Dangerous and Discriminatory: Mental Health Questions on Bar Applications
Dangerous and Discriminatory: Mental Health Questions on Bar Applications

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

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

My students are not the only ones harmed. Research confirms that the fear and deterrent effect of these questions are widespread: 42 percent of law students in one survey said they felt they needed mental health intervention but 45 percent of those would not seek help because they believed getting help would threaten their ability to be admitted to the bar.

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

Asking about mental health conditions violates the Americans with Disabilities Act (ADA). In a 2014 settlement with Louisiana, the Department of Justice clarified that a state bar cannot ask about a diagnosis except to the extent it relates to conduct. Most states’ current mental health questions 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 nearly every impairment could “in some way” affect one’s ability to practice law. The current question is therefore no improvement over previous iterations that have already been found to violate the ADA.

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

Shortly after the DOJ settlement with Louisiana, the American Bar Association in 2015 adopted a formal policy urging state bar associations “to eliminate 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 conduct or behavior that impairs an applicant’s ability to practice law in a competent, ethical, and professional manner.” Follow-up questions about the source of the problematic conduct are allowed. The clear intent of the ABA policy is to limit the inquiry to conditions that have led to specific misconduct in the past, not conditions that might someday affect conduct in the future.

Many state bars have recognized that mental health questions do more harm than good. As of 2019, thirteen states asked no questions about mental health. Eleven of these states had no questions about substance abuse either. These states are geographically and politically diverse, running the gamut from Mississippi to Massachusetts. Momentum is building: Michigan and New York eliminated their questions in 2020; Texas dropped its questions in 2022. There has been no suggestion that lawyers in these states perform any worse than lawyers in other states. This is not surprising given that research finds no connection between mental health diagnosis and the ability to practice law.

The only reason to continue asking the mental health questions is the belief (no doubt sincere) that people with mental illness are less fit to practice law. It is of course true that a mental health crisis can lead to an ethical violation. But so can one thousand other causes. The mental health cases may be more salient, but they do not occur at a higher rate: “there is no empirical evidence demonstrating that lawyers who have had psychiatric treatment have a greater incidence of subsequent disciplinary action by the bar or by any other regulatory body in comparison with those who have not had such treatment.” Another study directly compared states with and without mental health questions and found no difference in the rate of attorney discipline. In short, the mental health questions reflect stigma, not reality.

September is Suicide Prevention Month. It is the perfect time for all states to eliminate the mental health and substance abuse questions from their bar application forms. The questions produce precisely the opposite of their intended effect: by deterring needed treatment, the 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, Sr. Professor of Law at the University of Alabama School of Law. He specializes in mental health law. Prof. Vars has recently written about crisis response and has co-authored a book with Ian Ayres titled “Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.”

 

Suggested citation:Frederick E. Vars, Dangerous and Discriminatory: Mental Health Questions on Bar Applications, JURIST – Academic Commentary, September 9, 2022, https://www.jurist.org/commentary/2022/09/frederick-vars-mental-health-questions-bar/.


This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org


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