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Vol. 44, No. 3

A new look at character and fitness: Bar leaders, lawyers, others urge elimination of mental health questions

By Marilyn Cavicchia

Note: This article has been edited to include an update on removal of mental health questions from the New York state bar application.

Gray O’Dwyer, an assistant attorney general in Virginia working in environmental law, recalls when she and her law school classmates at University of Richmond first started to put their application packages together, in preparation for the July 2018 bar admission process.

“I remember being in the communal clinic space talking to other students about the bar application and saying, ‘Is it weird to anyone else that they want our mental health records?’” she says. Several of her friends spoke up, agreeing that the question about mental health that was then on the character and fitness questionnaire from the Virginia Board of Bar Examiners was not only “weird,” but also “terrifying and invasive.”

O’Dwyer was concerned that conversations she had with her mental health professional would be misunderstood and misconstrued when reported to the board of bar examiners, none of whom were medical professionals. In Virginia at that time, and in the states where this type of question is still included as part of character and fitness, law students are often told to disclose everything and that answering “yes” to a question about whether they have been diagnosed with or sought treatment for a mental health condition (typically within the past five years) will not necessarily count against them.

But with years of academic work at stake, and sometimes $100,000 or more invested toward a legal career, O’Dwyer says many law students take small comfort, if any, in the thought that they will have a chance to explain in more detail. Instead, she believes, many will choose not to seek treatment.

“We are taught in law school to control the controllables, manage the risk,” she explains. “If a student knows their every thought, confession, or struggle will have to be reported, they won’t seek treatment.”

In 2014, a study called the Survey of Law Student Well-Being (administered via an ABA grant and sponsored by several ABA entities as well as the Dave Nee Foundation) found that while 42 percent of respondents said they needed help in the past year with emotional and mental health problems, less than half of those respondents actually received counseling. Potential threat to bar admission was the fourth most cited reason for not seeking help, at 45 percent. The reasons cited more often were potential threat to job or academic status (48 percent), social stigma (47 percent), and financial reasons (also 47 percent).

As for O’Dwyer, she shared her fears not with mental health professionals or with law school professors and staff, but with her peers—which led to the realization that many of them had experienced tremendous challenges during law school, while believing that they alone were suffering.

It also led to a groundswell movement in which O’Dwyer, working with her school’s student bar association, launched a letter-writing campaign that was also joined by law students at University of Virginia. While it is unclear how directly it can be attributed to the campaign, the Virginia Board of Bar Examiners ultimately did eliminate its question about mental health, effective January 1, 2019. The timing meant that O'Dwyer herself was in the last cohort of bar applicants who had to answer this question and submit a form filled out by their physician or other care provider―which she says was "a frightening and frustrating part of that experience."

O’Dwyer, who received the 2019 Mental Health Advocate Champion of the Year Award from Mental Health America of Virginia, is gratified by the change she helped bring about but says there’s more work to be done in removing the stigma and fear that prevent many law students from seeking treatment.

Recent efforts and history

She’s not alone in this effort; across the country, law students, lawyers, law professors, and others are questioning both unintended consequences of mental health questions on character and fitness exams and also whether those questions are even useful in fulfilling their stated purpose of protecting the public. A recent post at a law-school related blog from the ABA summarizes movement in revising or eliminating these questions, in many cases toward a question that asks if the applicant has engaged in any conduct that may present a risk, rather than whether they have been diagnosed with and/or treated for a mental health condition.

According to that post, bar examining bodies in Arizona, Washington state, Illinois, Massachusetts, and Mississippi all eliminated mental health questions at some point prior to 2019; in California, a bill that took effect on January 1, 2020, prohibits state bar examiners from reviewing mental health records unless they are offered by the applicant; the Connecticut Bar Examining Committee voted unanimously in January 2019 to switch to a “conduct” question; and the Michigan Supreme Court is looking into similar changes. There has also been significant activity in New York state, which will be covered later in this article.

