Before classes had even begun, a judge stood in front of Justin’s law school class to tell them about the parts of their life that would be examined to determine if they were qualified to become lawyers. Along with questions about speeding tickets, academic history, and violations of law, he told them, prospective lawyers would need to open up about their mental health, including any diagnosed conditions.
Justin, the first person in his family to attend college, had always dreamed of going to law school and becoming a public defender.
So when law school stress ran high and support was low, he remembered the judge’s words and decided that seeking out mental health resources wasn’t worth the risk to his dream.
“I want to do everything I can to limit my exposure,” said Justin, who did not want to use his last name to protect his chance of bar admission.
He is not alone.
For decades, nearly every state has required law students to answer questions about their mental health treatment as part of the requirements before they can practice law. As a result of the practice, according to one study, 45% of law students said they
A wave of support has been building to remove questions about mental health from what’s known as the character and fitness reviews of bar applicants. Several states, including Washington and Louisiana, have already done away with them. And now New York is deciding whether it will, too.
“[Students] should absolutely get the help they need and not worry about being asked a question that they have to answer and then reveal their medical history,” said New York State Bar President Hank Greenberg. “We don’t do that with any other physiological condition, and that we still do that for mental health is no longer acceptable in 2020.”
Removing institutional stigma
A New York court is weighing whether to drop the question from the state’s bar application after a working group within the New York State Bar Association issued a report in August calling for the removal of any questions about “mental history, diagnoses, or treatment.”
Such questions are “unnecessary and ineffective in identifying applicants who are unfit and are likely to deter individuals from seeking mental health counseling and treatment,” the report said.
“These kinds of questions are counterproductive to the goal of ensuring fitness to practice; unnecessarily invade applicants’ privacy; and impermissibly tend to screen out persons with disabilities based on stereotypes and assumptions about their disabilities, rather than focusing on their conduct or behavior that impairs their ability to practice law in a competent, ethical, and professional manner.”
The questions are a relic of a past time, Greenberg said, adding that treatment for mental health conditions should be regarded like any other physiological condition.
“Tragically there are people that don’t recognize it as a physiological condition that can be treated, but somehow view it some form of weakness,” Greenberg said.
Deans of 14 of New York’s 15 law school have written to the Chief Justice of the New York Supreme Court in support of the removal. The 15th recused herself because of former involvement as a judge, Greenberg said.
Greenberg said removing the question would “go an enormous way” toward eliminating the “institutional stigma” that accompanies it.
A long road to become a lawyer
The question about mental health comes after law school graduation as part of a long questionnaire and an interview to determine a prospective lawyer’s character and fitness to represent clients. Changes to the questionnaire are approved by the highest court of the state and can be proposed by the state legislature.
The current New York bar exam questionnaire asks applicants if they have any “mental, emotional, psychiatric, nervous or behavioral disorder or condition” that might impair or limit their ability to practice law.
Currently 38 other states also have questions regarding mental health on their character and fitness evaluations, according to the latest data from the American Bar Association Commission on Disability Rights.
Historically, states have said that questions about mental health are necessary to identify applicants who could pose a future problem. Colorado, a state that includes a question on mental health, argues that a significant number of attorneys who have received ethical complaints are suffering from mental health conditions or substance abuse.
Raising the specter
But critics say the question only dissuades students from seeking help when they need it most.
“Suffering in Silence,” a survey of 3,300 law students published in 2016 in the Journal of Legal Education, found that 45% of respondents believed seeking help would threaten their ability to be admitted to the bar and 63% said threats to the bar exam would deter them from seeking help for substance abuse.
The study surveyed students at 15 law schools and was administered with grant funding from the American Bar Association Enterprise Fund.
There is no comprehensive data to suggest that students are denied entry to the bar because they sought help; but David Jaffe, a co-author of the study, says it is perception that matters more than the reality.
“Perception is everything. We can do our best and we try to do our best to say to students ‘look, the smartest thing you can do is to get help,” said Jaffe, the associate dean of student affairs at the American University Washington College of Law.
“If students even have that belief or perception that raising the specter at all is going to be problematic, they are just going to dive down. They’re not going to even entertain or explore it.”
That’s what Justin did.
He didn’t seek help although the first year of law school brought anxiety, as he faced a world where classes consisted of stomach-churning “cold calls,” grades came largely from the final exam, and students were weighted against their peers, giving a feeling that you couldn’t go to classmates for support because if you do better, they do worse.
“Finals stress gets to the point where you feel like you can’t even move,” he said.
To relieve that stress, students on his campus got together for a weekly “bar review,” where they gathered with the intention of getting drunk.
Now advocates for mental health in law are pushing for change.
Mental Health questions vs. DOJ
They have been met with some success.
Connecticut removed mental health questions from its bar application last year.
The change “signifies a shift in our understanding of mental health and wellness, and will help further reduce the stigma,” said Karen DeMeola, assistant dean of the University of Connecticut School of Law. “Students can now focus on academics and not constantly worry about their efforts being futile given their diagnosis.”
In Louisiana, the question was eliminated after the Department of Justice got involved.
In 2011, a young attorney made a complaint to the Disability Rights Section of the US Department of Justice Civil Rights Division through the Judge David L. Bazelon Center for Mental Health Law. Because of her mental health diagnosis, she was granted a “conditional admission” to practice law in Louisiana, the Bazelon Center said.
The DOJ launched an investigation and concluded in 2014 that the Louisiana bar violated the Americans with Disabilities Act (ADA) through practices including making “discriminatory inquiries” about mental health, subjecting applicants to additional investigations because of their mental health conditions and making discriminatory admissions recommendations.
A settlement between the department and the state mandated changes including removing “intrusive” questions about mental health. The ADA has not yet been applied to any other state’s bar.
Can the applicant do the job?
Treatment seeking students with diagnosable conditions can be capable and competent as lawyers, said former lawyer and practicing therapist Alan Levin.
“I see and have seen, highly functioning, highly respected, highly compensated lawyers who have been suffering from significant amount of anxiety and depression, some who have issues with substance use, but none of whom would it make any sense to disqualify from practicing law,” Levin said.
Mental health may be affecting a lawyer’s performance, just as anyone would do better at a job on a good day than they would on a bad one. But Levin said the goal is to determine if the applicant can perform the job, and no studies show that people experiencing anxiety, depression and stress can’t.
So what should the bar focus on to yield good lawyers?
“Test their ability and knowledge as a lawyer, destigmatize mental illness, encourage people who want help to get help. It’s very simple,” Levin said.
46 million adults struggling
The discussion around the bar application comes as the larger legal profession is having similar conversations about how it regards mental health.
Mental health advocate and partner at law firm Reed Smith LLP Mark Goldstein said that stigma follows students into their law career. When he considered getting help for his mental health, he remembers reading an article by a recruiter that said an attorney feeling burn out shouldn’t tell anyone or “your career prospects might implode.”
It is a problem law firms are starting to address.
As of January 2019, nearly 70 law firms signed the American Bar Association’s “well-being pledge,” which calls on firms to create more supportive work cultures and makes prevention and treatment of substance abuse and mental health struggles a priority.
And every year across the nation, an estimated 46 million adults experience mental health concerns including depression, anxiety and substance abuse, according to the National Alliance on Mental Illness. But, in part due to persisting stigma, only 41% get help.