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

Feb 12, 2014, 04:30 pm CDT

Comments

Heh.  Holder needs a bigger pool of mentally addled lawyers from which to draw new minions.

By B. McLeod on 2014 02 12, 7:34 pm CDT

Really McLeod?  I would think that a visit to the various ABA conferences would provide copious numbers of candidates.

By W.R.T. on 2014 02 12, 8:41 pm CDT

But they all have BigLaw jobs, and aren’t going to go slumming at DOJ.

By B. McLeod on 2014 02 13, 12:06 am CDT

Um, mental health is not a BFOQ for being an attorney?

By NoleLaw on 2014 02 13, 9:05 am CDT

I would have hoped that the protection of clients would trump any ADA concerns.

By sullivan2day on 2014 02 13, 1:39 pm CDT

Lawyer review of mental health issues described here amounts to practicing medicine without a license, unless the lawyer holds a medical degree specializing in psychiatry and has a current license to practice psychiatry. 

“A psychiatrist is a physician who specializes in psychiatry. A psychiatrist specializes in the diagnosis and treatment of mental disorders. Psychiatrists are medical doctors who must evaluate patients to determine whether or not their symptoms are the result of a physical illness, a combination of physical and mental, or a strictly psychiatric one….”

http://en.wikipedia.org/wiki/Psychiatrist

By practicing medicine without a license on 2014 02 13, 6:02 pm CDT

It’s hard enough dealing with wacko divorce clients…

By Goldcoaster on 2014 02 14, 6:29 am CDT

@ B.McLeod, W.R.T. and NoleLaw

I agree with you guys… and would only add… the ‘Dept of Just Us’ needs to lay off the spiked ADA Kool-Aid and force remedial Jurisdiction 101 down the proverbial throats of its bloated body of government ‘slummers’ riding the cart and feeding at the public trough. I’m jus’ sayin’... these clowns need to learn the distinct grounds test establishing state jurisdiction or federal jurisdiction—especially in federal tax cases… See Burnet v. Brooks, 288 U.S. 378, 399 (1933). Probably wouldn’t hurt the district court judges either…

By SeekTruth on 2014 02 14, 7:43 am CDT

@6 because the bar couldn’t possibly have hired professionals to review these issues?

This is old news anyway.  The Federal Court in Miami prohibited similar questions years ago.  Ellen S. v. Fla. Bd. of Bar Examiners, 859 F. Supp. 1489 (S.D.Fla. 1994).  The Florida Bd had to rewrite the questions essentially asking people to self-report if they had engaged in psychotic behavior with a limited time prior to filing for admission, essentially making the questions feckless.  I’m surprised it took so long for Obama’s DOJ to find another windmill to tilt at.

By FlaJur on 2014 02 14, 8:34 am CDT

I think it’s an area where you do have to be sensitive, both to the applicant and the ADA, but the law reporters are riddled with examples of attorneys going off the rails with booze and untreated depression, bipolar disorders, etc.  Their clients are victims, too.  So this is not an area where focused questions are not directly tied to known areas of lawyer misconduct.  A bar admissions agency should be able to ask relevant inquiries and do reasonable follow ups when there are indications of current, serious problems that could prevent a prospective attorney from performing core legal functions.

By Reality Check on 2014 02 14, 9:18 am CDT

I completely agree with the DOJ’s assessment. As someone with bipolar disorder who had a successful career for 7 years before choosing to attend law school, I was still forced to attend an investigatory hearing based on a label, with no consideration of my history, which held up my licensure and cost me a job offer for absolutely no reason. In addition, I had to PAY FOR this hearing ($180). I had to pay for a hotel room and gas to attend this hearing, and the hearing was perfunctory anyway. Given that my doctor never had any concern for my ability to practice law, these questions served no purpose. The questions played on stereotypes and outdated notions of mental illness and the individuals who took part in my hearing were completely uninformed as to mental illnesses. It was an unneccesary burden which delved into my medical history for no purpose. I can guarantee that I am more sane and stable than 90% of attorneys currently practicing law, but a label caused me to undergo extreme scrutiny and a rather intimate look into my medical history. All the Bar needs to do is ask if a mental health diagnosis has been made and then ask for a mental health professional’s opinion as to whether there is any reason to be concerned about the individual’s ability to practice law. Anything beyond that is a violation of the ADA.

