15 February 2014

Bar Application Questions re.: Mental Health may be Federal ADA Violation

As in many states, persons applying to take the Tennessee bar exam get are questioned about their past history of mental illness.  The Department of Justice is raising the question as to whether these questions are overly broad and ultimately violate the Americans with Disabilities Act (ADA).

Link: DOJ says bar officials violate ADA by asking applicants too much about their mental health

Comment: I think the DOJ is taking the right approach with this.  In looking at my own copy of the Bar Application, at least one question raises significant concern--

26 (A). Do you currently have any condition or impairment (including, but not limited to . . . 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?  (Yes/No)  

Boy, that's awfully vague.  Now to a limited extent, I can understand questions about specific illnesses, such as about schizophrenia, that have the potential to impact one's perceptions of reality.  There are other questions regarding past alcohol or substance abuse, and I think those questions are valid as well, on the theory that a person who abused substances in the past could be at risk for such conduct in the future.  But this Question No. 26A can encompass just about anything.  A person facing an a pressing situation, such as the loss of a loved one, could likely be facing acute depression versus adjustment disorder.  A person witnessing a bad event, such as a robbery at a convenience store, could potentially face Post-Traumatic Stress Disorder (PTSD).  A person who was abused or molested as a child: same thing.  And a significant percentage of school-aged children get diagnosed--some would argue over-diagnosed--with attention deficit disorder.  Moreover, the question asks the subject to act as the psychologist and foresee whether the condition--whether diagnosed or not--could progress to the point where it could somehow or in some way change his or her ability to practice law.

I have a concern about that.  To the extent the question encompasses the entire universe of potential or actual mental illness, whether acute or chronic, then it unfairly singles out all forms of mental illness, whether benign or serious--against all other illnesses that could change one's ability to practice law.  And here's what I mean.  A person who has untreated hypertension has a medical condition--now, notice, not a mental condition--that could affect his ability to practice law.  How?  The hypertension could lead to a stroke.  Once the stroke happens, it would be impossible to predict one's residual level of brain function.  A person who has epilepsy--a neurological disorder that is again not a mental illness--could have episodes that are temporarily overpowering, even with treatment.  Sleep apnea, if untreated, may lead to chronic problems with alertness, or in more extreme cases, residual effects from hypoxia.  And a person with diabetes may be at increased risk of cardiovascular or neurological problems as well.  Incidentally, all of these medical conditions, depending on severity, could trigger depression and/or anxiety as well.  (See also this perspective from an attorney with Asperger's Syndrome, which can trigger seemingly many wrong diagnoses.) 

Now we say that none of the people with these medical conditions should be singled out for extra scrutiny, and rightfully so.  We would say that questions about a person's medical conditions are irrelevant to the overall question about the individual's trustworthiness, fitness or overall ability to practice law.  What do we say, then, about the law student who seeks psychological aid during a moment of acute distress?  Or the PTSD example I mentioned above?  Does the individual answer "no" on the theory that the condition is now well controlled, predicting that it will stay that way well in the future, or does the person answer "yes" on the theory that even the slightest possibility of a complication or relapse requires an affirmative response, lest (s)he give a false or misleading answer?  And suppose a person was in denial about whether he or she has a mental illness.  Wouldn't this line of questioning discourage law students and prospective lawyers from seeking help on the first place, on the theory that they are now generating highly sensitive medical records for bar examiners to review?

The last question is not meant to be far-fetched.  According to the American Bar Association, lawyers are more likely to experience mental illness and even commit suicide than the general population.  In fact, as an entire profession, attorneys are #4 in a list of professions where its practitioners are most likely to commit suicide.  We need to encourage, rather than discourage, this type of aid.  Thus, bar application questions, such as No. 26A, are not part of the solution.  They are part of the problem.

The DOJ letter goes on to explain that an individual's prior behavior, rather than a mental health diagnosis or treatment, is the best predictor of future success in law practice.  Nearly all of the remaining bar application questions, in fact, relate to prior behavior in one form or another, whether it be legal misconduct, or financial trouble, or problems at work and school.  To me, this is not unreasonable.

Viewed in this way, I think the solution is clear.  For I would not propose to bar all questions regarding mental health, but only those items which have actually caused problems with conduct in the past.  If a person once had a problem with alcohol or substance addiction, there had to be a pattern of conduct consistent with the condition.  If a person had a form of schizophrenia that was serious enough to cause actual lapses in judgment, perhaps it is reasonable to explore it further.  On the flip side of the coin, if a person with Asperger's has been able to adapt to his condition--and many have--when why it is necessary to go through his medical records?  And if a person with depression sought help and is well now, it seems to be this is the very opposite of the person we want to go after.

In closing, I have no quarrel with the general proposition that applicants to a state's bar are subject to background checks and other forms of heightened scrutiny, given the trust provided to them.  But the scrutiny needs to be reasonable and adequately tailored to the need.  Our Question No. 26A seems to be neither.  --SJR

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