Human Rights
Volume 24
Number 1
Winter 1997
Bar Application Mental Health Inquiries: Unwise and Unlawful
By Allison WielobobLaw students report more depression, anger, and hostility and less contentment and friendliness than medical students.--Charles Kellner et al., Distress in Medical and Law Students, 27 Comprehensive Psychiatry 220 (1986).
Law students have higher overall levels of psychological stress associated with academic, economic, and time concerns, and fears of failure and work related issues than medical students or graduate students in psychology or chemistry.
-- Marilyn Heins et al., Perceived Stress in Medical, Law and Graduate Students, 59 J. Med. Educ. 169 (1984).
Despite these data, the legal profession supports a stigma against mental health care for law students: many state bar applications require applicants to disclose treatment, diagnosis, and hospitalization for an emotional diagnosis or mental disorder. Disclosures often require explanation and supplementation. In addition, they frequently prompt review by bar examiners. Moreover, if detected, an applicant's failure to disclose a history of mental health care almost always involves discipline for dishonesty pursuant to rules of professional conduct. In contrast, almost no aspiring medical doctors are required to provide psychological background information at any point in the physician licensing process.
All state bar associations and the District of Columbia Bar have moral character requirements as prerequisite s to admission. Advocates of bar application moral character and fitness requirements justify them as logical extensions of evaluating moral character and fitness to practice. Further, bar examiners assert that emotional and mental health issues are pertinent to fitness to practice law.
Current psychological background inquiries are overly broad and unfairly implemented because many bar applications require disclosure of any past mental health treatment, including diagnosis or hospitalization, without time or scope limitations. Bar examiners' determinations of mental status are unfair because they are frequently made by nonexpert lawyers who are not qualified to determine if an applicant's condition or history would actually impede attorney work performance. The Americans with Disabilities Act, 42 U.S.C. 12101-12213 (Supp. V 1993), has been prominent in effecting modifications to psychological background inquiries. Still, many state bar associations maintain detailed mental health inquiries, which are biased and counterproductive. Moreover, they deter law students from seeking needed mental health treatment. In addition, they fail to achieve their stated purpose. Finally, the inquiries may also violate the Medical Records and Confidentiality Act and may be outmoded by recent mental health parity legislation.
Implications for Applicants
Bar applicants' disclosure of mental health treatment histories have more than informative significance. The consequence of a bar examiner's review of an applicant's mental health history may be denial of admission to a state bar. Thus, inquiry into an applicant's mental status poses potential career concerns. In addition, the questions may implicate the constitutional rights of applicants. A license to practice law is both an actual and an implied prerequisite to performing as an attorney. Admission to the bar is a rite of passage for law school graduates, carrying with it distinct status. Whether a lawyer litigates, prosecutes, defends, consults, teaches law, or maintains a transactional practice, bar membership signifies competence. Licensure may not technically be required of professors and consultants, but most lawyers working in those capacities are probably members of state bars nonetheless.Practitioners of many professions undergo professional licensing requirements. Physicians and certified public accountants, for example, in addition to lawyers, are subject to professional licensing. But attorney licensing is distinguished by moral character requirements. Formal character requirements for practicing attorneys have existed for nearly two thousand years. However, the scope of moral character evaluation has broadened significantly. Evaluations were once a "cultural showpiece." (Deborah Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 540 (1985); see also 64 A.L.R.2d 301 (1995). Today's conception of moral character includes mental health history and status, probably reflecting current social mores.
These inquiries can have meaningful results: aspiring lawyers with "mental problems" have been denied admission to state bars. Applicants to the bars of Arizona and Illinois have been excluded on the basis of demonstrated personality disorders involving "hypersensitivity, unwarranted suspicion, and excessive self-importance," or a "propensity to unreasonably react" to perceived opposition. In re Martin-Trigona, 55 Ill. 2d 301, 302 N.E.2d 68 (1973), cert. denied, 417 U.S. 909 (1974).
These so-called "mental problems" purportedly made the applicants unfit to practice law, despite that they had sought treatment. In contrast, officials in another jurisdiction asserted that the fact that an applicant seeks treatment for a problem is "viewed as a positive sign." Woman Fights to Bar Mental Health Inquiry; Va. Suit Challenges Question on Professional License Applications, Wash. Post, Jan. 15, 1995.
