Dangerous and discriminatory: Mental health questions on bar applications – LAWYER – Commentary

I’m tired of watching my students suffer. Every year I have law students tell me they are afraid to seek advice because they think it will hurt their chances of being admitted to the bar. Their fears stem from two questions on the bar application that ask about mental health and substance abuse.

All State Bars should immediately eliminate questions like these. In addition to preventing potentially life-saving treatment, the questions are confusing, discriminatory and serve no legitimate purpose. Many state bar associations have already removed the questions without any problems.

My students are not the only ones harmed. Research confirms that the fear and deterrent effect of these issues is widespread: 42 percent of law students in one study said they thought they needed mental health intervention, but 45 percent of them would not seek help because they thought , that receiving aid would jeopardize their ability to be accepted into the college.

It is a matter of life and death. Nearly a third of law students have seriously considered attempting suicide in their lifetime. Suicides are rarely reported, and motivating factors even less so. And yet we know that many law students have died by suicide, in part because they were deterred from seeking help by applying to the bar. Without immediate action, there will be more.

Asking about mental conditions violates the Americans with Disabilities Act (ADA). In a 2014 settlement with Louisiana, the Department of Justice clarified that the state bar cannot ask about a diagnosis except to the extent it relates to behavior. Most countries’ current mental health issues fall on the wrong side of that line.

The Bar Application asks: Do you have a condition that “in any way affects your ability to practice law”? Most psychiatric diagnoses require some functional impairment, and almost any impairment can “in some way” affect a person’s ability to practice law. Therefore, the current issue is not an improvement over previous iterations that have already been found to violate the ADA.

The “note” accompanying the mental health issue makes matters worse. Even if the applicant’s condition is completely under control, they should still disclose the condition if there is a chance it will affect them in the future. Specifically, the memo asks whether a condition “could reasonably affect your ability to function as an attorney.” Such a vague and speculative question is not only discriminatory but also a trap. You may think your diagnosis won’t have a significant adverse impact, but examiners may disagree.

Shortly after the DOJ’s settlement with Louisiana, the American Bar Association in 2015 adopted a formal policy calling on state bar associations to “remove from applications required for admission to the bar any questions that ask about mental health history, diagnoses, or treatment , and instead use questions that focus on behavior or conduct that impairs the applicant’s ability to practice law in a competent, ethical, and professional manner.” Additional questions about the source of the problem behavior are permitted. The clear intent of the ABA’s policy is to limit inquiry to conditions that have led to specific misconduct in the past, not conditions that might someday affect conduct in the future.

Many state bar associations have recognized that mental health issues do more harm than good. As of 2019, thirteen states do not ask questions about mental health. Eleven of these states also had no questions about substance abuse. These states are geographically and politically diverse, ranging from Mississippi to Massachusetts. Momentum is building: Michigan and New York dropped their questions in 2020; Texas dropped its questions in 2022. There is no suggestion that attorneys in those states perform worse than attorneys in other states. This is not surprising given that research has found no link between a mental health diagnosis and the ability to practice law.

The only reason we continue to ask the mental health questions is the belief (no doubt sincerely) that people with mental illness are less fit to practice law. Of course, it is true that a mental health crisis can lead to an ethical breach. But it can also happen for a thousand other reasons. Mental health cases may be more prominent but do not occur at a higher rate: “there is no empirical evidence to show that lawyers who have received psychiatric treatment have a higher incidence of subsequent disciplinary action by the college or other regulatory body compared to those who had no such treatment. Another study directly compared states with and without mental health questions and found no difference in attorney discipline rates. In short, mental health issues reflect stigma, not reality.

September is Suicide Prevention Month. Now is the perfect time for all states to remove mental health and substance abuse questions from their application forms. Questions produce the exact opposite effect of expectations: by deterring necessary treatment, questions make prospective lawyers less fit to practice law. For some law students, the result is suicide. Licensing authorities can save lives simply by deleting these questions.

Fredrick E. Vars is the Ira Drayton Pruitt Senior Professor of Law at the University of Alabama School of Law. Specializes in mental health law. Prof Vars has recently written on crisis response and co-authored a book with Ian Ayres entitled Weapon of Choice: Combating Gun Violence While Respecting Gun Rights.

Suggested quote:Frederick E. Vars, Dangerous and Discriminatory: Mental Health Issues in Requests for Legal Protection, JURIST – Academic Commentary, Sept. 9, 2022, https://www.jurist.org/commentary/2022/09/frederick-vars- mental-health- questions bar/.

This article was prepared for publication by Haley Behal, JURIST Commentary Associate Editor. Please direct any questions or comments to her at [email protected]

The opinions expressed in JURIST Commentary are solely the responsibility of the author and do not necessarily reflect the views of the editors, staff, donors of JURIST, or the University of Pittsburgh.

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