Volume 35
Issue
4
Date
2022

Evaluating Conduct and Behavior Questions as Replacements for Specifc Mental Health Inquiries on Bar Applications: Assessing the ADA Compliance of the New Questions

by Lydia Nagelhout

Most states include questions relating to mental health on their bar applications. In recent years, several states have replaced questions that ask specifically about mental health diagnoses and treatment with questions that inquire broadly into conduct and behavior in an effort to resolve conflicts with the Americans with Disabilities Act (“ADA”). Because mental health status has been shown not to predict future misconduct effectively, disclosure of mental illness on bar applications cannot be considered necessary and therefore violates the ADA. This Note will argue that the new broad conduct and behavior questions still effectively require disclosure of some mental illness, and states should therefore eliminate the new conduct and behavior questions from bar applications.

Mental health conditions pose a significant public health issue in the United States, and attorneys and law students as a group tend to be particularly affected by such conditions. Bar admission character and fitness questionnaires have historically included questions requiring disclosure of mental health diagnoses and treatment. Many states continue to include specific mental health inquiries on their bar admission applications. The threat of challenges to bar admission has been shown to discourage law students affected by mental health disorders from seeking treatment. Required disclosure of mental health history on bar applications thus presents an important public health issue.

Mental health questions on bar applications have been challenged under the ADA. Under the ADA and the corresponding Department of Justice (“DOJ”) implementing guidelines, state bar examiners may not screen out individuals on the basis of disabilities unless doing so can be shown to be necessary to the provision of legal services. While some specific mental health questions have been held to be impermissible under the ADA, authorities—including the DOJ—have advised that bar examiners may inquire into applicants’ past conduct and behavior. Following guidance from the DOJ and other sources, several states in recent years have exchanged questions that inquired specifically into mental health diagnoses and treatment for questions that inquire broadly into past conduct and behavior.

While these new conduct and behavior questions may limit the extent to which states’ bar examiners can specifically inquire into applicants’ mental health histories, the questions may still effectively require disclosure of some mental illness. For example, if an individual with a mental illness has been symptomatic in recent years and as a result exhibited covered behavior, the questions as written may require disclosure of the individual’s condition. An individual may have initially exhibited symptoms and subsequently been diagnosed and treated for a mental illness all within the time period designated by the new questions. The individual could have been stable and asymptomatic since the initial incident after seeking treatment, but under the new broad conduct and behavior questions may still need to disclose mental health history. Given the severe penalties for lack of candor on bar applications, applicants will tend towards disclosure of mental illness.

Evidence shows that an individual’s mental health history does not effectively predict future misconduct. Therefore, bar applications should not require any disclosure of mental illness because such disclosure cannot be considered necessary and therefore is impermissible under the ADA. Bar examiners should consequently remove the new broad conduct and behavior questions from bar applications.

Proponents of including questions that inquire into mental health history on bar applications justify their position by claiming that such questions are necessary to prevent attorney misconduct. However, other, permissible questions on bar applications—including questions that inquire into specific conduct and behavior—as well as the Model Rules of Professional Conduct (“Model Rules”) guard against attorney misconduct and ensure attorney fitness independent of mental health status.

 

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