Mental Illness Disclosure Requirements on State Bar Moral Character and Fitness Applications: A Qualitative Survey Theresa Esquerra* INTRODUCTION Perhaps no other profession stigmatizes mental illness as much as the legal services industry. Only recently have members of the legal community come forth with their stories about struggling with serious mental illnesses.1 Professor Elyn Saks’ memoir, The Center Cannot Hold: My Journey Through Madness, chronicles her experiences with schizophrenia while she attended Yale Law School and throughout her professional career as a law professor at the University of Southern California. Her book stands out as one of the first works to break the silence about lawyers who suffer from mental illnesses.2 Early in their careers, lawyers discover as law students that suffering from a mental illness can be a liability and that it might prevent them from obtaining their license to practice law. Each of the fifty states, the District of Columbia, and the United States territories requires bar applicants to pass a moral character and fitness exam as a condition of being admitted to the bar. The purpose of these exams is to protect the public from unethical lawyers who may suffer from any number of problems including, but not limited to, financial irresponsibility and prior *The research and writing of this article was supported by the 2009 Scattergood Emerging Scholars Fellowship administered by Active Minds, Inc. The author is a LL.M. candidate at The George Washington University Law School (’10). She received her Juris Doctorate degree in 2008 from University of the Pacific, McGeorge School of Law, and an A.B. in 1997 from Harvard College. 1 See ELYN SAKS, THE CENTER CANNOT HOLD: MY JOURNEY THROUGH MADNESS (2007) (recounting a female law professor’s personal experience with schizophrenia); James T.R. Jones, Walking the Tightrope of Bipolar Disorder: The Secret Life of a Law Professor, 57 J. LEGAL EDUC. 349 (2007) (explaining a male law professor’s personal struggles with bipolar disorder). 2 It is worth noting that Professor Saks and Professor Jones are uniquely positioned to write about their personal experiences with bipolar disorder. Both are tenured law professors who cannot be discharged from their jobs for writing about their experience with a stigmatic mental illness. Unfortunately, other members of the legal profession, such as employees of private law firms, are unable to self-disclose without risking their relationships with clients and employers. 1 convictions.3 Despite the Americans with Disabilities Act’s protection against discrimination for people with mental illnesses, many moral character and fitness exams ask about the applicant’s mental health. Depending on the state, bar examiners may make broad inquires into whether the applicant has ever been diagnosed or treated for a mental condition, or they may make more narrowly tailored investigations about whether the condition currently affects the applicant’s ability to practice law. For law students aware of potentially having to answer such questions about their mental health, this can have the unfortunate deterrent effect of not seeking otherwise needed psychological counseling and treatment. In 1994, responding to the passage of the Americans with Disabilities Act4, the American Bar Association issued a resolution recommending that state bars narrowly tailor the questions asked about an applicant’s mental health on moral character and fitness exams.5 At that time, the majority of states asked broad questions about whether the applicant had ever received treatment and counseling for mental health problems.6 In 2009 the author conducted a qualitative survey of the mental illness disclosure requirements in fifty-four United States jurisdictions, in order to assess if the aspirational goals of the ABA’s resolution have been met nearly fifteen years later. This article will discuss the author’s findings and recommend a future course of action. 3 National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements vii-ix (2009). Available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide.pdf. 4 Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. 430, 441 (E.D. Va. 1995). 5 H. Rutherford Turnbull, III, Robert A. Stein & Carl C. Monk, American Bar Association Bar Admissions Resolution: Narrow Limits Recommended for Questions Related to the Mental Health and Treatment of Bar Applicants, 18 MENTAL & PHYSICAL DISABILITY L. REP. 597 (1994) [hereinafter 1994 ABA Resolution] 6 Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. at 439-441. 