- If you’re considering seeking counseling or other mental health treatment, don’t let the character and fitness inquiry stop you from getting the help you need.
Law school is stressful. While some aspects of law school are unavoidably stressful because they are meant to simulate law practice and to prepare students for the stresses of a modern legal career, other aspects of law school may be unnecessarily so or more stressful than they need to be. And in addition to law school stress, students may experience external stressors, whether related to relationships, family, health, finances, or otherwise.
In response to a recent survey of law students, roughly one-quarter to one-third of respondents reported frequent binge drinking, misuse of drugs, and/or mental health challenges. In recent years, law schools have made progress in helping students manage their stresses by dedicating additional resources to student affairs, academic support, and counseling, though there is still room for improvement. But even with this support, some students need additional support, regardless of whether they’ve ever needed counseling or other mental health treatment before.
If you’re considering getting counseling or mental health treatment, don’t let the character and fitness requirement prevent you from doing so. Unfortunately, many students fear that getting counseling or other mental health treatment will cause them to fail the character and fitness portion of the bar application—in the same survey mentioned above, law students identified the character and fitness requirement as one of the top factors for not seeking mental health treatment. But for most students, that fear is unfounded. Ultimately, very few applicants are denied admission to the bar on mental health treatment grounds.
Let’s start with some reasons why seeking counseling or other mental health treatment is a good idea, irrespective of the character and fitness inquiry. Nothing is more important than your health. Getting the support that you need will put you in a position to succeed—in practice, in law school, and on your bar application (more on this in a minute).
Law practice presents many of the same challenges as law school, if not more, so identifying strategies that help you manage the stresses of law school (and life) will better equip you to manage the stresses of practice. Part of being a successful lawyer is recognizing when you need help—with an assignment, a client, or a job search—and the same is true of your mental health. Managing stress is a skill, and if you start (or continue) working on that skill during law school, you’ll be able to do so with a support system: your law school’s student affairs staff, along with faculty and others who will be happy to help you or refer you to additional resources.
Some law schools have even begun to employ therapists; if your law school doesn’t, you may still have access to counseling through a university counseling center if your law school is affiliated with a university. And don’t forget your classmates, who can be another important part of your support system, and who often can relate to your experiences better than anyone else.
Very few applicants are denied admission to the bar on mental health treatment grounds.
Turning to the character and fitness inquiry, remember that inquiries into mental health are just one piece of the character and fitness application. Character and fitness inquiries vary by state but typically include questions about educational, employment, and financial background, along with questions about criminal and civil misconduct and mental health.
Because the character and fitness inquiry is a holistic one, your responses to questions about your mental health won’t be considered in a vacuum but rather in the context of the other information you disclose. Also, while many states still inquire about mental health, not all do (e.g. Illinois).
To be clear: while the state of character and fitness inquiries into mental health is improving, it is less than ideal. In 2014, the US Department of Justice (DOJ) found that assessing fitness based on mental health may violate the Americans with Disabilities Act. Instead of examining mental health diagnoses, the DOJ recommended that states examine applicants’ past conduct.
In response, the National Conference of Bar Examiners (NCBE) revised its standard questions related to mental health: the form now asks whether the applicant “currently [has] 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.” (The NCBE’s form is used by approximately half of the states, not including California, Illinois, New York, or Texas.) Many of the states that don’t use the NCBE’s form have made similar changes to their mental health questions.
Additionally, in 2015, the ABA adopted a resolution that the character and fitness inquiry should be directed “on conduct or behavior that impairs an applicant’s ability to practice law in a competent, ethical, and professional manner,” and the National Task Force on Lawyer Well Being recently echoed that recommendation. Unfortunately, there are a handful of states that haven’t followed the NCBE’s lead—as a result, those states’ mental health questions may be phrased unclearly, use non-inclusive or insensitive terminology, or seek broad disclosure of sensitive information.
In an ideal world, character and fitness inquiries into mental health would be even more circumscribed (or eliminated altogether). As the DOJ noted in its 2014 opinion, research shows that answers to mental health questions do not accurately predict whether an individual will later have character and fitness issues. And to the extent that these questions discourage students from seeking treatment, they may cause more harm than good.
Until further reforms are made, bar applicants in some states will have to answer questions about mental health. But even under the status quo, the questions generally focus not on diagnoses themselves but on whether any mental health or substance abuse problem will impact an applicant’s ability to practice law.
In addition, the character and fitness application itself makes clear that seeking treatment is a positive factor. As a follow-up to questions about mental health, most states ask whether applicants have sought treatment to ameliorate their mental health condition or substance abuse problem. Among other things, getting treatment shows that the applicant: has control over his or her mental health issues, is self-aware enough to know when he or she needs assistance, will follow through in getting help, has a plan for getting help in the future, and has a support system. All of these factors help show that an applicant is fit.
If you feel that you would benefit from counseling or other mental health treatment, your law school’s student affairs office can likely connect you to appropriate resources and generally can do so confidentially. In addition, there are Lawyer Assistance Programs (LAPs) in every state that provide free and confidential services and support to attorneys and law students facing substance abuse disorders or mental health issues.
And if you’re preparing to complete the character and fitness application, your law school’s student affairs office can go over the questions with you and provide personalized and state-specific advice about mental health disclosures based on your situation. LAPs also provide free and confidential advice on character and fitness issues and, if necessary, can refer applicants to attorneys who specialize in character and fitness issues.
If you’re considering seeking counseling or other mental health treatment, don’t let the character and fitness inquiry stop you from getting the help you need. Take advantage of the resources that are available to you, both in seeking help and in navigating the character and fitness process. Ultimately, getting help will put you in the best possible position for success, including for your admission to the bar.
Thank you to Ted Becker, Julie Kaplan, Bayrex Martí, Darren Nealy, Dr. Reena Sheth, Scott Hiers, and Travis Miller for their thoughtful and helpful input on this post.