Presently, psychological background inquiries can have four consequences for bar applicants. First, if an applicant declines to answer a question, he or she will probably be denied admission until an answer is provided. Second, if an applicant falsely answers a question and the falsity of the response is discovered, the applicant will almost always face discipline for dishonesty pursuant to rules of professional conduct. Third, if an applicant answers a question affirmatively, the application may be delayed pending supplementation, explanation, and review. Last, the questions discourage applicants from seeking treatment.
Moreover, bar applicants imperil their privacy in complying with bar examiners' requests for very personal information about mental health treatment. Nonetheless, courts have found that as long as reasonable safeguards exist and there is no evidence of any breach of confidentiality, questions requiring disclosure are permissible. Florida Bd. of Bar Examiners Re: Applicant, 443 So. 2d 71, 74 (Fla. 1983).
But "[u]nauthorized disclosure of personal health information can have disastrous consequences...once a patient's information is submitted to a third-party payor, or to any other entity, the ethical tie between doctor and patient evaporates." Draft Report of the ABA Section of Individual Rights & Responsibilities Report to the House of Delegates, Feb. 1, 1996, at 2-3.
Concerns for medical privacy in this context and others have lead to introduction of the Medical Records Confidentiality Act. This act, which is co-sponsored by eight Democratic senators and twelve Republicans, is aimed at "ensur[ing] personal privacy with respect to medical records and health care-related information, and for other purposes." It is intended to establish uniform Federal guidelines for use and disclosure of health information, delineating the circumstances in which disclosure is permissible and to which audiences disclosure is appropriate. The legislation sets severe civil and criminal penalties for breaches of medical records privacy and is designed "to set a uniform Federal standard for handling medical records." The act is vital in the context of bar applications and others because appropriate protections must be afforded against unwarranted publication of personal data.
As of this writing, the ABA has yet to speak officially on the privacy of personal medical information in this context. However, the IR&R Section is drafting a policy supporting the passage of federal legislation that would protect the privacy of personally identifiable health information. The proposed policy does not suggest whether the federal legislation should preempt state law or provide minimum standards above which states could mandate greater protections for private medical records.
Other problems stemming from psychological background inquiries include the potential chilling effect on law students needing treatment. This is a disturbing and significant cost. Stress is pervasive in the law school environment. Encouraging mental health treatment is a much better policy than deterring it. Recently, researchers discovered that law students foreseeing bar examinations and accompanying inquiries avoid mental health care so that their records and reputations are not blemished.
Further, recipients of care may be inhibited in their treatment processes, because of impending bar authority inquiry into mental and emotional stability. Anticipating that the caregiver-patient privilege may be jeopardized, a patient may be inhibited or eliminate sharing certain subjects altogether, thereby compromising the integrity of the process. When Patients' Records Are Commodities for Sale, New York Times, Nov. 15, 1995.
The Americans with Disabilities Act (ADA) provides a convincing basis for challenging mental fitness questions on bar applications. Amongst its other purposes, the ADA was designed to prohibit exclusion from or limitations to employment or other opportunities of persons with disabilities. Its protections explicitly apply to persons with mental disabilities. A person who has sought or received mental health treatment meets the ADA definition of a person with a disability. Disability is variously defined under the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual;" as an individual with a record of an impairment; and notably, the person need merely be regarded as having an impairment, which does not have to be manifest or diagnosed. Thus, suggestion of impairment yields entitlement to ADA protection.
The ADA became effective in July 1992, but bar examiners and mental health advocates have debated its impact on the use of bar application psychological background inquiries since its enactment in 1990. Opponents of mental status inquiries on bar applications assert that the ADA provides an effective basis for challenges whereas constitutional claims have failed. Advocates of the inquiries maintain that ADA implementing regulations permit discrimination in certain excepted circumstances. They argue that if the questions are construed as discriminatory, they are permissible because they are necessary to protect the public.