2 I. THE 2009 QUALITATIVE SURVEY OF THE MENTAL ILLNESS DISCLOSURE REQUIREMENTS ON STATE BAR MORAL CHARACTER AND FITNESS EXAMS A. A History By 1970 the American Bar Association identified a nexus between a lawyer’s mental health and ethical behavior. Some scholars argue that this new concern with a lawyer’s mental illness arose from the New York City Bar Association’s statements made in 1969 explaining an increase in the number of lawyers with mental illnesses and recommending how these lawyers should be disciplined.7 As a possible result of these statements, the 1970 ABA Model Code of Professional Responsibility section concerning “Ethical Considerations” addressed this issue. 8 Ethical Consideration 1-6 explained that a bar applicant might be unfit for admission to the bar because of “mental or emotional instability.”9 The “Ethical Considerations” section served as aspirational goals for the ABA organization and its members. In response to the ABA’s statements, by the 1970s state bars began asking applicants about their mental health on moral character and fitness exams.10 The bar examiners often adopted broad questions that inquired about whether an applicant had ever been treated or diagnosed with a mental illness or disorder. By the mid-1990s thirty-two states asked broad questions.11 Thirteen of those states limited their questions to specific diagnoses that would affect the applicant’s ability to practice law.12 These conditions ranged from general inquires about any “mental illness” to more serious conditions such as bipolar disorder, a major 7 Michael J. Place & Susan L. Bloom, Mental Fitness Requirements for the Practice of Law, 23 BUFF. L. REV. 579, 580 (1973-1974) (quoting Committee Reports, 24 Record of N.Y.C.B.A. 31 (Supp. No. 7, Oct. 1969)). 8 ABA Model Code of Professional Responsibility, “Preliminary Statement” (1970). Available at http://www.abanet.org/cpr/mrpc/mcpr.pdf. 9 ABA Mode Code of Professional Responsibility, EC (Ethical Consideration) 1-6. Available at http://www.abanet.org/cpr/mrpc/mcpr.pdf 10 Ann Hubbard, Improving the Fitness Inquiry of the North Carolina Bar Application, 81 N.C. L. REV. 2179, 2199 (2003). 11 Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. at 439-440. 12 Id. at 439. 3 depressive mood disorder, schizophrenia, paranoia, or other psychotic disorder.13 In addition, eighteen of those states asked broad questions about whether an applicant had ever or within the past ten years been treated for a mental illness or disorder.14 The ABA took notice the American with Disabilities Act and the bar examiners’ broad questions about the applicant’s mental health. At the 1994 Annual Meeting, the ABA adopted a resolution recommending that state bars work to narrowly tailor the otherwise broad inquiries being asked about a bar applicant’s mental condition.15 The resolution identified the need to balance the bar applicant’s privacy rights against the bar examiner’s interest in protecting the public from unfit lawyers.16 The resolution proposed that questions about an applicant’s mental health be narrowly tailored. The ABA provided specific guidelines for how to achieve this. It recommended that the questions should focus on the applicant’s current conduct and behavior and whether this current conduct affects the applicant’s ability to practice law.17 Many state bars adopted these recommendations and amended the broad questions to focus on the applicant’s current behavior and whether it affected his or her ability to practice law. B. The 2009 Qualitative Survey No comprehensive survey of the mental illness disclosure requirements on state bar moral character and fitness applications has been undertaken in over twelve years.18 From February through May of 2009, the author conducted research primarily through the internet of the mental 13 Id. Id. at 440. 15 1994 ABA Resolution at 597. 16 Id. 17 Id. 18 Based on the research and information available to the author, the last comprehensive study of the mental illness disclosure requirements on moral character and fitness exams was conducted by Professor Stanley S. Herr in September 1996. Stanley S. Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities, 42 VILL. L. REV. 635, 646-655 (1997). 14 4 illness disclosure requirements in fifty-four jurisdictions, including each of the fifty states, the District of Columbia, Guam, the Northern Marianas Islands, and the Virgin Islands.19 The author’s analysis of this data showed a general trend toward narrowly tailored disclosures but identified eight states with overly broad disclosure requirements.20 Many states provide prefatory remarks about why and what kind of information they are seeking from the mental health disclosure section. Forty jurisdictions provide these “Preamble” sections. The “Preamble” often explains that the bar examiners are not interested in “situational counseling,” such as “stress counseling, domestic counseling, grief counseling, and counseling for eating or sleeping disorders.”21 The “Preamble” also explains to applicants that the bar examiners often grant licenses to applicants with mental health problems “who have demonstrated personal responsibility and maturity in dealing with mental health … issues.”22 However, the “Preamble” also admonishes applicants that they may be denied licensure for “a lack of candor” in their responses.23 Overall, the “Preamble” section is somewhat helpful in explaining the scope of the bar examiners’ inquiry. 