We remain convinced that a powerful way to support our law students, and the next generation of lawyers, in promoting well-being is to ensure that efforts to get appropriate help not stand in the way of the path to bar admission. We have been collaborating on advocacy efforts on this agenda through the ABA Commission on Lawyer Assistance Programs (COLAP). We will review where we have made progress, and where we can work together on concrete next steps to support the well-being of our law students and curb our current crisis in mental health.
Some History: The Louisiana Settlement Agreement
Following complaints of discrimination on the basis of mental health disability under the Americans with Disabilities Act (ADA), the U.S. Department of Justice launched an investigation in 2011 into Louisiana’s attorney licensure system. This investigation resulted in a settlement agreement The agreement sets forth essential elements of bar admission under the ADA and remains critical guidance. Under the settlement agreement, the state must refrain from inquiring into mental health diagnosis or treatment (unless an applicant voluntarily discloses) and any inquiry should be “narrowly, reasonably and individually tailored.”
The agreement made a number of specific recommendations and identified a new question for the character and fitness application for Louisiana that focused solely on conduct instead of any condition.
“Within the past five years, have you engaged in any conduct that:
- Resulted in arrest, discipline, sanction or warning;
- Resulted in termination or suspension from school or employment;
- Resulted in loss or suspension of any license;
- Resulted in any inquiry, any investigation, or any administrative or judicial proceeding by an employer, education institution, government agency, professional organization, or licensing authority, or in connection with an employment disciplinary or termination procedure, or
- Endangered the safety of others, breached fiduciary obligations or constituted a violation of workplace or academic conduct rules.”
This question is framed to focus on conduct, which we agree should be the appropriate focus of the character and fitness process. The goal is to ensure that admitted attorneys are able to serve the public responsibly. Any other inquiry that references medical diagnosis or mental health history is extraneous, irrelevant, and violates the ADA.
Since 2020: The Next Wave of State Reform Around Character & Fitness
The Louisiana settlement agreement prompted many jurisdictions and the National Conference of Bar Examiners to take a fresh look at questions regarding mental health and substance use in the character and fitness process. Perhaps the upheaval and change in routine of the pandemic offered a chance for progress on character and fitness. Some jurisdictions removed or significantly modified questions regarding condition or impairment. Each state came at it its own way. New York created a Working Group on Attorney Mental Health, composed of 22 members from at least nine interested bodies, as well as information gathered from scores more, culminating in a 216-page report calling for removal of their mental health question. The roughly nine-month process resulted in the announcement of removal of the applicable question in February 2020. Michigan followed suit, announcing major changes in March 2020 after extensive advocacy by the Michigan Judges and Lawyers Assistance Program. Within days of the New York announcement, Chief Justice Loretta Rush of Indiana called for a review, and 38 days later, announced that her state would no longer subject bar applicants to the invasive, impermissible mental health question.
We continue to hear from states that adopted reform, and states where advocates are seeking additional information on strategies for reform. The sea change finally appears to be upon us.
The Path Forward: A National Movement
In considering a review of their approach to character and fitness questions as related to mental health, we encourage state officials to consider the following, proposed in the ideal order of implementation. In doing so, we recognize that different views and perspectives are raised and considered in each state. It is our fervent belief, however, that the less a state highlights mental health as a lightning rod for their questions, the more likely a law student is to seek help when they need it, and subsequently not have a matter remain unaddressed upon application or after they enter the profession:
Best (GRADE: A)
All questions related to mental health are removed. Questions on the application focus only on specific conduct issues (arrest, financial management, etc.) without any reference to mental health or substance use.
States in this category: Arizona, California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Mississippi, Tennessee, and Washington
Better (GRADE: B)
Within the past five years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?
These states closely track the recommended language in the Louisiana settlement agreement, with limited timeframe and focus on conduct. These states have found a reasonable balance of inquiry for boards of bar examiners.
States in this Category: Michigan, Minnesota, Ohio, and Wyoming
We also see some states where a follow-up question on mental health is asked only if the applicant raises it in response to another question on the application.
Within the past five years, have you asserted any condition or impairment as a defense, in mitigation, or as an explanation for your conduct in the course of any inquiry, any investigation, or any administrative or judicial proceeding by an educational institution, government agency, professional organization, or licensing authority, or in connection with an employment disciplinary or termination procedure?