Also, I’m rather appalled my the comments to this article. Please, learn some sensitivity and educate yourselves about mental illness. It’s not all Haldol and straight jackets.

By TheSaneOne on 2014 02 14, 9:27 am CDT

Many years ago I blew the whistle on a state agency while attending law school.  When I returned to work after being suspended without pay for 4 months, I spent two weeks with a literally empty desk. I was not assigned any work. The only book I was permitted to read—after arguing it was part of my job—was the California Insurance Code. My every act I was scrutinized and every person who talked to me was interrogated.  The stress put my at rest pulse rate at 120 (we didn’t have blood pressure devices in those days) so I was put on medication by a psychiatrist.  (His primary concern was that I didn’t show enough concern that I might be killed for blowing the whistle.) The auditor general sustained 9 of the 10 charges I made in a 1200 page report.
I passed the bar and got a letter telling me I was being investigated on moral turpitude grounds because the agency had accused me of several things, including misappropriate of $7.65 for mileage.  When all of the evidence evaporated—the $7.65 was authorized and I did not take any confidential documents to the meeting with my legislator—the agency revealed my medical records to the State Bar. 
When the bar started investigating me, I asked my ethics professor for help.  I aced his class and he personally invited me to attend his seminar—also an A.  His primary criticism was that I was too tough on lawyers. He agreed and represented me pro bono.
When the bar shifted gears, the professor asked me 2 questions: “Do you want to spend years appealing the impropriety of the bar sticking its nose into the unlawful disclosure of your psych records?” and “:Are you crazy?” I answered “no” and “no”.  I had objected to having my sanity determined by a panel of high rise lawyers , the prof got the Bar to stipulate to a psychiatric evaluation provided I could tape record it.
I spent a couple of hours with the shrink. A few weeks later I received a copy of the 7 or 8 page letter sent to the bar. The letter discussed the usual father conflicts, sibling rivalries, my requesting a court martial to challenge an unlawful order, and my unwillingness to compromise my principles when I believed I was right. The last page was the the conclusion, saying something like, “On the other hand, I found no evidence that his practice of law would be affected and, in fact, he is the kind of lawyer I would want to represent me.” 
After I was admitted my girlfriend gave me a T-shirt “Certified Sane State Bar of California”. As a result of that experience I began practicing civil rights and employment law.

By OldePhartte on 2014 02 14, 9:43 am CDT

You spend a boatload of moeny to have a chance a very small chance to make enough to pay it back.  What questions do you need sounds like res ispa loquitor to me

By John Davidson on 2014 02 14, 10:20 am CDT

But it is “just fine” that the CIA entrance asks several questions about a potential employee’s mental health, including asking, several times, if they “hear voices others do not hear?”  .... to which question I verbally said out-loud:  “How do I know if others do not hear them?”

By Prior Fed Employee Applicant on 2014 02 14, 10:48 am CDT

PMWL,

No, this is not practicing medicine without a license. The Louisiana Bar was not making a diagnosis of a psychiatric illness, just inquiring about and making decisions based on self-reported psychiatric diagnoses (likely with additional penalties if you don’t disclose something “required” to be disclosed. I’m happy the DOJ has intervened in this issue - it is an issue that comes up from time to time in my practice of state level administrative law with healthcare providers.

And the proposed solution is not practicing medicine, either - there is no “diagnosis” made, just an evaluation of conduct. And while that evaluation of conduct can raise troubling issues as proof is sometimes lacking of conduct alleged, that doesn’t make the act of inquiring into potentially troubling conduct off limits based on any perceptions of making a decision based on medical information is practicing medicine.