19 Every state with the exception of Oregon, Nevada, and New Mexico, provides a copy of their moral character and fitness exam on the internet. The author was unable to locate the mental illness disclosure requirement for Puerto Rico. 20 It is beyond the scope of this article, but it is worth noting that each state uses different procedures to investigate candidates that affirmatively disclose their mental illnesses. It may very well be the case that states that have narrow disclosure requirements may require applicants who answer affirmatively to submit to a private hearing before the a special committee and be asked in detailed questions about their condition. For example, Jon Bauer provides three cases studies of the harsh treatment three applicants to the Connecticut Bar received upon disclosing their mental illnesses. Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. REV. 93 (2001). Further study of the actual procedures state bars use to investigate candidates who affirmatively disclosure their mental illnesses is necessary. 21 Twenty-one of the jurisdictions adopting the model form provided by the National Conference of Bar Examiners use this language. These jurisdictions include Alabama, Florida, Georgia, Guam, Iowa, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, North Carolina, North Dakota, Northern Marianas Islands, Ohio, Oregon, South Dakota, Tennessee, Vermont, Virginia, Washington, and Wisconsin. 22 Id. 23 Id. 5 1. “Currently” Language and the Problem of Vagueness A majority of states adopted the recommendations made in the ABA’s 1994 resolution and have worked towards narrowly tailoring their disclosure requirements. In 2009 the most common question asked by 39 jurisdictions is whether the applicant “currently” suffers from a condition or impairment that would affect his or her “ability to practice law.” The question generally takes the following form, “Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?”24 Although this question is more narrowly tailored than the language of broad disclosures which asks whether an applicant has “ever” suffered from a mental illness, this narrowly tailored inquiry presents its own set of problems and concerns. The primary problem with questions involving the applicant’s current fitness is how to interpret the term “currently.” Not all jurisdictions define the term “currently.” Of the thirtynine jurisdictions that have adopted the “currently” language, twenty-nine also provide a definition of the term. However, even in those jurisdictions that define the word, the meaning remains vague and confusing. Currently is most commonly defined as “…. recently enough so that the condition could reasonably have an impact on your ability to function as a lawyer.”25 It is not clear from this definition the scope of how recently the condition could have existed. California’s definition explains that “”Currently” does not mean on the day of, or even in the weeks or months preceding, the completion of the application. Rather, it means recently enough so that you believe that the mental condition may have an ongoing impact on your functioning as 24 25 See, for example, Alabama’s Question 26.A. See supra note 20. 6 an attorney.”26 The vagueness of this standard prevents an applicant from knowing if he or she is answering the question in good faith. In order to avoid the vagueness associated with the word “currently,” some jurisdictions state a specific time frame in which they are looking for mental conditions that could affect the applicant’s ability to practice law. In Minnesota, instead of using “currently,” the state asks if within the past two years has the applicant had a “mental, emotional, or behavioral illness or condition” that impairs his or her ability “to meet the Essential Eligibility Requirements for practice.”27 Similarly, in Rhode Island the state does not use “currently” but instead asks if within the past three years the applicant has “any condition or impairment … that in any way impairs your judgment or, if untreated, could affect your ability to practice law in a competent and professional manner.”28 Even though these questions provide a more concrete and certain standard for applicants, they are probably overly broad and run afoul of the ABA’s 1994 resolution. Maine and New Jersey ask questions that are outliers of the “currently” inquiry. In Maine, the question reads, “Within the last three (3) years have you had any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?”29 It is not entirely clear how this question