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Mental health inquiries get fresh look from the ABA

September 9, 2015

Indiana State Board of Bar Examiners is again reviewing its mental health questions in light of new guidance from the American Bar Association, but at this point, the board has no plans to make changes to the inquiries.

The renewed attention is coming after the ABA House of Delegates approved a resolution that addressed the questions asked as part of the character and fitness evaluation of bar admission candidates. The national association is urging state bar licensing entities to focus their inquiries about mental health on the candidate’s conduct rather than diagnoses and treatment.

Adopted during the 2015 annual meeting, the new resolution replaces the ABA’s 1994 policy regarding mental heath questions.

skolnik Skolnik

The Indiana board is aware of the ABA’s endorsement but has not discussed altering its character and fitness review, according to Bradley Skolnik, executive director of the board.

“The board continues to monitor (the situation) very closely but feels very comfortable that the questions presently being asked are acceptable,” he said.

Before the ABA House of Delegates, advocates for the revised policy said that many states ask bar admission applicants about their medical conditions instead of their behavior. Questions, they maintained, should focus on how they act and perform their duties instead of their medical condition.

Although former ABA presidents and deans of law schools spoke in support, the new resolution was not unanimously adopted. Some opponents see the change as vague and unnecessary.

One opponent, Hulett “Bucky” Askew, raised concerns that the resolution was prohibiting legitimate inquiries. Even the revision to the resolution, which now allows bar admissions to make a “reasonable and narrowly-tailored” probe into an applicant’s mental health history, did not ease Askew’s worries.

Askew, the former director of the Office of Bar Admissions for the Supreme Court of Georgia, has served as an ABA consultant on legal education and is currently a board member of the National Conference of Bar Examiners.

He noted the NCBE’s template of character and fitness questions includes one that takes a step beyond conduct and behavior. The question enables the applicant to self-disclose by asking if he or she has any condition or impairment (including substance abuse or mental disorder) that could affect his or her ability to practice law in a professional, ethical and competent manner.

The ABA’s advice that conduct be the precursor for questions about mental health may prevent bar admission authorities from finding potential problems, Askew said. Even mental health professionals disagree about which behaviors are predictors of mental illness. And the resolution does not give enough guidance for admission authorities to know what they are able to ask, he said.

brugnaux-barbara-mug.jpg Brugnaux

In Indiana, the board of bar examiners keeps its attention on conduct and only asks about diagnosis if the applicant’s actions indicate a problem, said board president Barbara Brugnaux. The board may then request medical information and send the individual to the Judges and Lawyers Assistance Program for an evaluation.

Brugnaux said the board’s primary job is to protect the public from bad lawyers. But it has to balance that with the need to be sensitive to bar admission candidates who have struggles with mental illness or addiction. The drug or psychological problem is not an issue for the board when the individuals show they understand their illness and are treating it appropriately, she said.

“Everyone who has struggled to go to law school deserves a fair opportunity to be admitted to the bar,” Brugnaux said.

Not getting help

In its report on the new resolution, the ABA Commission on Disability Rights and the ABA Section of Individual Rights and Responsibilities described the questions about applicants’ mental health diagnosis and treatment as “unduly intrusive.” In addition, the inquiries were not only ineffective in determining an individual’s fitness to practice law, but also were likely to deter many people from seeking counseling and treatment.

Lisa McElroy, associate professor of law at Drexel University Thomas R. Kline School of Law, has been advocating for all mental health questions to be dropped from bar admissions. She co-authored an article for Slate in 2014 where she described the inquiry as “very invasive,” an “alienating process” and “deeply humiliating.”

McElroy echoed the ABA’s concern that law students will not seek treatment. Those who do get help for their mental health issues are targeted by the admission questions and then punished, she said.

Askew, too, does not see the resolution as addressing the problem of treatment. Students, he said, have no assurances that getting treatment will not interfere with getting admitted to the bar. The result, he continued, will be that students do not get help for their mental health troubles and the untreated malaise could grow into a bigger problem.

Indiana’s questions

Indiana made changes to the mental health portion of the character and fitness application following a 2011 federal court order that found one question was “overly broad” and violated the Americans with Disabilities Act.

The question asked, “From the age of 16 years to the present, have you been diagnosed with or treated for any mental, emotional or nervous disorders?”

This, the U.S. District Court for the Southern District of Indiana held, was capturing a broad swath of information related to less serious mental and emotional problems. Furthermore, in reviewing the number of applicants who had answered affirmatively versus those who were referred to JLAP, the court found the responses contained a significant number of false positives.

Subsequently, the board modified the question to limit the inquiry to whether in the last five years the individual had been diagnosed with or treated for a mental health condition.

The state’s bar admission questions were again reviewed in 2014 when the U.S. Department of Justice found Louisiana’s bar admission practices violated the ADA. Indiana’s admission process was similar to the Pelican State’s, but the Justice Department never sent a letter or found a violation.

Unlike Louisiana, Indiana keeps private the names of candidates who are given conditional admittance and does not require attorneys to publicly disclose. Conditional admission, Brugnaux said, is how the board deals with some applicants who do not represent a danger to the public but may need a little more monitoring.

Conduct and diagnosis are complicated issues, Brugnaux said. The ultimate decision on how the whole situation will be handled is up to the Justice Department. In the interim, the Indiana board will continue to discuss the matter and give applicants a great deal of consideration and discretion.•

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