By Marc on 2014 02 14, 11:13 am CDT

I haven’t researched it as have the DOJ lawyers, but isn’t there at least a principle we can infer from the ADA that certain disabilities may make you unfit for the job you’re seeking?  Could you not ask cab driver applicants if they’re blind?

By Mac on 2014 02 14, 11:14 am CDT

This sounds like a Catch 22:  You can’t be a lawyer if you have mental health issues, but the fact that one would seek to become a lawyer in 2014 is, by definition, insane.

By Just Saying.... on 2014 02 14, 11:43 am CDT

Interesting since the FBI background check to work at DOJ requires the applicant to answer questions about their mental health background.

By Exile on 2014 02 14, 12:02 pm CDT

Got bored with reading the comments of folks parading their ignorance about mental health issues (not to mention the law) so I’ll just say that I’m truly amazed that folks that often have very meaningful insights and/or humorous contributions could produce such mindless dribble.  No one would suggest that someone with cancer or diabetes wasn’t fit to get a license but many of you are evidently willing to apply ignorant stereotypes to justify denying a license even though at some point cancer and diabetes can be sufficiently debilitating to seriously impair an individuals ability to practice.  The protection of the public is an important concern but just as the regulating body can intercede when necessary to protect the public from attorneys struggling with substance abuse or assist when someone unexpectedly suffers a stroke or heart attack it can adequately perform its necessary role for those struggling with mental health concerns.

By Rob on 2014 02 14, 12:12 pm CDT

@19 - Well said.
And to the others, especially #15 - seriously? You think any state bar association with this “insane” rule is not evaluating “perceived” conduct (past or future) based on an applicant’s disclosure of very personal & private information? And just how private do you think that information will be retained? Not likely at all.
If you graduate from law school & pass the bar exam what flipping difference does it make if someone was once or currently being treated for a mental health issue - which FYI can be anything from mild depression to very serious mental health problems. Further, just how likely is it that someone with “serious” debilitating mental health issues even graduates from law school??
If a practicing lawyer shows signs of impairment by drugs, alcohol or mental health issues - that is exactly when the local/state bar association is suppose to step in & do its job. It is not the job of any bar association to scrutinize & “label” an applicant & then retain personal mental health information PRIOR to passing the bar.

By Dixie Chick on 2014 02 14, 1:37 pm CDT

I suppose eliminating State Bar Associations altogether would be too drastic? Throwing out the dirt with the diaper, as it were?

By Tom Youngjohn on 2014 02 14, 3:55 pm CDT

The reason this questions are not permitted in other arenas is because they are an ineffective method for predicting future success.  As mentioned above there are often stories of drunk or mentally ill attorney causing significant damage, apparently undetered by the intrusive questions.  Perhaps is would be more effect to require regular urine tests of all attorneys for drug/alcohol abuse…..yes,that might be intrusive but it’s for the protection of the clients!
Mental health questions on the application only catch stable, diagnosed, and treated people…....not the crazy ones.

By Fresnojake on 2014 02 14, 4:00 pm CDT

During my 20’s, I was diagnosed with schizoaffective disorder, bipolar disorder, schizophrenia, and various subtypes of each of the foregoing mental illnesses.  I was subjected to involuntary hospitalizations on ten seperate occasions.  I was also suspended from school twice, and named in a criminal complaint twice, all due to disorganized behaviors that were a product of an interaction between drug use and mental illness.

For ten years, I tried, over and over again, to demonstrate a “two year” period of stability with the hope that I would be able to apply for the moral character background check after demonstrating such a period.  However, my fear that my medical records would be viewed by the moral character background committee when I submitted my bar application inspired me to refrain from making material disclosures to my treating psychiatrists that would have helped me to meaningfully treat my mental illness.

