Employers in the legal field sign pledges to commit ourselves to promoting a just workplace with equal opportunity for advancement and recognition of the impact of implicit bias. We use “diversity” and “inclusion” as buzzwords. But what does all of this really mean? Are we doing everything we can to support full inclusion when the very parameters for admission to our profession failed to acknowledge the Americans with Disabilities Act until 20 years after its passage?
I pose these questions because I have been grappling with them for more than two decades. In 1990, I was a first year student at Harvard Law School. I didn’t know it at the time, but I was also experiencing my first manic episode. At least, that’s what the psychiatrist at University Health Services was telling me. I ultimately ended up civilly committed to McLean Hospital.
Three years later, following graduation and admission to the bar in New York and Massachusetts, I applied for admission to the Connecticut bar. The application asked if I had received treatment for (among other diagnoses) bipolar disorder. I answered “yes” – and there began a nearly two-year journey before I was ultimately admitted – conditionally – to practice law in Connecticut.
During that time I discovered that my diagnosis led to assumptions that I would be unable to handle the stress of practicing law and would pose a danger to clients – despite the fact that the only person I had ever threatened to harm was me. I was forced to disclose traumatic experiences that I had not yet even broached in therapy – and only one person ever acknowledged how difficult this process was to endure.1
Thanks to the hard work and advocacy of many leaders in the bar, Connecticut has made some progress in the inquiries made on its bar application. In 2010, the rules were modified to state that “any inquiries or procedures used by the bar examining committee that relate to physical or mental disability must be narrowly tailored and necessary to a determination of the applicant’s current fitness to practice law, in accordance with the Americans with Disabilities Act and amendment twenty-one of the Connecticut constitution, and conducted in a manner consistent with privacy rights afforded under the federal and state constitutions or other applicable law.2 The language of the “mental health” questions were modified to ask:
No. 36: Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in a material way affects your ability to practice law in a competent, ethical, and professional manner? “Currently” means recently enough that the condition or impairment could reasonably affect your ability to function as a lawyer. If your answer is yes, continue to Question 37 and complete Forms 7 and 8. If your answer is no, continue to Question 38.
No 37. If your answer to Question 36 is yes, are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment or because you participate in a monitoring or support program?3
I believe that I would still be required to answer these questions in the affirmative. Although I have heard people say the process is different, and applicants who disclose the existence of a mental health condition no longer have to endure what I went through, I have reason to believe that little has actually changed.4
I will never forget that on the day I was finally admitted to the Connecticut bar, the judge who was about to administer the oath told me in his chambers that he was glad Connecticut allowed for conditional admission, because in the past, “people like you” [meaning me] would not have been allowed to practice law. Let those words sink in for a minute: “People like you.”
Meaning what, exactly? A graduate of Wellesley College and Harvard Law School? An articles editor for the Harvard Human Rights Journal? A volunteer at a battered women’s shelter? Oh — you mean someone with a mental health diagnosis. My response was a simple “Thank you, Your Honor.”
So when I see the organized bar congratulate itself on its efforts to promote diversity and inclusion, please forgive me if I’m not particularly sanguine. Even so, I am forever grateful to the judge for swearing me in on October 23, 1997 because I have been blessed to have a wonderful career as a legal aid lawyer in Connecticut, and now serve as Executive Director of Connecticut Legal Rights Project, Inc.
(1) For details of the procedure that existed at the time of my admission to the Connecticut bar, please see Bauer, Jon, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans With Disabilities Act. UCLA Law Review, Vol. 49, No. 93, October 2001. Available at SSRN: http://ssrn.com/abstract=293613
(2) Connecticut Rules of Superior Court, Sec. 2-8(3) (amended June 21, 2010, to take effect Jan. 1, 2011.)
(3) Connecticut Bar Examining Committee, Admission by Examination February 2017, Application, available at https://www.jud.ct.gov/cbec/Feb17/Form1E.pdf; Form 7 is an authorization to release medical information and Form 8 is entitled DESCRIPTION OF CONDITIONS, IMPAIRMENTS, DISORDERS, OR TREATMENT RELEVANT TO APPLICANT’S RESPONSE TO QUESTION 36 ON FORM 1E and asks for information regarding the condition and the treatment received.
(4) Letter from Department of Justice, Civil Rights Division, re: The United States’ Investigation of the Louisiana Attorney Licensure System Pursuant to the Americans with Disabilities Act (DJ No. 204-32M-60, 204-32-88, 204-32-89), available at http://www.bazelon.org/LinkClick.aspx?fileticket=7fvtHYXZawM%3D&tabid=698
Melody Moezzi, Lawyers of Sound Mind?, New York Times, August 6, 2013, p. A17. Available at: http://www.nytimes.com/2013/08/06/opinion/lawyers-of-sound-mind.html?_r=0
For more on this topic, check out the following video, “Questions of Discrimination.”