The controversy over bar application psychological background inquiries under the ADA is thus reduced to whether bar licensing authorities' use of the questions to make admission determination is "discrimination against qualified individuals with disabilities" who answer the inquiries affirmatively. Provisions of Title II regulations define and clearly prohibit discrimination.
Still, the inquiries do not serve to protect the public and therefore do not meet necessity exceptions of the ADA and are therefore discriminatory. The ADA and corresponding Department of Justice regulations do, however, permit discrimination in certain specified circumstances. A public entity may impose eligibility criteria that have the effect of screening out persons with disabilities if "such criteria can be shown to be necessary for the provision of the service, program, or activity."
The preamble to the ADA explains that permissible screening criteria are those "necessary for the safe operation of the program in question." The preamble provides examples of warranted safety requirements that necessarily exclude persons from activities such as drivers' licenses and rafting trips. In other words, the noted necessity exceptions are based on tangible risks, suggesting that the exception is to be read narrowly. An appropriate reading of the necessity exception does not permit discrimination by licensing entities against persons with histories of mental health treatment.
An applicant to the bar who meets basic eligibility requirements for licensure is qualified under the ADA, despite the presence of a disability. Further, if the mere appearance of a disability inhibits the licensing process, the licensing entity is in danger of violating the ADA. Nonetheless, advocates of psychological background inquiries assert that the necessity exception permits the inquiries. Consistent with that interpretation, advocates of the inquiries maintain that they are necessary to protect the public. But questions about behavior, not mental health treatment, would more accurately discover potentially problematic practitioners.
Moreover, a treatment history is unreliable for evaluating present ability or future fitness to practice law. The lack of predictability associated with mental and emotional issues mitigates against the utility of questions for the purposes bar examiners advocate. Mental disorders typically recur as ongoing conditions that do not follow a uniform course of development. Symptom intensity and duration differ among individuals. In addition, the degree to which daily functioning is affected varies widely. Thus, the course of mental illness is irregular and manifests itself in distinctive and individualized symptoms for each sufferer. Categorizing mental health disorders are therefore not useful for indicating practical problems. There is no precise list of questions that will reveal a person's fitness to practice law and no uniformity among people who suffer from various conditions. Problematic attorney behavior is better predicted through behavioral indicia. Characteristics of most concern are those involving dishonesty or lack of trustworthiness, traits that more accurately relate back to the origins of the moral character requirement for bar admission.
Further, psychological background questions bespeak an insincere purpose. They do not serve to screen bar applicants about purported limitations in a truth-seeking way. Instead, they reflect biases against mental health care and allegiance to those biases. The majority of corresponding responses cannot be useful or informative to bar examiners. Most applicants have probably never practiced law before, yet they are asked to speculate on their ability to do so. Also, applicants' familiarity with applicable caselaw is presumed, which is unlikely.
Bar examiners' justifications for bar application inquiries are not persuasive. Protecting the public is offered as a major justification for the inquiries, yet ongoing inquiry into the mental health of admitted lawyers is lacking. Further, although aspiring lawyers are required to disclose very personal information, mental health conditions are rarely the reason for denial of admission to state bars. On the contrary, mental illness has been a mitigating factor in cases of attorney misconduct.
Ironically, dissuaded and untreated lawyers present the problems that bar examiners' inquiries purport to prevent. Treatment of mental and emotional issues should be encouraged if the goal is a healthy and productive bar. This approach is worthwhile, considering realities members of the legal profession presently face:
This harsh environment takes its toll. Suicides may be rare among lawyers but severe emotional problems are not. A 1990 Johns Hopkins study comparing more than 100 professions ranked lawyers first on a depression scale. Another recent study of the Washington bar found that up to a third of the state's lawyers were suffering from symptoms of depression or substance abuse - a rate double the national average.
Accepted members of the bar are encouraged to seek treatment, despite discrimination faced by bar applicants who have received mental health treatment. Apparently, in the eyes of state bar associations, treatment for mental or emotional issues is acceptable after an attorney has proven herself qualified for bar membership.
