by Jamie Polinsky
Every October students across the United States wait with bated breath for their bar exam results to be posted. After studying for the LSAT, three years of law school, and even more time spent for the bar exam, everyone wants to finally see their hard work pay off and start a legal career. Yet, there are law school graduates who, even after passing the bar exam, cannot be sworn in as attorneys because they checked “yes” on a question on the Character and Fitness portion of the application and then were determined to be “unfit to practice law.[1]”
I. The Character and Fitness Investigation
The character and fitness investigation is a portion of the licensure process that evaluates the moral character of an applicant and whether they are fit to practice law. State bar associations, the groups that oversee lawyers in each state, have their own rules, regulations, and standards to which they hold their lawyers, but the questions they ask are still relatively consistent across jurisdictions. Questions in this investigation include: “Have you ever been disbarred, suspended, censured, or otherwise reprimanded or disqualified as an attorney?” and “Have you ever been cited for, arrested for, charged with, or convicted of any violation of any law other than a case that was resolved in juvenile court?”
For many, the most discussed and contentious question on some jurisdictions character and fitness investigation is about the applicant’s mental health. As of July 6, 2023, 10 states have adopted the character and fitness questions drafted by the National Conference of Bar Examiners (NCBE) [2] which indicates:
Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous illness 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. Are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment or because you participate in a monitoring or support program?
Fourteen other states have drafted their own questions version of the mental health question,[3] 5 states that do not follow the NCBE test in full have adopted at least one of the NCBE questions on mental health status,[4] and 21 do not consider a candidate’s mental health status in evaluating their fitness.[5] Some states include a question about whether a person has been subject to a conservatorship[6] (it should be noted that Ohio, California, Connecticut, and Oregon ask about mental health only in the context of a conservatorship). But does asking if one has ever experienced substance abuse, alcohol abuse, or a mental or emotional health disability, in fact, make the legal profession safer? Or better? If that is the end goal, is this the best solution?
II. The Legality and Ethics of the Mental Health Question on the Character and Fitness investigation
Since the passage of the Americans with Disabilities Act (ADA) on July 26, 1990, lawyers have argued that the ADA prohibits state bar associations from inquiring about an applicant’s mental health status as a component of the character fitness investigation. Title II of the ADA says, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity….” ADA regulations prohibit the discriminatory administration of licensing entities, as well as eligibility requirements that screen out individuals with a disability because of their disability status. Prospective lawyers have argued that, given the prohibitions above, the ADA does not permit state bar associations to use an applicant’s disability status to prevent entry into the legal profession, but this has not stopped bar associations from asking about an applicant’s mental health status.
In August 2014, the Department of Justice investigated a state’s question about applicant’s mental health history and noted that, “…diagnosis and treatment, without problematic conduct, did not effectively predict future misconduct as an attorney and did not justify restrictions on admission”. The Department of Justice found that asking applicants about their mental health does not show anything about an applicant’s ability to be an effective lawyer. Yet, even with this guidance, which states are not required to follow, many state bar associations still require applicants to disclose a mental health disability.
Evidence suggests that applicants’ fear of answering this question may impede their decision to access necessary mental health diagnoses and care. In one survey, 42% of law students said they felt they needed mental health services, but 45% of those students said they would not seek help because they believed getting help or a formal diagnosis would threaten their ability to be admitted to the bar. In the same survey, 44% of respondents reported that they believed they had a better chance of getting admitted to the bar if a mental health problem was hidden. Many law schools offer counseling appointments, but students fear what will happen if they seek treatment and receive a diagnosis. If students answer “yes” to the mental health question on a bar application, they potentially allow bar association volunteers to access intimate mental health records during the character and fitness review. If students do not report their mental health status, then they risk discipline for “false statements” or “failure to disclose”.
In a profession where rates of stress, anxiety, and substance abuse are higher than many other professions, this fear of seeking help creates environments where people are less likely to discuss or disclose health issues and instead keep quiet about their struggles. Mentions of attorneys who overdose on drugs or died by suicide due to the stress of their work are more commonplace than tall tales. The mental health question does not prevent these attorneys and many others from experiencing mental health disabilities, nor does it provide resources to these candidates for their mental health. Instead, the presence of this question likely reduces applicants’ desire to access the mental health services, diagnoses, and medication they require, due to fears of encountering mental health stigma and discrimination.
III. A Possible Solution to the Problem
The need to ensure that lawyers are mentally fit to conduct legal affairs is important, but this question is not the only way that this can be accomplished. Every lawyer in the country is required to follow the Rules of Professional Conduct and every law student is required to take a legal ethics course during law school. Under the Model Rules of Professional Conduct Rule 1.16, lawyers are already required to not open a case, or to withdraw from representing a client if they are not physically or mentally able to represent the client competently. Failing to abide by these rules can lead to discipline by a state bar association and, in egregious and dangerous situations, lead to disbarment. There already exists a safeguard in the legal profession to ensure that the public is not harmed lawyers struggling with a mental health disability.
By excluding all prospective lawyers who have a mental health disability from the legal profession it does not mean that there are no lawyers with a mental health disability, it’s just that those lawyers who are struggling are good at hiding their disability. These questions do not prevent there from being lawyers with mental health disabilities, but it does create an environment of fear around seeking help thereby increasing the stigma around mental health disabilities.
Lawyers occupy a position of power in the United States and there are standards to which they should be held. However, it is time that state bar associations reconsider how to accomplish this goal. By continuing to stigmatize mental health in the legal profession we discourage people who may become incredible lawyers from entering or trying to enter the profession. Instead of asking overly invasive questions regarding an applicant’s mental health disabilities, bar associations should consider how the applicant conducted themselves during legal internships, clinical work, and law school classwork to determine if they are fit and competent to be an attorney. We should be striving to empower aspiring attorneys to access the mental healthcare they need to have long and successful legal careers, not stigmatizing mental health diagnosis and treatment.
Jamie Polinsky is a third-year law student at the University of Maryland Francis King Carey School of Law, She recently completed an internship with Project HEAL at Kennedy Krieger Institute through the Maryland Center for Developmental Disabilities.
[1] https://abovethelaw.com/2017/06/a-bad-character-and-fitness-review-can-doom-you-to-years-of-unemployment/
[2] Alabama, Louisiana, Montana, New Mexico, North Carolina, North Dakota, Oklahoma, South Dakota, Vermont, West Virginia, and Washington D.C.
[3] Colorado, Delaware, Kentucky, Nevada, and Rhode Island.
[4] Alaska, California, Florida, Georgia, Kansas, Minnesota, Missouri, Nebraska, New Jersey, Ohio, Oregon, South Carolina, and Virginia.
[5] Arizona, Arkansas, Hawaii, Illinois, Idaho, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New York, Pennsylvania, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming.
[6] When someone is court-appointed to manage another person’s finances and personal affairs.