There is no question that the discriminatory business practices by my State Bar association have inhibited me from applying for the moral character background check.  How would you like it if you were not charged with any crime, but were involuntarily incarcerated for periods of time whenever a peace officer fills out a form containing an opinion that you are either gravely disabled, or a danger to yourself or others.  This procedure provides law enforcement officials with a method for curtailing your first amendment rights, because when you get involved in confrontations that consist entirely of speech activities, other peoples’ subjective perceptions of the reasonableness of your viewpoints becomes a pretext to lock you up, and also to invade your body with needles, and use the threat of needles and extended incarceration as a means of eliciting your consent to take pills.  There is also the threat from the psychiatrist that they will bring you into a room with a hearing officer so that a psychiatrist can give an opinion that you are incapable of rendering informed consent to treatment, so that they can decide for you what drugs you will take. 

It really can create an atmosphere of fear where you always are afraid to go out of your room, and you feel like when you do you have to walk on eggshells, it is a denial of your right to democratic participation in society, a denial of your right to participate in controversy, a denial of your right to engage with people in a way that makes them feel uncomfortable, although you are acting within the boundaries of your constitutional rights, by creating a subjective test that allows individual law enforcement and mental health personnel a means by which to write their observations and conclusions onto forms that you can’t cross examine or even access, so as to deprive you of liberty and other rights for incrementally increasing periods of time.  The only sensible policy in response to such coercive tactics is to, at least on an ostensible level, surrender completely, and being forced to do so engenders subjective feelings of bitterness which undermines the trust and confidence in the individuals who would seek to provide treatment.

By Soteria on 2014 02 14, 4:14 pm CDT

The Bazelon Center’s position that mental health patients are entitled to autonomy and self-determination is absolutely correct, and until the healthcare industry reforms to respect patients’ fundamental rights, I expect that the coerced treatment of mentally ill individuals will continue to interfere with their recovery. 

There are religious dimensions to many facets of mental illness.  The dogmas of all major religions are delusions, by the standards applied by mental health professionals, but participants in organized religions are able to defend themselves from the discriminatory treatment that is applied to other individuals perceived to be delusional.  Probably many of us have heard Christians talk about their personal experiences with their higher powers, but psychiatrists have a license to diagnose people with mental illness on the basis of information provided regarding their subjective experiences which have given rise to religious and spiritual beliefs.  Like Thomas Szasz says, psychiatrists often function as “reality enforcers” who generalize about phenomena that they have not even attempted to understand—and why should they?  It is not necessary for the person with power to consider the plight of the person whose spirit they are crushing.  Mental health, like all health care in the United States, is business, and nobody is expected to get to the bottom of the complex issues underlying a particular person’s psychosis.  It is rare that I encounter anyone whose professional training or experience with mental health issues leads them to consider the possibility that psychosis is a growth phase, or a necessary prerequisite of redefining oneself or entering into a deeper understanding of one self, or one’s relationship with society, or a natural part of one’s personal development.  I have wondered before if we are like tadpoles who are prevented from becoming frogs, or caterpillars who are prevented from becoming butterflies, because of the cultural parameters and negative reinforcement systems imposed by society.  I have recently learned, from 23andme.com, that one of my genetic traits is that I have a weaker response to negative feedback/punishment than a vast majority of the population.  This has given me pause to consider the occasions where I refused to capitulate, and I persisted in pushing my controversial point of view beyond the point of what other members of my community deemed to be ordinary or reasonable.  Without engaging in any unprotected speech activities, I was hospitalized on numerous occasions for incidents where I was well aware that I was neither a danger to myself, nor to others, nor unable to care for myself.