If answered in the affirmative, it is appropriate to follow up with specific inquiry to better understand and assess the matter. The authors have learned, however, from conversations in several jurisdictions that it is rare for an applicant to respond affirmatively to a condition or impairment question without also responding affirmatively to a conduct or behavior question. Considering this, the preferred approach is to eliminate the condition or impairment question, in turn removing the stigma that is serving as a deterrent in seeking help.
States in this category: Arkansas, Idaho, Indiana, New Hampshire, New York, and Texas
Our analysis also has identified a group of states that continue to ask targeted questions that focus on substance (including alcohol, narcotics, or other illegal substances). These states have however eliminated any specific reference to mental health or condition.
States in this category: Hawaii, Oregon, Pennsylvania, Wisconsin
Finally, Virginia receives a B- for asking a specific question about treatment:
Within the past five (5) years, have you sought or been directed to seek treatment for your conduct or behavior?
Although Virginia does a nice job of elucidating in its preamble what it is seeking and what it is not, inquiring about treatment in this manner has all of the invasive, unnecessary effects cited throughout this article. We want to encourage law students to seek treatment when appropriate, and without fear of bar disclosure.
NCBE States (GRADE: C)
The National Conference of Bar Examiners is a private entity that provides assessments and related bar admission resources to jurisdictions. Not only does NCBE draft the components of the bar examination, including the Uniform Bar Examination, Multistate Professional Responsibility Exam, and Multistate Bar Examination, but it also provides character and fitness services to participating jurisdictions.
At present, the NCBE question presents challenges for applicants.
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) that in any way affects your ability to practice law in a competent, ethical, and professional manner? Note: “Currently” means recent enough that the condition or impairment could reasonably affect your ability to function as a lawyer.
This question continues to call out “condition or impairment” while also asking follow-up questions that seek information on treatment providers. Asking applicants, who are in most cases current law students, whether they “currently” have any of the stated conditions presents significant challenges, particularly in light of the data cited above from the 2021 Survey.
Applicants who answer “yes” to this question are then asked a series of follow-up questions, including whether they receive treatment or participate in a monitoring or support program, and to list the name and contact information of treating doctors, counselors, hospitals or institutions. All of this is incredibly invasive and will inevitably lead to the potential for significant inquiry into private health information that may have no relevance to the ability to practice law.
States in this category: Alabama, Colorado, Delaware, District of Columbia, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Jersey (the state bar association has called on its judiciary to remove the mental health question), New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, South Dakota, Vermont, and West Virginia
In addition, the following four states closely track the NCBE question, although they do not officially use NCBE character and fitness services: Alaska, Kansas, South Carolina, and Utah
Revising the NCBE questions would have a significant impact on the 21 jurisdictions on this list.
Major Concerns/ Unacceptable (GRADE: F)
Our review flags three jurisdictions with questions that present some significant concerns. One is the continued focus on specific mental health diagnoses. This approach is completely inconsistent with the Louisiana settlement agreement and the ADA.
Within the past 5 years, have you been treated for, or experienced a recurrence of, schizophrenia or any other psychotic disorder, a bipolar disorder, or major depressive disorder, that has impaired or could impair your ability to practice law? If your answer is “yes,” please (i) identify each condition for which you received treatment or had a recurrence, (ii) state the beginning and end dates of any treatment (or state “present” if no end date); (iii) state the name and address of each professional who treated you; and (iv) identify any medication that was prescribed to you during treatment. Please direct each treating professional to provide any information or records that the Board may request regarding treatment, which includes, without limitation, hospitalization.
This language is directly from the Florida Board of Bar Examiners application, but also closely tracks Georgia. This article demonstrates a wide array of acceptable options that would not be targeting or stigmatizing specific mental health diagnoses.
Another major area of concern is Nevada, which continues to ask diagnosis and for 10 years of medical information.
In the past 10 years, have you been diagnosed with, been treated or sought counseling for bi-polar disorder, schizophrenia, paranoia, or any other psychiatric disorder, or have you ever been committed to any institution for the treatment of any such condition?
Nevada is another significant outlier, and we urge reform.
The Path Forward: A National Movement
As longtime advocates for law student well-being, the authors are pleased to see that bar regulators and state supreme courts in many states have responded to the needs of law students. Revising character and fitness questions send powerful messages to law students about how the legal profession will support their efforts to seek appropriate treatment and support for mental health and other struggles. In considering a review of approach to character and fitness questions as related to mental health, we would urge all states to see where they stand on our continuum. We are eager to provide information and resources to states, and NCBE, that are still in need of reform. We have the power to support the next generation of lawyers. Let’s use that power now.