to the public.
6) the monitoring agreement that went along with the conditional admission was referred to as a probation agreement and the person doing the monitoring was referred to as a probation monitor creating the inference that the applicant had committed misconduct.
7) the standard agreement required certain medical monitoring regardless of whether the facts justified that.
The Department of Justice was not happy with these practices. In particular, they found:
1) the decision to request medical records appeared to be based purely on diagnosis rather than on conduct. Such a decision ignored the admissions committee own statutory mandate that required it to evaluate an applicant’s conduct. It also, since conduct was not an issue, engaged in impermissible stereotyping, which is prohibited by the ADA.
2) the investigations based solely on the diagnosis of MH also violated the ADA because it imposes unnecessary burdens on applicants with disabilities that were not imposed on others. In particular, MH treatment very often involves a discussion of intensely personal issues not related to the practice of law and yet the admissions committee wanted to see all of that in their deliberations. In other words, Louisiana applicants with disabilities, and particularly those with MH issues, are required to disclose information that is highly personal and potentially embarrassing simply because they reveal that they were a person with MH. In essence, what the admissions committee is doing, according to the Department of Justice, is requiring an additional investigation solely because of an applicant’s disability, which violates the ADA.
3) it violates the ADA when the admissions committee recommended conditional admission for applicants where there is no evidence of conduct that warrants such a decision, but is instead based upon a person’s MH diagnosis. The DOJ cited to one case where besides the MH diagnoses, the only negative response concerned a traffic ticket and falling behind on credit card payments. This particular person had been practicing law without incident in another jurisdiction for six years. Such a decision is one based on stereotypes about people with MH diagnosis and violates the ADA. Any such decisions has to be based upon an applicant’s record of conduct and not their MH history.
4) attorneys who were conditionally admitted based upon their MH diagnoses had much more difficulty finding employment, had to share information about their MH diagnoses with employers, were treated differently because their employers and colleagues were aware of their MH status, had to disclose client files and be distracted from the work by inflexible monitoring requests. Also, since the monitoring is so intrusive regardless of whether the actual facts demand it, attorneys with MH have been less than candid with their psychiatrist or have refrained from considering a full range of treatment options. They also have been forced into making career decisions based on their conditional admission status and monitoring requirements rather than on talents and interests.
5) the ADA requires if you are going to conditionally admit someone because of their disability, that an individual analysis be performed and the state of Louisiana did not do that.
6) title II of the ADA, DOJ cited to an appendix here, prohibits imposing additional burdens on persons with disabilities not imposed on others. The state of Louisiana was violating that as well because they required an applicant with an MH history to pay the cost of any independent medical examination required by the committee. Further, once the monitoring agreement is in place, all costs associated with the monitoring agreement has to be paid for by the applicant. In essence, what the state of Louisiana was doing here is that they were passing along the cost of any reasonable modifications along to the bar applicant in violation of the implementing regulations.
7) the public nature of the conditional admission forces a conditionally admitted attorney to disclose a disability to employers and colleagues in order to avoid a presumption that they were conditionally admitted because of criminal history, financial delinquency, or other misconduct. That potentially violates a liberty interest that the individual has in such information (as an aside, I note that employers under title I of the ADA are required to keep disability related information confidential and apart from personnel files). Further, publicizing an applicant’s medical information has disastrous effects. In particular, it enables prospective employers, clients, or opposing counsel to act on stereotyped notions about individuals with MH. It also creates a chilling effect by deterring individuals from pursuing the legal profession and/or seeking treatment, reduces employment opportunities available to lawyers with disabilities by allowing the prospective employers to access information about the disability to which employers would not otherwise be entitled.
DOJ after all this then threw down the hammer insisting that the state of Louisiana cleanup their act so to speak. In particular:
1) Louisiana needs to stop using the character and fitness questions that go to a person’s MH diagnoses;
2) Louisiana needs to focus on applicant conduct and not on their MH diagnosis or treatment for such diagnoses when considering their fitness to practice law;
3) a person’s MH history cannot be used as the basis for determining whether further investigation is warranted. Conduct is the key not diagnoses;
4) conditional admission should be based upon conduct and not based upon stereotypes;
5) conditions of admission must be individually tailored to address the specific situation;
6) Louisiana has to stop imposing additional burdens on applicants with MH, including impermissible costs;
7) Pending applications must be evaluated without consideration of any affirmative responses to the prohibited questions asking about MH history in the national conference of bar examiner report;
8) require Louisiana to go back in time and fix any problems. For example, Louisiana has to take immediate steps to terminate the conditional bar admissions unless there are conduct concerns not mitigated by the applicant’s voluntary disclosure of information related to MH diagnosis and treatment;
9) for individuals whose conditional admissions are terminated, the state of Louisiana has to expunge all documents and records relating to the conditional admission and ensure that any references to the conditional admission are not publicly available;
10) any conditional admissions that are currently in place for nondiscriminatory reason must be reevaluated to ensure that the conditional admissions are tailored to address only the conduct warranting conditional admission and ensure that any and all medical or health-related information is kept strictly confidential;
11) with respect to applicants denied admission as a result of disclosing MH diagnoses pursuant to the prohibited questions, the state of Louisiana has to reevaluate their original applications without consideration of their affirmative responses; invite qualified individual to update their application for admission to the Louisiana bar without additional expense; reevaluate and process the updated applications on a priority basis without considering the MH diagnoses or treatment for that diagnoses;
12) for those applicants who withdrew from the admission process because of their response to the prohibited questions, the state of Louisiana needs to inform those individuals of the revisions with respect to character and fitness and invite them to reapply for admission to the Louisiana bar without additional expense. Also, they need to consider their application without considering their MH diagnoses or treatment and focus only on conduct.
13) PAY COMPENSATORY DAMAGES TO INDIVIDUALS WITH MH SUBJECTED TO DISCRIMINATION DURING THE BAR ADMISSION PROCESS
14) provide to the United States following each admission ceremony for the next five years information regarding Louisiana’s ongoing efforts to comply with title II consistent with the DOJ letter of findings.
One word WOW!
1) That said, it is now very clear that states engaged in similar conduct to Louisiana may want to seriously reconsider how they go about their business. The Department of Justice in this letter makes it very clear that they will bring the full weight of the Department of Justice down on attorney licensing authorities engaged in discrimination in violation of the ADA.
2) it may not be so easy for licensing authorities to rely on otherwise qualified/qualified, which the South Dakota Supreme Court did, as a vehicle to undertake a freewheeling investigation of an applicant’s MH history in light of this letter to Louisiana. That said, if I were representing the licensing authorities and wanted to have more freedom with respect to MH investigations, it is certainly the otherwise qualified angle that I would rely on.
3) any entity that licenses professionals needs to read this letter to see how their practices comport with this letter.
4) notice that the Department of Justice is insisting on compensatory damages for bar applicant that were discriminated on the basis of their disability by the state of Louisiana.
5) Clearly the letter is a huge victory for applicants with MH seeking to become attorneys.
Finally, the views contained herein are my own and do not necessarily represent those of any organization that I am affiliated with or am a part of or of any clients that I may represent.