is to be understood. On the one hand, it may be asking about any condition the applicant may have had in the past three years, but only if the condition currently 26 The State Bar of California, Moral Character Determination, Preamble to Question 13.1. Minnesota State Board of Law Examiners, Application For Admission to the Bar of Minnesota, Question 4.34. Available at http://www.ble.state.mn.us/App_fill-in_format_7-08_w_additions.doc. 28 Petition/Questionnaire for Admission to the Rhode Island Bar, Question 33. Available at http://www.courts.ri. gov/supreme/bar/Bar-07bar_application-B_and_C_private.pdf. 29 State of Maine Board of Bar Examiners, Application to Take Bar Examination, Question 26.A. Available at http://www.mainebarexaminers.org/MBBE-NA%2002.09.pdf. 27 7 affects the applicant’s ability to practice law. On the other hand, an applicant may misinterpret the question as requiring an affirmative disclosure of any mental condition she or he had in the past three years regardless of whether it currently affects his or her ability to practice law. The Maine question should be redrafted to provide more clarity for applicants. New Jersey’s disclosure is unique. Similar to other states, the second part of New Jersey’s Question XII-B asks whether the applicant currently suffers from an “emotional, mental, or nervous disorder” that would impair his or her ability to practice law.30 However, the bar examiners ask in the first part of Question XII-B if the applicant has been diagnosed or treated in the past year for a serious mental illness such as “schizophrenia or other psychotic disorder, bipolar or major depressive mood disorder.”31 The New Jersey questions make no inquiry into whether the condition has been ameliorated by medication or other treatments. The first section of Question XII-B appears to negate the first part of the question. Moreover, a person who is being successfully treated for such a serious condition is required to answer yes to the question in good faith. Bar examiners could make the questions about current behavior clearer by defining the term “ability to practice law.” Only nine jurisdictions explicitly define the term.32 This would help applicants identify the type of work that they are expected to be capable of performing. Unlike the “currently” word, the term “ability to practice law” has been defined more clearly and with greater precision in some jurisdictions. Of the nine states that define the term, six rely on 30 New Jersey, Committee on Character, XII. Health (2009). Available at http://www.njbarexams.org/app/ application.pdf. 31 Id. 32 The nine states that define “ability to practice law” are Alaska, California, Iowa, New Mexico, New York, North Carolina, Rhode Island, South Carolina, and Wisconsin. 8 the same definition of the phrase.33 In those jurisdictions, “ability to practice law” is defined in three prongs as: A. The cognitive capacity to undertake fundamental lawyering skills such as problem solving, legal analysis and reasoning, legal research, factual investigation, organization and management of legal work, making appropriate reasoned legal judgments and recognizing and resolving ethical dilemmas, for example. B. The ability to communicate legal judgments and legal information to clients, other attorneys, judicial and regulatory authorities with or without the use of aids or devices; and C. The capability to perform legal tasks in a timely manner.34 Unlike the vagueness associated with the “currently” definition, states that have adopted this definition of “ability to practice law” provide clear guidelines for bar applicants in determining whether they are required to disclose their mental health conditions. However, more work remains to be done to provide bar applicants with clear questions about their mental health that can be answered in good faith. 2. Overly Broad Inquiries Indiana, Michigan, Nevada, New Hampshire, Ohio, Texas, Utah and Wisconsin continue to ask overly broad disclosures similar to those that existed in the mid-1990s. Michigan and Indiana ask the broadest questions by inquiring into whether the applicant has “ever” suffered from various mental conditions. The Michigan disclosure is probably the broadest. It asks whether the applicant as “ever” been “treated or counseled … for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or ability to cope with ordinary demands of 33 Alaska, Iowa, New Mexico, Rhode Island, South Carolina, and Wisconsin use the same three-pronged definition For example, see Alaska Question 17 explanatory section. Available at https://www.alaskabar.org/BarExam Resources/ExamApplication.pdf. 34 9 life.”35 The question does not limit itself to only the most serious mental illnesses, but asks about any mental or emotional condition. Instead of asking about whether the condition affects the applicant’s “ability to practice