By Soteria on 2014 02 14, 4:15 pm CDT

Without going into greater detail, the State bar associations add insult to injury when it uses the fact that a person has been subjected to violations of their right to due process before deprivation of liberty, their fundamental right to refuse antipsychotic medication, their right to not have their access to constitutional rights predicated upon consenting to waive their right to refuse antipsychotic medication, and the right to seek redress for injuries to reputation caused by false statements, due to laws immunizing and granting privileges to the clinicians who write statements into charts…by invading the privacy of the mental health patient and using these abuses as a pretext to deny the patient a right to pursue the vocation of his or her choice.  It is harmful.

I am pleased by the DOJ’s efforts to make meaningful progress towards bringing the state bar associations into compliance with the ADA.  In the particular case of mental health patients, there are good policy reasons why state bars should, sua sponte, seek to offer reasonable accommodations to individuals who are disabled by mental illness, since these individuals are often not equipped to follow the statutory procedure for seeking vindication of their rights.  Policies should be implemented to minimize the risk that people whose disability makes them exceptionally vulnerable to discrimination on the basis of their disability should be protected from those forms of discrimination which they are likely to experience as a consequence of institutional patterns of discrimination.  All discrimination is founded upon ignorance.  The public policy interest in protecting the public from unqualified lawyers is not best advanced by selectively targeting individuals who have a history of seeking treatment from mental health professionals in the course of trying to deal with the experience of having a psychotic break.  This expresses an arbitrary preference in favor of people who are better at handling their drugs or who do not seek professional help.  To remedy past discrimination, state bars should insure that programs to assist lawyers and law students with mental health issues and/or substance abuse issues are adequately funded, and audit those programs to eliminate arbitrary exercises of power, and to encourage the patient’s meaningful participation in treatment.  The following services should be offered to patients:  An opportunity to meet with other lawyers and law students with similar ailments in a group setting, facilitated by a qualified group facilitator, and case management services performed by an appropriately trained case manager.  These services should be affordable.  There should be an affordable pathway to licensure for individuals who wish to pursue the law as the vocation of their choice, and finding that pathway should not be like looking for a needle in a haystack.  Punitive measures against individuals with mental health issues should be avoided unless necessary to protect the public, and periodic audits should be performed to insure that the existence of such an alleged existence is not being contrived, and that the instances where characterizations of liklihood of harm to the public are founded on scientific, evidence-based methods of reasoning.  The whole psychiatry industry needs to be audited for arbitrary labelling scheme and its effectiveness needs to be assessed in context of the treatment efficacy of healing rituals in other cultures, to determine if the treatment plans designed by our clinicians are helpful, and the credence granted to our professionals should be commensurate with the efficacy of their methods, measured in a competitive global market environment.  If a shaman from Mozambique heals his people better than a John Hopkins trained shrink, then the shaman’s views should be credited, and the shrink should be disenfranchised.  The quality of treatment should be measured in terms of not only objective results, such as prevention of relapse or other surface-level symptoms, but also in terms of the subjective experience of the patients.  Negative subjective experiences, such as being confined to a small room with fluorescent lights, and having your pants ripped off and needles jabbed in your ass, should be recorded as a loss in quality.  These new quality control policies should create an impetus to deploy treatment methods such as those described by Lauren Mosher and Luc Ciompi, called Soteria.

It’s valentine’s day and my wife and kids want to go to the lake.  Thank you for reading.

By Soteria on 2014 02 14, 4:15 pm CDT

Dixie Chick (#20),

Apparently you don’t practice administrative law with any healthcare licensing agencies. This is not a foreign subject to me at all - I often tangle with an agency that believes that it has a right (actually they believe they have a responsibility to the public to do so) to plaster mental health information all over public disciplinary orders based on the very disclosures that you are so concerned about with lawyers. In fact, I am working on discovery in a case right now where that is what the licensing agency is attempting to do in a case where the complaint had NOTHING TO DO with mental illness.

You will note also that I was responding to #6, who incorrectly made an assertion that the Louisiana Bar was practicing medicine without a license - they are not. I’m glad the DOJ stepped in - I hope this intervention (pardon the pun) changes the Louisiana Bar in a positive way. But I believe with very good reason that the Louisiana Bar believes it is doing the right thing because they have a mandate (well, I assume that they do because healthcare licensing agencies generally do as well) to protect the public, not to protect lawyers.