The impetus to have attorneys meet moral character qualifications for bar membership is well-intended. The long history of the moral character requirement demonstrates the bar's longstanding belief that its members should meet high standards, commensurate with their responsibilities and privileges. Scrutinizing all aspiring lawyers who have received any mental health care is imprudent, however. The inquiries represent outdated and close-minded biases against particular manners of achieving mental health. Comparable means of reaching similar counseling ends, such as consulting clergy, family and friends, are free from negative stereotyping and corresponding scrutiny by bar authorities.
Moreover, employers' letters of recommendation on personal knowledge and good faith, for example, are alternative means of reliably evaluating diligence, responsibility, and most importantly, honesty. These significant positive traits can be discerned from employment situations. Bar applicants' failure to demonstrate these traits in the past, may, in terms bar officials are reasonably able to judge, show that a candidate is not qualified to practice law.
Finally, though constitutional challenges have failed, the ADA is a convincing tool by which psychological background inquiries will be stricken. State bar associations should heed the position of the ABA on the ADA's impact. Doing so will avoid unnecessary litigation. Caselaw demonstrates that the inquiries are unlawful under the ADA. Bar associations should respect the authority and responsibility with which they are charged and design questions that represent lawful compromises. Inaction on this matter is irresponsible in light of the evidence.
Bases of Existing Structural Discrimination
Perceptions of mental health care fundamentally inform the current debate over bar application inquiries into mental status. Despite the established validity of many therapeutic processes, mental health care is still stigmatized by many state bar associations through their application processes. Societal biases against mental health care are systematic and longstanding. Bar associations have institutionalized those prejudices through the attorney licensing process.Prejudices against mental health care have historically been institutionalized through insurance coverage. Until September 1996, when President Bill Clinton signed the Mental Health Parity Act into law, the illnesses and diseases of the brain were not officially on equal legal footing with all other forms of illness. The President's signature on the bill culminates the considerable efforts of Senator Pete Domenici to end de jure discrimination against the mentally ill. The Act, included as part of the 1997 Veterans Affairs, Housing and Urban Development and Independent Agencies Appropriations Bill, requires parity coverage for the mentally ill for aggregate lifetime and annual insurance payment limits. Still, discrimination persists in the attorney licensing process and, of course, in the arena of public opinion.
The significance of psychological background inquiries is that law students needing care may be deterred from seeking treatment. They suggest to law students that state bar associations view mental health treatment as shameful and suspect rather than prudent and productive. In addition, impending inquiry into mental stability may restrict the treatment process. In other words, law students who seek psychological or psychiatric care in the face of eventual inquiry, may, during treatment, be inhibited in their discussions, knowing that their communications will be subject to review by bar authorities. Bar examiners often consult treating physicians as to the nature of an applicant's illness and course of treatment. Doctor-patient confidentiality endures insofar as specific details of discussions, but disclosure to bar authorities can ultimately compromise confidentiality nonetheless. Disclosure of characterizing elements and categorizations of mental illness can be damaging, given persistent negative stereotyping of mental disorders.
Bar application inquiries into mental health care history have been challenged in court. State courts typically defer to the discretion of state law examiners in decisions to admit or deny admission to specific bar applicants. Frequently, appeals from denials of applications are remanded to bar examining committees for new hearings. That is, courts have found it improper for the judiciary to substitute assessments of applicants for those of examining committees.
Many federal decisions in this context concern state courts' roles and the procedures they use to evaluate applicants. Federal courts have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgement in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising out of judicial proceedings. Challenges to the constitutionality of state court decisions, however, are reviewable by the United States Supreme Court.
Federal law applying to the composition of state bar applications includes the Supreme Court case Schware v. Board of Bar Examiners of New Mexico, which provided that "a state can require high standards of qualification such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law."
Erdmann v. Stevens concerned a New York attorney's search for injunctive relief against disciplinary proceedings instituted against him. The Second Circuit dismissed the plaintiff's claim for insufficiency but affirmed the role of state courts in scrutinizing lawyers who will practice in state courts, based on mental health treatment. The court found it proper that state courts have traditionally had wide discretion in the establishment and application of standards of professional conduct and moral character for attorneys.