law,” it asks a broad question about whether the condition affects the applicant’s “ability to cope with ordinary demands of life.”36 This question is not narrowly tailored to address an applicant’s current conduct and ability to practice law. Indiana’s inquiry is also very broad.37 Question 22 asks whether the applicant has been diagnosed or treated for “bi-polar disorder, schizophrenia, or any other psychotic disorders.”38 Although not specifically saying “ever,” the inquiry does not define a time limit. It can be inferred that the question is asking whether an applicant has ever had one of those conditions. Question 23 asks whether from the age of sixteen to the present has the applicant been diagnosed or treated for “any mental, emotional or nervous disorders.”39 This question is broad with regards to duration and the type of condition. The inquiry is not limited to the most serious mental illnesses, but instead asks about any mental disorder. Question 24 asks whether the applicant has any condition or impairment that would currently affect his or her ability to practice law. But this narrow question in relation to the two broad questions still makes Indiana’s disclosure requirement very broad. Nevada, Ohio and Texas ask overly broad questions by requiring the applicant to answer whether in the last ten years has he or she been diagnosed or treated for a serious mental illness 35 Michigan State Bar, Part XIII – General Fitness, Question 54b. Available at https://secure.ncbex2.org/php/ea/ view.php. 36 Id. Question 54a. 37 The American Civil Liberties Union of Indiana filed a class action lawsuit on behalf of an anonymous plaintiff challenging the mental illness disclosure requirement in Indiana as violating the Americans with Disabilities Act. Doe v. Individual Member of the Indiana State Board of Law Examiners, Pl.’s Complaint (July 7, 2009). Unlike similar lawsuits in which the plaintiff is often a law student, in this case the representative Jane Doe plaintiff is already a licensed attorney in Illinois. Leigh Jones, Lawsuit Claims Indiana Law Examiners Violate the ADA (July 9, 2009). Available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202432129430&slreturn=1&hbxlogin=1. 38 Indiana State Bar Application, Question 22 (on file with author). 39 Id. Question 23. 10 such as bipolar disorder, schizophrenia, paranoia or any other psychotic disorder.40 A serious mental illness that occurred within the past ten years does not necessarily reflect on current conduct and is not narrowly tailored. By asking about treatment or diagnosis instead of current conduct, this unfairly requires those applicants who successfully manage their conditions with medication and/or counseling to disclose their conditions. Instead of asking about only serious mental illnesses, New Hampshire asks a broader question by requiring the applicant to disclose any treatment or consultation in the past ten years for any “mental, emotional, or nervous disorder or condition.”41 Utah asks whether the applicant has been hospitalized or treated in the past ten years for a serious mental illness. Although the question does not ask about a diagnosis, it has the same effect by requiring disclosures from applicants who are being treated for such conditions. Despite many states that have worked towards narrowly tailoring their questions about the applicant’s mental health, too many states still retain overly broad disclosure requirement and should amend their questions to conform to the aspirational goals of the ABA’s 1994 resolution. 3. Best Practices Of the fifty-four jurisdictions surveyed, only four states ask no specific question about the applicant’s mental health.42 These states include Alaska, Arizona, Hawaii and Pennsylvania. Instead they use a catch-all question, usually placed as one of the last questions in the 40 Nevada Bar Application, Question 42 (on file with author); Ohio, Question 26 A. available at https://secure. ncbex2 .org/php/ea/view.php; Texas Board of Law Examiners – General Application, Question 11(a), available at https://efastdirect.ble.state.tx.us/CreateAccountGenApp.aspx. 41 Petition and Questionnaire for Admission to the Bar of New Hampshire, Question 12 and 13. Available at http://www.courts.state.nh.us/nhbar/petition.pdf. 42 The states that did not ask a specific question about the applicant’s mental illness or disorder included: Alaska, Arizona, Hawaii, Illinois and Pennsylvania. 