Outdated mental health questions on bar registration are slowly changing

Sept. 28 (Reuters) – I know a young woman who is a straight-A college student, active in her community and responsible at work, and who says she is considering attending law school. He gave it to me.

I paused. Because I also know that she has bipolar disorder (though it’s well controlled with her medication).

Even if she gets into law school (which I’m sure she will) and passes the bar exam (which I’m sure she will), she won’t be allowed to take the bar exam because of her bipolar personality and physical fitness. Is it possible that I will be refused admission?

Is law closed to her as a profession?

A few years ago, I might have answered yes. Or, at the very least, they might have warned her that she would likely face a stressful and intrusive investigation to obtain her license.

But I’m encouraged that my answers have changed for at least 26 states as state attorneys increasingly reconsider their approach to mental health testing questions.

As my colleague Karen Sloan reported, New Jersey last week became the last state to revise its mental health screening questions for bar applicants.

Starting Oct. 1, Garden State examiners will determine whether an applicant has “demonstrated conduct or behavior in the past five years that calls into question their ability to practice law in a competent, ethical and professional manner.” It only asks a general question, “What do you think?”.

When answering questions, the court instructed applicants that they did not need to disclose “any mental health diagnosis, anything related to alcoholism or drug dependence” as long as they were receiving effective treatment. are doing. However, candidates will be asked to disclose whether they have invoked any condition or disability as a defense to an investigation, investigation, or judicial proceeding.

that’s it. In my mind, the focus is understandably on past deeds and actions, not on the diagnosis.

According to the American Bar Association, 21 other states do not consider a candidate’s mental health when evaluating their suitability.

Arizona, Arkansas, Hawaii, Illinois, Idaho, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New York, Pennsylvania, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming.

California, Connecticut, Ohio, and Oregon limit themselves to asking whether the applicant is subject to a conservatorship.

John Bauer, a professor at the University of Connecticut School of Law who has been on the front lines of the fight for 30 years challenging Barr’s mental capacity questions as discriminatory, says that this is a question that “shapes the arc of the moral world.” A good example (like Martin Luther King, Jr., Jr. once said) of bending toward justice.

“The tide is turning, albeit a very slow process,” Bauer told me.

Bauer said bar examiners across the country began asking questions about applicants’ mental health in the 1970s and 1980s.

Initial questions were often broad, such as asking whether the applicant had ever received any form of mental health counseling, but later asked questions about schizophrenia, other psychotic disorders, bipolar disorder, Narrowed down to focus on major depressive disorder.

In Connecticut, for example, attorneys added mental health questions in 1984 after highly publicized allegations of attorney misconduct and a public desire for “tighter admission standards,” Bauer said. (Never mind that there was misconduct such as theft by the probate judge) It has nothing to do with mental health issues.

And therein lies one fundamental problem with mental health screening questions. The truth is, you can’t predict whether someone will become a good lawyer or not.

According to a statement from the American Psychological Association, which called for the removal of such questions in August, data reveals “no association between bar application questions about mental health and attorney misconduct.” .

Furthermore, the nation’s largest organization of psychologists states that such questions “have not been shown empirically to serve as an effective tool for screening who can and cannot practice law in a competent manner.” No,” he continued.

Depending on the wording, the question may also violate the Americans with Disabilities Act.

In 2014, the Department of Justice reached a settlement with the Louisiana Supreme Court, invalidating an overly broad approach to evaluating applicants with mental health disabilities.

Title II of the ADA requires that accrediting entities “impose unnecessary eligibility standards that tend to single out individuals with disabilities or impose unnecessary burdens on individuals with disabilities that are not imposed on other individuals with disabilities.” The Department of Justice said that it prohibits “imposing or imposing any

Louisiana currently uses character and fitness language modeled after the National Conference of Bar Examiners, according to the ABA. In part, it requires applicants to have a “mental, emotional, or neurological disability” that could affect in any way their “ability to practice law competently, ethically, and professionally.” or condition”.

Applicants are also asked “whether their symptoms have decreased or improved as a result of ongoing treatment.”

These questions, used in 10 states according to the ABA, are less intrusive than many questions in the past, but they still strike me as potentially problematic.

Simply checking “yes” and having to provide an explanation (including being taken in front of a judge for a follow-up interview) can deter you from seeking treatment.

It’s not just an issue in the legal world. Dr. Lorna Breen’s Heroes Foundation says medical licensing boards are also working to eliminate mental health issues. The nonprofit was founded after a woman with the same name died by suicide in 2020. She feared her medical license would be revoked and was afraid to seek her help.

Earlier this month, the foundation reported that 25 state medical boards have removed “invasive and stigmatizing mental health questions” from licensing applications, a 47% increase in just one year. Ta. Eleven more states are making changes.

In medicine and law, the purpose of licensing is the same: to protect the public from unscrupulous practitioners.

Empirical and anecdotal evidence shows that motivating people living with mental health disorders (a growing population) to seek treatment is more effective than punishing them for doing so. is shown.

Report by Jenna Green.Editing: Lee Jones

Our Code of Conduct: Thomson Reuters “Principles of Trust”

I’m a columnist for Reuters Breakingviews. This column is written based on actual personal opinions.

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Jenna Green writes about the business and culture of law, covering a wide range of legal industry trends, behind-the-scenes stories, and quirky courtroom drama. She lives in Northern California, where she has spent years documenting the legal industry and high-profile litigation. Please contact Greene. jenna.greene@thomsonreuters.com

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