Outside the courtroom, bar examiners assert that they are entitled to assess an applicant's fitness for practice by inquiring into its mental health. They argue that a license to practice law carries a capacity for great harm and is subject to abuse by those battling with mental illness. Further, in an age of widespread lawyer-bashing, bar examiners claim to protect consumers from unfit lawyers.
Critics of psychological background inquiries assert that law students needing treatment choose not to seek it because it may become problematic as they apply to state bars. One study revealed that law students are four times less likely than medical students to utilize counseling services. Medical schools' advocacy of counseling services to medical students probably contributed to that result. Still, the competitiveness of law school may not be conducive to personal disclosure. Many law students strive to conform to perceptions of lawyers as strong, self-sufficient, and independent. But studies show law students' need for mental health care may be great.
Critics of bar application psychological background questions further contend that the connection between mental or emotional problems and doubtful competence and moral character is weak. They also assert that neither the diagnosis nor treatment of any mental or emotional issues reasonably permits inferences about an attorney's ability to behave competently, professionally, and with integrity. Opponents of the inquiries find new support for their position in the Americans with Disabilities Act. The Questions
Moral character requirements of bar associations vary from state to state. The ABA and the National Conference of Bar Examiners jointly recommend standards for moral character screening to bar reviewers nationwide. In the Code of Recommended Standards for Bar Examiners (Code), the ABA and the National Conference of Bar Examiners assert that the "primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice." As to the standard of character and fitness, the Code states that a "lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them." Relevant conduct includes "evidence of mental or emotional instability." The Code purportedly targets mental and emotional disability; "conduct that is merely socially unacceptable...is not relevant."
Current bar application questions presumably embody principles enunciated by the American Bar Association and their National Conference of Bar Examiners in the Code. As an example, the New Jersey Application for Admission to the Bar Examination currently inquires into applicants' mental health care histories. It states:
XV. HEALTH B. Have you, within the past twelve months, been admitted to a hospital or other facility for the treatment of bipolar disorder, schizophrenia, paranoia, or any other psychotic disease? Yes No
Are you currently suffering from an emotional, mental, or nervous disorder that impairs your judgment or that would otherwise adversely affect your ability to practice law in compliance with the Rules of Professional Conduct, the Rules of Court, and applicable case law? Yes / No
If your answer to either of the foregoing questions is yes, provide the details on a separate attachment, including the names of treating physicians, and dates and places of inpatient treatment.
Evidently, New Jersey bar examiners perceive that "protection of the public and the system of justice" is facilitated by asking applicants about psychiatric treatment in the past year, as well current experience of emotional, mental, or nervous disorders that the applicant believes would impair its judgment or ability to practice law. In contrast, Virginia officials dismiss the utility of self-reporting, claiming that reliance thereon is unwise. In litigating Clark v. Virginia Bd. of Bar Examiners, Virginia bar examiners defended questions about hospitalization and treatment, contending that applicants should not be asked to judge their own condition. Further, counting on applicants to reveal information that might reflect negatively on their ability to practice law could facilitate concealment of pertinent negative data, according to the Virginia Bar Association.
New Jersey's mental health inquiry is typical of many current bar application psychological background inquiries, which are overly broad and unfairly implemented. Additional typical bar applications ask: "'Have you ever received diagnosis of an emotional, nervous or mental disorder?'" and "'[h]ave you ever consulted a psychiatrist, psychologist, mental health counselor or medical practitioner for any mental, nervous or emotional condition, drug or alcohol use?'"
Constitutional Bases of Legal Challenges
Bar application mental health status inquiries also raise constitutional concerns. Critics of current licensing processes argue, so far unsuccessfully, that the extent of inquiries into mental health histories and their attenuated relevance to moral fitness disturb basic notions of individual privacy. The penumbra of federal constitutional privacy protections, critics assert, in addition to those of state constitutions, protect individuals against intrusive inquiries into personal affairs.Courts have rejected assertions that current licensing inquiries violate constitutional rights to privacy, citing states' interests in "sound" bars as outweighing individual privacy concerns. Bar examining committees assert that evaluating applicants' fitness is inherently related to the essential functioning of the courts, and is therefore necessary.