11 questionnaire.43 Alaska’s Question 18 inquires, “Are you currently suffering from any disorder that impairs your judgment or that would otherwise adversely affect your ability to practice law? If yes, please explain.”44 Arizona asks a more general open-ended question, it reads, “Is there any other information, incident, or occurrence which is not otherwise referred to in your response to this Character Report which, in your opinion, may have a bearing, either directly or indirectly, either positively or negatively, upon your ability for the active and continuous practice of law? If yes, explain fully.”45 These open-ended question leave it up to the applicants to determine if a mental illness will affect their ability to practice law and requires disclosure to the bar examiners. If an applicant’s condition is successfully being treated with medication and he or she can perform the essential tasks of being a lawyer, then the applicant can confidently answer “no” to such a question in good faith. These states and their general catch-all questions should serve as a best practices model for other states II. RECOMMENDATIONS FOR FUTURE ACTION The question remains of how best to address the problems associated with broad disclosure requirements and vague inquires involving whether a condition currently affects an applicant’s ability to practice law. Although, in the past, some students have filed lawsuits based on the American with Disabilities Act against state bars in order to avoid answering questions 43 Illinois comes close to being a model state, but Question 52 asks “Have you ever been declared incompetent or had a conservator appointed to help conduct your affairs?” The question places no time limit on such a situation. This situation also often arises when a person is hospitalized for a mental illness. This question might be an indirect way of asking about whether an applicant has been hospitalized. Available at https://www.ibaby.org/confirms electapplication.action?id=1. 44 Application for Admission to the Alaska Bar Association, Question 18. Available at https://www.alaskabar.org/ BarExamResources/ExamApplication.pdf. 45 Arizona Character Report, Question 35. Available at http://www.supreme.state.az.us/admis/pdf /Character%20Report%20804.pdf. 12 about their mental health46, this method may prove too adversarial to result in positive change. First, the student’s lawsuit is not always successful. Second, students who file lawsuits against state bars risk high exposure. Ironically, students who sue state bars will end up through the public process of a lawsuit being required to reveal all their private mental health information that they worked so hard to keep a secret. Ultimately, these lawsuits are pyrrhic victories. Perhaps a more fruitful method to advance change would be through an advocacy campaign involving the legal and mental health communities. In recent years, law students with disabilities have organized to form the National Association of Law Student with Disabilities.47 However, law students are probably ill-suited to advance change against state bars because of the power dynamics involved with the relationship. The student is in the vulnerable position of seeking a license from the bar examiners, while the bar examiners are in the powerful position of either granting or withholding the student’s license to practice law. An advocacy campaign that focuses on seeking a conversation and dialogue with bar examiners might prove more positive. Such an advocacy campaign would ideally be made up of licensed attorneys both with and without a disability but sympathetic to the cause, law professors, law school deans and deans of student affairs, and psychiatrists and other members of the mental health community. Law professors, law school deans and deans of student affairs are in a particularly good position to help address these problems because they work on the front lines with law students who experience mental health issues. Once a coalition is formed, members should seek meetings with the executive directors of state bars to discuss and work with clarifying the “currently” definition and amending broad disclosures. 46 47 Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. 430. http://www.nalswd.org/history.html. 13 CONCLUSION The aspirational goals of the ABA’s 1994 resolution asking state bars to narrowly tailor their mental illness disclosures have not been fully achieved. Too many states ask broad questions about whether an applicant has suffered from a mental health related condition. The adoption of the “currently” language has led to a vague, confusing, and sometimes misleading standard that provide students with misinformation about what conditions must be disclosed. In order to address these problems, an advocacy campaign should be undertaken led by attorneys, law school deans and faculty and the mental health community. The coalition should seek a dialogue with the bar examiners to address these problems and work towards clarifying and amending the questions as needed. Not only might these changes be beneficial for law students, but it may also help change the tone of the conversation regarding mental health issues and the legal profession. 14
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