Oh, and Rob (#19), I have seen healthcare licensing agencies discipline people for inability to practice safely for medical reasons. Mostly it is mental health issues, but on occasion you see a disciplinary action for a person having seizures or other medical problems. Don’t think that medical problems are not considered in certain circumstances as well.

By Marc on 2014 02 14, 4:51 pm CDT

While in law school, I sat in on some involuntary commitment hearings. It was a very enlightening experience. One person was extremely memorable, and I actually observed both his initial involuntary commitment hearing and a re-evaluation a few weeks later.

Hearing #1: Subject was very vocal about his displeasure being in this situation, describing how he thought the trip to the mental health facility was for his son (the one who drove him there) and not himself. He was quite articulate despite his apparent agitation, and had a bizarre fixation on everyone’s footwear—remarking that one doctor “wore boots with chinos,” another wore “penny loafers with no pennies,” and that a female attorney had “very nice black Italian heels.”  The detail that makes this person related to this discussion is that when asked by the judge when he first started having mental health issues, he said that everything was normal up until his second year of law school, when he started hearing voices and had to withdraw during the second semester (proudly stating he was only 16 hours or so short of his Juris Doctorate).  Facility staff reported he was very disruptive, had a habit of stripping down and roaming the halls naked, and would stop up the sink drains with paper towels and cause flooding (all this conduct reluctantly admitted by the subject and seemingly related to his frustration with being involuntarily held in a mental facility). The judge ordered his commitment for up to 90 days for treatment and stabilization.

Hearing #2: Subject was a docile, shuffling, drooling, vaguely conscious shell of a person. Did not seem fully aware of the proceedings; he had quite obviously been medicated into a stupor. Commitment was extended to allow further evaluation and stabilization.

If you just saw hearing #2, you would never have guessed he was capable of the activity or obvious intellectual acuity demonstrated at hearing #1.

Our country’s treatment of mental health issues is an embarrassing disaster.  One significant contributing factor to this is the extreme social stigma associated with virtually every mental illness diagnosis—most people either presume that having a diagnosis must mean the person “is unable to control themselves and is dangerous” or alternatively “has conned some quack into giving them an excuse for being lazy/stupid/whiny.”  Letting the gatekeepers of a profession, even one as important as the practice of law, make judgments of the “fitness” of a person with some mental health diagnosis without any psychiatric qualifications (or training) whatsoever is absurd, intrusive, and I applaud the work being done to fix it.

The questions should be limited along these lines: “Have there ever been substantial questions about your mental health? If so, when? Did you receive treatment? Was the treatment successful in managing the issue(s)? Upon request, could you provide the bar with an opinion from a mental health professional regarding your fitness to practice law?”

By Voice of Reason on 2014 02 14, 5:49 pm CDT

While Wikipedia is unfairly disparaged as a resource on many topics, it definitely should not be considered to be the source for defining who is and who is not permitted to make mental health diagnoses, and whether doing so amounts to the practice of medicine, whether by law or by internal medical professional rules.

And while internet comments are a less reliable source than Wikipedia, quilty has a PhD in psychology(cognitive) as well as a law degree, and has extensive experience dealing with legal matters relating to claims and causes of mental disorders, the qualifications of those making diagnoses, and the procedures used.

Generally, you do not have to be a psychiatrist to make evaluations of mental health. Clinical psychologists with degrees from accredited schools are usually permitted to do so. Depending on state regulations, psychologists with Phds in areas other than clinical psychology may be permitted to make evaluations of mental health, either by area of focus (such as health psychology) or by having training in clinical matters in addition to having a Phd in a non-clinical area (such as cognitive-behavioral therapists with Phds in cognitive or behavioral psychology who have sufficient training in clinical matters).