The most current data available from the ABA Commission on Disability Rights indicates that 39 states and the District of Columbia ask about the existence of a mental health condition or impairment; questions about treatment are asked by 32 states and D.C.; 32 states and D.C. ask questions regarding the assertion of a condition or impairment in disciplinary action or as a defense; and 18 states ask about the appointment of a conservator or court-appointed guardian for the applicant.

The states that are eliminating questions directly related to mental health, in favor of questions about conduct, are in line with recent resolutions by two national organizations. In August 2015, the ABA House of Delegates adopted Resolution 102, which urged licensing entities to remove questions about mental health history, diagnoses, and treatment, and to focus instead on conduct and behavior. In February 2019, the Conference of Chief Justices approved a substantially similar set of recommendations, Resolution 5.

Another prominent organization, the National Conference of Bar Examiners, notes that the mere fact of having sought treatment is not a basis for denying admission. 

“Bar admission authorities routinely certify for admission individuals who demonstrate personal responsibility and maturity in dealing with issues,” wrote Penelope Gessler, director of investigations at the NCBE, in a statement to Bar Leader. “The National Conference of Bar Examiners encourages applicants who may benefit from assistance to seek it.”

Gessler also stressed that while the NCBE works with bar admission authorities in many jurisdictions, ultimately, it is the bar admission authorities who make all decisions about admission, including what questions are included as part of character and fitness.

The disability rights perspective

Robert Dinerstein, a member of the ABA Commission on Disability Rights and a law professor and director of the Disability Rights Law Clinic at American University Washington College of Law, has been tracking this issue for decades now.

“Probably like lots of reform, if you’re looking at it over a longer timeframe, you can see progress, which clearly has been happening,” he says. “If you’re in the middle of it and particularly affected by it, it seems too slow.”

Before the Americans with Disabilities Act was passed, Dinerstein recalls, mental health questions were more broad, in that they asked if the applicant had ever in their life received treatment for a mental health concern. The first wave of reform, he notes, was to limit the scope of the question so that it focused only on the past five years.

But that’s not enough, he believes—and neither are statements that the intention of this type of question is not to deter applicants who have mental health diagnoses but instead to protect the public. In terms of the ADA, intention doesn’t matter, he says; for example, a state park that didn’t mean to exclude people with wheelchairs by not ensuring access could be found to be in violation. Similarly, he says, if the mental health questions deter some applicants—which may not only be because they fear not being admitted, but also because the very process of securing documentation and exposing personal details is burdensome and embarrassing—then this is a potential ADA violation.

Dinerstein echoes O’Dwyer’s concern about medical records and history being examined by people who lack medical expertise, and he also raises another issue: The mental health questions are “both overinclusive and underinclusive.” That is, many applicants are flagged for further inquiry even though they pose no reasonable risk to clients (because their condition is in remission, in treatment, or otherwise under control), while many others who perhaps do pose a risk, for reasons other than mental health, are allowed to pass through.

New York State Bar Association takes leadership role

To say that appointing the Working Group on Attorney Mental Health was one of Hank Greenberg’s first acts as president of the New York State Bar Association would be inaccurate. He received clearance to assemble the group while he was still president-elect, to allow it a bit more time to study the question that was its sole focus: whether the character and fitness portion of that state’s bar exam should continue to ask about mental health.

Greenberg says it was the resolution by the Conference of Chief Justices, along with news from such states as Virginia, Connecticut, and California, that first sparked his interest. As he dug deeper, he recalls, he became concerned that Question 34 (the designation for the mental health question in New York state) had a chilling effect on law students’ seeking treatment while not actually protecting the public. Aligning with the other sources who spoke with Bar Leader, Greenberg notes that very few applicants answer “yes” to this type of question, and that those who do present a risk can be screened out via other questions that are more narrowly focused and less apt to cause someone to skip necessary treatment.  

Greenberg also wondered whether the question was as relevant today as it may have seemed to be in the past. Medical advances in the last 20 or 30 years mean that many conditions that could have been incapacitating years ago now respond quite well to treatment, he says, and “our attitude and understanding of mental health and wellness issues is much more sophisticated than it was in the past.”

