Inside the Efforts to Remove Mental Health Questions from Character and Fitness

For decades, virtually every state required bar applicants to answer invasive questions about their mental health diagnoses. In 2014, the Survey of Law Student Well-Being revealed the effect of this practice: nearly half of all law students were dissuaded from seeking mental health treatment for fear that such treatment would have negative ramifications for bar admission. For the same reason, an even greater percentage of law students would not voice concerns over the mental health of a classmate.

Fortunately, that study, along with the tireless efforts of judges, lawyers, law students, and other advocates, has resulted in a powerful push to eradicate those questions. In 2019 alone, several states have removed, or begun the process of removing, questions from their character and fitness applications about an applicant’s mental health. One of the most promising developments has been the leading role taken by law students and the support those students have received from their law schools. In celebration of the ABA’s Mental Health Week, this post reviews the meaningful changes occurring on this front across the country and suggests steps that law students and law schools can take to encourage more states to remove mental health questions from their character and fitness applications.

In Virginia, for example, students at law schools across the state coordinated their efforts in a letter-writing campaign to the state bar association, the local legal community, and the news media. With the support of law school deans, they drafted a petition to the Virginia Supreme Court and the Board of Bar Examiners. This student-led, statewide effort culminated in the Virginia Board of Bar Examiners eliminating the requirement that applicants disclose prior mental health treatment.

In our home state, Michigan, law schools have been vocal advocates for the elimination of the state’s mental health inquiry. After the Michigan Supreme Court requested public comment in January regarding the mental health questions on Michigan’s character and fitness application, both Wayne State University Law School and the University of Michigan Law School submitted comments strongly encouraging the removal of those questions. In its comment, Michigan Law School wrote that “questions concerning mental health diagnoses and treatment are counterproductive if the goal is ensuring the fitness of licensed attorneys, as they further stigmatize the topic of mental health and disincentivize help-seeking measures.”

Similarly, in its comment, Wayne State asserted that inquiries into mental health are “not an effective or appropriate way of assessing an applicant’s ‘good moral character’ and ‘fitness and ability’ to practice law” because those inquiries “likely discourage law students from seeking needed help for substance abuse and mental health issues, further exacerbating prevalent problems in the legal profession.”

In addition to Virginia and the states that eliminated mental health questions prior to 2019 (including Arizona, Illinois, Massachusetts, Mississippi, and Washington), several other jurisdictions have eliminated mental health inquiries or taken steps toward doing so. For example:

• California: A bill signed into law by Gov. Gavin Newsom in July prohibits state bar examiners from reviewing an applicant’s mental health records unless offered by the applicant. The bill passed unanimously and will become effective on Jan. 1, 2020.

• Connecticut: The Connecticut Bar Examining Committee voted unanimously in January to remove questions on mental health diagnoses from the Connecticut bar application. The character and fitness inquiry will instead include questions related to specific conduct.

• New York: In June, the New York State Bar Association created a task force to evaluate the state’s mental health question. The task force is expected to report its findings and recommendations by the end of this year.

In addition, in February 2019, the Conference of Chief Justices joined the American Bar Association and the National Task Force for Lawyer Well-Being in calling for states to remove mental health inquiries from the bar application.

While the majority of states still inquire about mental health and substance abuse history, the rapid progress over the past year is promising. So, as a law student, what can you do if your state still asks about mental health diagnoses on its character and fitness questionnaire?

First, and most importantly, 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. Seeking treatment is a positive factor that helps show an applicant’s fitness. For example, the Florida Bar, which unfortunately still requires disclosure of certain mental health diagnoses, notes that it “views effective treatment from a licensed professional as enhancing the applicant’s ability to meet the essential eligibility requirements to practice law.”

Consult with your law school’s student affairs office or your state bar association’s Lawyer Assistance Program for personalized, free, confidential, and state-specific advice about mental health disclosures.

Second, if 2019 is any indication, you can play an instrumental role in the elimination of invasive mental health inquiries. Follow the lead of law students around the country who have successfully lobbied their states to eliminate questions on mental health. Talk to your law school administrators about your concerns. Write an op-ed in your local newspaper. Join the 450-member Facebook group, Law Students Mental Health National Alliance, which connects mental health activists and facilitates the sharing of resources and advice. Speak up—your voice matters.

Finally, if you are a law school administrator or faculty member, seek out ways to support your students. You have a unique position of influence in your state. Use it. Call or write your state bar association. Sign onto petitions drafted by law students. Be the advocate you want your students to become.

The past year has been an important one for law student mental health. Working together, we can make the legal profession even healthier in 2020.