At its annual meeting August 3, the American Bar Association House of Delegates approved a resolution discouraging state bar entities from inquiring into the applicant’s mental health disabilities.
“The American Bar Association urges states and territorial bar licensing entities to eliminate from applications required for admission to the bar any questions that ask about mental health history, diagnosis 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,” the resolution states [PDF].
Although ABA resolutions are normally given significant weight, they are merely advisory and nonbinding on licensing entities.
In recent years, the Department of Justice has investigated multiple licensing agencies for potential Americans with Disabilities Act violations in their admission processes.
In August 2014, the DOJ reached an agreement with the state of Louisiana, requiring it to modify its “character and fitness” questionnaire to eliminate unnecessary inquiries into applicants’ mental health disabilities.
Most states require applicants, in addition to passage of the Bar examination, to undergo a “character and fitness” interview prior to admission.
The Bazelon Center for Mental Health Law, which filed the complaint that triggered the DOJ’s investigation into Louisiana’s application process, applauded the resolution.
“A candidate’s mental health diagnosis or treatment is not a predictor of fitness to practice law or future professional misconduct,” said Jennifer Mathis, director of programs at the Bazelon Center, in a news release. “We are delighted that the ABA has taken this step to reduce stigma and discrimination in the legal profession.”
In a related local story, Disability Rights Washington, the publisher of Rooted in Rights, has led a coalition asking the Washington State Bar Association (WSBA) to eliminate “character and fitness” questions which inquire about mental health treatment. DRW’s position is that no one should be forced to choose between the ability to practice law and their rights to privacy and to be free from discrimination.
As a result of DRW’s advocacy and pressure from the community, earlier in 2015, WSBA agreed that it could better determine who has the requisite character and fitness to practice law by focusing on essential eligibility requirements. Consistent with this agreement, WSBA submitted a proposal to the Washington State Supreme Court eliminating all questions about bar applicants’ mental health status. The final step will be to secure approval from the Washington State Supreme Court.
“Questions of Discrimination” is a documentary produced by DRW to explain the effects of these screening questions on people applying to be lawyers, as well as the diversity of the legal profession.