There are also many stand-alone schools providing clinical psychology training that award Doctor of Psychology degrees (PsyD). PsyD holders are also generally permitted to work in the mental health area as long as they meet relevant state regulations. Some universities also have separate divisions producing PhD Clinical psychologists and PsyD therapists.

In addition to Phd psychologists, in many cases Masters-degree level psychologists and social workers may be permitted to evaluate and treat mental health disorders, whether they have MA, MS, MPsy, MSW degrees.

People with Doctor of Education degrees (EdD) may also be able to work in this area depending on the specific content of their training (such as focusing on learning disabilities or teaching students with behavioral problems).

Who can and cannot act as a therapist varies from state to state, as do the specific elements of training needed to do so, and a medical degree is not needed to act as a therapist.

The difference is that only Psychiatrists can write prescriptions.

It is entirely possible that Bar review committees use licensed therapists of any of the non-MD type to evaluate the mental health status of applicants. Especially since they charge less by the hour than many attorneys.

By quilty on 2014 02 14, 7:08 pm CDT

27 - the questions you proposed for inclusion in the fitness exam seem reasonable and fair to me.

By Soteria on 2014 02 15, 11:05 am CDT

I am grateful that someone has recognized the unnecessary pain and discrimination that the bar has put people through who have a past history of mental health issues.

I felt punished when I honestly disclosed a mental health issue I had five years prior to sitting for the bar. During that time, I was working through dealing with being sexually abused as a child. I suffered from depression, anxiety and suicidal thoughts. I overcame my issues, won a writing award for a short story about child sexual abuse and successfully graduated college despite all of the classes I dropped along the way due to my depression. I also wrote an article in the local major newspaper regarding a child sexual abuse case where I was open about being a past victim.

I also wrote about being a child sexual abuse victim in my admissions essay for law school. I was accepted into law school with a full tuition scholarship. I was a teaching assistant, was published in a law journal and became managing editor. I clerked at the D.A.‘s office where I wrote a successful writ application to the court of appeal.  While at the D.A.‘s office, I helped women who were physically and sexually abused file restraining orders and compassionately listened to their stories and encouraged them.

I not only survived my dark years of depression and anxiety as I dealt with the repurcussions of a horrible act done to me that I didn’t ask for or understand as a child, I thrived and was successful. 

Then, one month before sitting for a bar I had been studying for 12 hours a day for about a month, I was threatened with not being allowed to sit for the bar by character and fitness personnel. I was put through the wringer despite providing a written recommendation by my psychologist. I had to pound the pavement of New Orleans trying to track down medical records from facilities closed due to damage from Katrina. Gratefully, I was able to provide some medical records and was able to sit for the bar.

That whole experience with character and fitness brought back a lot of feelings of pain and anxiety as I tried to continue studying for the bar. I worked really hard to overcome my past, which should have been seen as a positive expression of determination and fortitude. Instead, I felt like my past would always follow me and that I was less than because of the things I went through. The conversations with the personnel and the way they treated me because of my past was excruciating.

I passed the the bar on the first try, had a successful 5 years as an attorney in private practice, and now I work for a court of appeal. I did not deserve to be targeted and discriminated against because of my past.  I hope that the DOJ can make things better so that good lawyers who overcome hardships are not discriminated against for their past mental health histories.

Sent from my iPhone.

By Grateful Atty on 2014 02 15, 12:27 pm CDT

Despite my perhaps inappropriately jocular remarks early in the thread, I think No. 11 does have something in the sense of suggesting it really ought to be an issue where the examiners take and defer to expert opinion.  One of my classmates was bipolar, and I have a sense of what that is, and the ongoing struggle to balance medication, from some of my conversations with her.  She had to go through some extra screening at bar exam time, and I was willing to vouch for her then (and would be again, circumstances being similar) because I had seen in the course of her studies and her clinical work that she cared about what happened to her clients, and had a sense of fiduciary responsibility.  Yes, there was an issue which she (assisted by her spouse) had to constantly monitor, but she was more fit to be an attorney (in my opinion) than many other classmates who had no diagnosed mental issues at all.