Greenberg, Dinerstein, and O’Dwyer also all say that many common physical ailments can cause impairment, and yet (other than addiction), it is only mental health conditions that are asked about in this type of question. All three say that this is because of a persistent stigma that has pervasive consequences for the profession and for lawyers.

To assemble the working group, Greenberg called on a variety of stakeholders from within the bar and from outside it. Along with law students, a judge, and a representative from the New York City Bar Lawyer Assistance Program, the working group was made up of representatives from the following NYSBA entities: the Committee on Disability Rights; Law Practice Management Committee, Subcommittee on Attorney Wellness; Young Lawyers Section; Committee on Legal Education and Admission to the Bar; Lawyer Assistance Committee; and Lawyer Assistance Program.

The group’s work was divided into three main categories: the impact of the question on applicants, which included an in-depth look at common law school stressors and at whether the existence of Question 34 discouraged law students from seeking help; the legality of the question from an ADA standpoint; and the use and utility of the question, meaning whether it was handled consistently and was helpful in protecting the public.

The working group determined that Question 34 should be eliminated and replaced with a question that focuses only on conduct and behavior. It presented its final report in November 2019, at a meeting of the NYSBA House of Delegates, which then approved the group’s recommendations after a discussion that included some dissent but was mostly favorable.

The House of Delegates vote was on a Saturday; just two days later, New York state Senator Brad Hoylman (D/WF-Manhattan), who is chair of that state's Senate Judiciary Committee, introduced a bill to eliminate Question 34. Another possibility, Greenberg says, is that change will come from within the court system. Later in November, the deans of 14 of New York state's 15 law schools wrote a letter to the state Administrative Board of the Office of Court Administration, in support of this change. Close to press time, that office referred the matter to the Chief Judge's Committee on Admission to the Bar. A NYSBA news item indicates expectation that the committee would decide to remove Question 34. 

Greenberg hopes other bars will look to NSYBA as a leader on this issue and that those in states that still have mental health questions on the character and fitness exam will take similar steps to look into it and perhaps recommend changes. Taking into account the prevalence of mental health problems in the profession, among judges, and in society at large, Greenberg says it’s likely that we’re all, at most, just one degree of separation from someone who has needed help at some point in their life.

“There’s so much help people can get that’s transformative, life-altering in positive ways,” he says. “I think it behooves us all to knock down the stigma and any barriers that are preventing people from getting the help they need.”

(Update: On February 26, 2020, in a State of the Judiciary address, New York Chief Judge Janet DiFiore announced that mental health questions were removed from the state bar application, effective immediately. Judge DiFiore also credited NYSBA for raising this issue.)

A role for the youngest bar members

One member of the NYSBA working group was Lauren Sharkey, chair of the bar’s Young Lawyers Section and also a member of one of the state’s two Committees on Character and Fitness. (Sharkey clarifies that, as a new member of this committee, she would not be the one to conduct an inquiry if an applicant answered “yes” to Question 34.) From the beginning, she says, it was clear that this project was a top priority for the bar—and she was excited to be part of it, and to present at the House of Delegates meeting the portion she had worked on.

“When I did the presentation, I made sure to acknowledge that we, as the Young Lawyers Section, were very pleased to be involved in something like this,” she adds, “because typically, we’re not asked to contribute to writing reports.”

While that may make sense for a lot of reports, given young lawyers’ relative lack of expertise, Sharkey notes that youth was an advantage in lending an important perspective to this report: After all, young lawyers still remember well the stress of law school and of the character and fitness exam.

“I think it’s a good way to get people involved [in the bar] and have them stay involved,” she says, “if you give them something of substance that’s going to be gratifying to work on.”

O’Dwyer says that in working to eliminate Virginia’s mental health question, her student bar association found its voice in a similarly important way. When she first approached the association to sign on to the letter, someone expressed surprise that student bar members could be advocates and not just focused on organizing law school social events.

“We can all be advocates,” O’Dwyer believes. “Get enough people working together, and it’s amazing what we can accomplish. There’s no reason someone should ever experience struggle and feel like they’re alone in it."