Mental Health Is a Concern
Know this: your mental well-being is a significant concern of the profession. A 2016 study by the ABA and the Betty Ford Foundation of 13,000 practicing lawyers found that between 21 and 36 percent qualified as problem drinkers.
We want healthy lawyers practicing law. The character and fitness process is not intended to keep applicants with a mental health history out of the practice. Nor is it intended to make an inappropriate inquiry into your mental health.
The application shouldn’t—let me say that again—it shouldn’t ask you a question about whether you’ve been in mental health counseling, a patient in a mental health institution, or suffered a mental health crisis. Absent the circumstances described here, your mental health history is protected.
The Question You Might See
What you can be asked is whether you’ve had any criminal law interactions. That question might prompt a response that you were cited for driving under the influence. Your answer may require questions about similar behavior. One or more DUI arrests in the recent past could result in you undergoing a psychological evaluation to evaluate your current well-being. The interest of the bar is just that—your current well-being.
Other law enforcement interactions, such as assaults, disorderly conduct, or breaches of the peace, might indicate behavioral issues that could warrant an evaluation. Non–law enforcement actions, such as orders of protection or orders against harassment, may indicate behavioral issues that require further investigation or evaluation.
Neither the committee nor the applicant is qualified to offer an expert opinion on any applicant’s current fitness. The psychological evaluation may yield information about your mental health history and will relate to your current mental well-being. Often, the evaluation is performed by a PhD psychologist. Some mental health issues may be beyond the psychologist’s capability and need to be performed by a psychiatrist.
What If I Don’t Answer Questions?
If an evaluation is requested and you refuse, you may not be licensed. Some applicants take another tack: They’re very discreet in how they answer the evaluator’s questions.
Most psychologists first have you perform a variety of tests, one or more of which are designed to determine defensiveness. The evaluation is only good if it’s valid and if the results can be properly interpreted. So, if you try to cheat the exam, it’s likely to be invalidated. What good does that do you?
The Benefits of the Evaluation
Once you and the committee know there’s an issue, the committee can work with you to evaluate your plan to treat it. It’s your plan, however, that’s important going into the hearing or inquiry process. If you’re not seeking treatment or you refuse to acknowledge an issue, the process may not go well. If, alternatively, you’re already in treatment, have a good support group, and have had a sustained period of remission, the hearing process is more likely to be successful.
In states with conditional admission, the committee may seek to continue to monitor you for a period, perhaps one or two years, to ensure continued treatment or sustained remission. In states without conditional admission, the final decision on your admission may be continued for a period to confirm your remission. Monitoring could include drug testing, counseling, psychiatric treatment, group therapy, relapse therapy, and attendance at AA meetings (if that has proved helpful to you).
Don’t Let Mental Health Concerns Stop You
You, as the applicant, will pay for the evaluation. However, the committee selects the evaluator. By selecting the evaluator, the committee achieves consistency in diagnostic testing and interpretation, ensuring every applicant is treated the same. On rare occasions, a substitute evaluator of the applicant’s choosing may be accepted, but that is rare and not preferred.
The evaluator will share test results and interpretations with the committee. Most jurisdictions will agree to seal the results. At a hearing, the evaluator may be a witness, along with any expert you, as the applicant, may choose. It’s also possible the committee will select an additional expert witness.
In the end, the profession wants healthy lawyers so they can remain diligent, competent, and attentive to their clients. If your mental health might become part of the character and fitness process, a strong plan to show you’ve worked to achieve good mental health is your best move, starting today.