I often wonder how she has done all these years, and I hope she and her family are well, and if I have, in my earlier comments, offended any colleagues who are struggling with mental illness, I apologize for the tone of those initial remarks (though I do think the bar examiners legitimately need to make some inquiry).

By B. McLeod on 2014 02 18, 2:12 am CDT

@TheSaneOne: Good for you for staying the course. The FL Board of Bar Examiners (slightly different from the actual bar) is similarly invasive and adversarial, assuming the worst, treating applicants as deficient and immoral until they prove themselves otherwise. In general the attorneys on the investigating board are of poor caliber, in my experience, and unfairly punative. I was completely and thoroughly honest on my application (overly) and had them accuse me of lack of candor. 10,000 in attorney fees and a year later, they grilled me for three hours about embarrassing matters. Then because they weren’t all fully convinced they punished me by “giving [me] the opportunity to withdraw [my] application for a year.” After a year I was approved to be a member of the bar, BUT because of the delays they caused, I was required to pay another application/background fee of around $1,000 and wait another six months for a second analysis, during which the Board came up with other concerns they did not raise the first time (but could have). All in all, it was a very unnecessary and unpleasant process, and genuinely a great injustice. At least they eventually allowed me entrance. I came close to giving up—it was dispiriting and causing me financial trouble. Hard to pay for law school loans and attorney fees while being prevented from practicing.

It’s not just the application requirements but the Board’s abuse of discretion. Something needs to be done to check the powers of the type of attorney who eagerly volunteers to be an inquisitor.

By SoFar on 2014 02 18, 10:02 am CDT

Advice to bar applicants: Answer directly and honestly, but provide little supplemental information, especially if it seems like you’re asserting that things are not as bad as they seem. This is counter-intuitive. If you had to say yes to having had counseling for depression or yes to having been arrested for trespassing, you’ll be fine with no explanation. But if you start saying you weren’t really depressed or you really had permission to be on the land, even though it’s true, these Board folks will assume you’re lying and hall you in to make you try to convince them you’re not. And good luck with that. They may then further indulge their egos by punishing you (though they won’t call it that). They do not need to present any sort of finding or explanation to do this (at least not in FL).

By SoFar on 2014 02 18, 10:24 am CDT

I am really surprised to see the direction this discussion has gone.  It is firmly rooted in our law that a person cannot be punished or restricted for what they MAY do.  Particularly we are discussing genetic conditions that should not be limiting in the law, unless they are limiting in fact.  The BAR has access to criminal and educational records and may base their decision on past conduct to utilize medical records to predict future conduct is simply ineffective.  They only question is:  Do you have any medical condition which would interfere with the practice of law, with or without accommodation?  If any organization,other than the BAR, participated in such draconian inquisitions they would have been sued into bankruptcy.

By Fresnojake on 2014 02 18, 7:34 pm CDT

Um, forgive me, but in this context isn’t prior behavior part of what the DOJ is objecting to when it says “Explaining that an individual’s prior behavior, rather than a mental health diagnosis or treatment, is the best predictor of future success in law practice, the civil rights division says questions in character and fitness applications should focus on conduct rather than status of the applicant.”? From what I’ve seen, the bar is mostly concerned with making sure the lawyer remains compliant with his treatment.
Perhaps it would help if we saw some of the objectionable questions, but it reminds me of the EEOC punishing a trucking company for canning an alcoholic driver (he’d never drunk whilst driving as far as anyone could tell) and a trucker who lost vision in one of his eyes. There is a practice related reason for inquiring about mental health status, and past treatment is a really good indicator of one’s future condition.

By the young coot on 2014 02 19, 1:26 pm CDT

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