In response to privacy-based challenges to the bar application inquiries, courts have also generally stated that privacy rights must be appraised in the context in which they are asserted. Courts have found mental status inquiries reasonable as regards applicants' constitutional right to privacy. Further, bar applicants do not have a constitutional right to be admitted to a state bar association, according to a recent decision. Instead, applicants must prove their fitness to practice law. And, though state courts are often the final arbiters of appeals from denials of admission, when appealed to, federal courts typically defer to state bar reviewing committees' determinations of individual fitness.
Some plaintiffs have directed privacy-based constitutional challenges at the breadth of fitness inquiries. Challengers have claimed that mental health questions permit broad assumptions from information that has little to do with the ability to practice law. Courts have generally disagreed, asserting the government's strong interest in obtaining information regarding mental status, even if the inquiries are overreaching. Bar application inquiries into mental status arguably implicate due process concerns as well. Lack of notice to aspiring lawyers about screening may violate procedural due process; most law students do not learn of bar application psychological background until after they have started their legal education. In addition, screening of applicants by nonexpert officials may also implicate substantive due process. Officials reviewing applicants' disclosures are typically lawyers. According to one former reviewing official, bar examiners typically scrutinize treatment histories for evidence of mental or emotional conditions which would make a person unfit to practice law. Bar examiners "need to feel satisfied" that a mental condition will not make a person unit to practice law, but they lack the expertise to make such an assessment.
Moreover, the ability of mental health professionals to predict future behavior from past conduct is conjectural at best Reviewing committees are not consistently deferential even to medical opinions. A manic-depressive applicant to the Connecticut bar was denied admission "on the basis of a psychological impairment that rendered him 'unfit.'" His application was denied despite a letter from a treating physician describing the absence of current symptoms and asserting that he was fit to practice.
Caselaw Interpreting the ADA
Application of the ADA to licensing challenges is relatively recent. Nonetheless, ADA-based challenges to mental status inquiries have yielded significant changes. As of February 1995, at least eight states had modified their inquiries into mental health treatment and/or statutes as a result of actual or potential ADA-based challenges. Some federal courts have found that inquiries into bar applicants' mental health violate the ADA. Others have upheld modified inquiries in the face of ADA-based challenges. Still other states have removed mental status inquiries from their bar applications. Pennsylvania and Minnesota, for example, removed reference to mental status altogether.Many plaintiffs challenging mental status inquiries on ADA bases have initially sought injunctive relief in the form of admissions to bars. But, federal courts have not found jurisdiction over the outcome of individual bar applications.
The Position of the American Bar Association
On August 9, 1994, the ABA House of Delegates formally adopted a policy regarding bar application questions as to an applicant's mental or emotional diagnosis, treatment and hospitalization. ABA 1994 Resolution 110 reflects the official ABA position regarding mental status and history inquiries but is not binding on bar examiners. It provides that state bar examiners may persist in inquiring into applicants' mental health status but should narrow their inquiries to specific questions relevant to fitness to practice. The resolution does not purport to resolve ADA issues raised by the inquiries. 1994 Resolution 110's advocates assert that "questions involving the ADA should be left for the courts to decide."The Association of American Law Schools and the National Conference of Bar Examiners endorse Resolution 110. Still, Resolution 110 reflects a compromise among competing concerns. Debate within the ABA regarding mental status inquiries mirrors polarization among members of the general legal community. The Resolution embodies a balance between ABA members' concerns about "the quality and soundness of those admitted to practice ... [and the acknowledgment] that they deserve some dignity and privacy."
Some of Resolution 110's supporters maintain that it is designed to "protect the public from unfit lawyers without trampling on bar applicants' privacy rights." Still, the IR&R Committee on the Rights of Persons with Disabilities "did not believe the Resolution went far enough, in other words, banning all questions regarding an applicant's mental health history." That committee reported that despite the Resolution's narrow tailoring, including the suggestion that inquiries be limited to behavior or impairments pertinent to ability to practice law, many state bar applications remain unchanged, and ask broad-based questions about applicant mental or emotional diagnosis, treatment, and hospitalization. Realization of 1994 Resolution 110's intent is uncertain.
Sidebars: