The Outrageous, Dangerous Questions State Bar Examiners Ask Would-Be Lawyers

Health and medicine explained.
Aug. 7 2014 8:08 AM

The Worst Part of the Bar Exam

It’s time to drop mental health questions.

Law Grads.
Congratulations. Now get ready to have your privacy violated.

Image courtesy of Shutterstock

Last week, all across the country, tens of thousands of law school graduates endured an agonizing rite of passage: the bar examination.

As if sitting for two or three full days in a large room full of stressing, sweating, swearing candidates weren’t bad enough, at least 40 percent of these candidates were also struggling with another challenge: gaining admission to the profession despite having a psychiatric disability.

In fact, even though the Americans With Disabilities Act has been the law of the land for 24 years, most state bar examiners—agencies that serve under each state’s highest court—still ask bar applicants about their mental health histories. It would be illegal for an employer to do so, but the state can. And it does. Adding to the stress, the state does not then tell the applicants how the information they provide will affect their chances of obtaining licenses to practice law.

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The questions aren’t just about conduct that might impair a person’s ability to practice law, such as refusing to seek treatment for psychotic episodes. Instead, the agencies ask about a wide range of medical history. They ask (we offer just a few examples) whether you have ever “had out-patient treatment, for ... major depressive disorder” (Wyoming) or “Within the past five (5) years, have you been diagnosed with or have you been treated for any of the following: ... bipolar disorder or manic depressive mood disorder, major depression ... or any other condition which significantly impaired your behavior, judgment, understanding ... or ability to function in school, work, or other important life activities?” (Colorado). Most states have similar inquiries on their questionnaires for bar applicants; the standard form provided by the National Conference of Bar Examiners includes them, too.

Remember that these soon-to-be-lawyers have already proved themselves more than capable of enduring the intellectual and occupational rigor of law school—and succeeding.

But despite your success, if you are a law student and you answer in the affirmative to having been treated for depression, for example, in many (if not most) states, you must provide the state access to your medical records and the names of all of your doctors. As you might imagine, this is a very invasive and alienating process for students with disabilities.

Here’s the stark reality of being a law student who has ever—and we emphasize ever—received mental health treatment. These law school students can choose privacy, in which case the $150,000 to $200,000 they have likely just spent on law school is wasted (and nondischargeable in bankruptcy). If they do not respond to these mental health questions, they can never acquire a license to practice law, or at least they are barred from practice until the state bar examiners do the right thing and drop the questions from their applications. (Lying is not an option because law students learn from their very first day of legal studies that the profession holds them to a duty of candor. If they ever lie about anything, they're told, the bar will find out, and they might lose their license to practice.)

Or the law students can choose to answer invasive questions and disclose highly personal information. They can decide to allow the bar examiners to break the law that these candidates will swear to uphold. They can choose to subject themselves to potential discrimination of the highest form, revealing their private medical history to senior members of the profession in the state where they will soon be practicing law.

This policy is, at the very least, deeply humiliating.

There are a number of risks inherent in requiring law students to disclose their medical histories to the faceless boards of law examiners. There is the risk that exposing themselves to strangers will heighten their mental health symptoms, making those with anxiety disorders more anxious (“I might not be admitted to the bar!”) and those with depression more depressed (“I must not be cut out to help people with their legal problems.”) There is the risk that, in a state like Texas, which requires students to begin their bar application during the first year of law school, students with psychiatric disabilities will choose to forgo legal studies to avoid the danger of disclosing their private information to a large group of strangers.

The most dangerous risk of all is that law students with psychiatric disabilities will avoid treatment out of fear of having to report it to the bar examiners and consequently being denied a license to practice law.

This risk highlights the most striking problem with these “fitness” questions: They target students who have sought treatment—an exercise of good judgment—and punish them for it.

There is good news. The Department of Justice’s Civil Rights Division recently stated formally that the mental health questions on bar fitness applications violate the Americans With Disabilities Act. The DOJ declared that these mental fitness questions use “stereotypes and assumptions about the disabilities and are not necessary to assess applicants’ fitness to practice,” encouraging states to focus on conduct rather than mental health status. The DOJ’s declaration is not enforceable on the states, but it is a clarion call.

Lawyers serve society by helping people with problems. Any number of a lawyer’s clients may themselves have psychiatric disabilities. According to the Bureau of Justice Statistics, for example, between half and three-quarters of American prison inmates have mental health issues. Common sense dictates that lawyers who can empathize may be of particular help to these clients.

Is there a way to protect clients from lawyers whose psychiatric disabilities make them truly incompetent to practice law? Certainly. Were a lawyer to experience a psychotic episode that incapacitated her, for example, the state bar might then step in. But there is simply no basis for screening fully functioning bar applicants for some hidden danger that most probably will never emerge, especially in this high-achieving population.

It is time for the legal profession to stop stigmatizing bar applicants for their disabilities and for exercising good self-care.

Lisa T. McElroy is an associate professor of law at the Drexel University Earle Mack School of Law. Follow her on Twitter.

Katie Rose Guest Pryal is a clinical associate professor of law at the University of North Carolina School of Law in Chapel Hill. Follow her on Twitter.

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