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Mental health questions on license apps violate disability law, says Dept. of Justice

Current questions about mental health on a national form used by the Louisiana state bar to screen applicants for attorney licensing violate the Americans with Disabilities Act (ADA), and the state must change its application policies, the U.S. Department of Justice Civil Rights Division says.

The Louisiana state bar requires candidates to submit a “Request for Preparation of a Character Report” to the National Conference of Bar Exami-ners. The form asks applicants whether they have been diagnosed or treated for any mental health disorders. At least 25 state bars, and many licensing boards, employ similar questions to screen applicants. The DOJ called the questions “unnecessary, overbroad, and burdensome for applicants.”

In a February 14 letter to the state bar, the federal law enforcement agency said that singling out applicants based on their status of having a mental health disability, rather than the applicant’s conduct, violates the ADA by setting up “eligibility criteria that screen out or tend to screen out individuals with disabilities based on stereotypes and assumptions about the disabilities and are not necessary to assess applicants’ fitness to practice.”

The DOJ primarily objects to the fact that the questions discriminate against applicants by treating mental disability differently from physical disabilities and by focusing on diagnoses rather than conduct.

There are five problems with Louisiana’s system for evaluating and admitting applicants with mental health disabilities on a “conditional” basis, said the Justice Department. The system discriminates against individuals based on disability in violation of the ADA by (1) making discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment; (2) subjecting bar applicants to burdensome supplemental investigations triggered by their mental health status or treatment as revealed during the character and fitness screening process; (3) making discriminating admissions recommendations based on stereotypes of persons with disabilities; (4) imposing additional financial burdens on persons with disabilities; (5) failing to provide adequate confidentiality protections during the admissions process; and (6) implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ mental health diagnoses or treatment.

The NCBE’s Request for Preparation of a Character Report, required of each applicant, includes the following questions:

25. Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?

26A. 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) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

26B. If your answer to Question 26(A) is yes, are the limitations caused by your mental health condition. .. . reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program?

27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding, or any proposed termination by an educational institution, employee, government agency, professional organization, or licensing authority?”

The DOJ began investigating Louisiana’s bar admission questions relating to mental health in 2011, after a complaint was filed by the Bazelon Center for Mental Health Law, an advocacy group, on behalf of an applicant known as TQ and, later, another known as JA.

This probe led the DOJ to issue its  advice to the Louisiana state bar, in the form of a “Letter of Findings.”

If applicants respond affirmatively to Questions 25 or 26, they must complete a form authorizing each of their treatment providers to provide information, “without limitation,” relating to mental illness including copies of records, concerning advice, care, or treatment provided. In Louisiana and other states, this can lead to requests for information “of an extremely personal nature,” that is irrelevant to the applicant’s ability to practice law, the DOJ said.

For example, in the case of applicant TQ, the Admissions Committee reviewed treatment notes including details of intimate information discussed in therapy such as her upbringing, relationships with members of her family, sexual history, body image, and romantic relationships.”

Despite the fact that the Louisiana Supreme Court authorizes conditional admission only when an applicant’s record shows conduct that may otherwise warrant denial, conditional admission is often imposed  for such reasons as “diagnosis with bipolar disorder,” in the case of TQ.

Ironically, the DOJ notes, some applicants with substantial misconduct in their background, and even felonies like second degree murder, have been admitted without any condition or oversight whatsoever.

The Justice Department letter makes several recommendations for remedial measures, including refraining from using the NCBE questions, changing admission rules to ensure that only conduct and not mental diagnosis or treatment is considered during evaluation, terminating conditions on admission to current members who do not have conduct-related issues, expunging all documents and records related to such cases, and paying compensatory damages to individuals with mental health disabilities who were subjected to discrimination during the bar admissions process.

Negotiations lie ahead. The DOJ considers the letter a prelude to a mutually agreed solution, arrived at in an “amicable and cooperative fashion,” to resolve the agency’s concerns, wrote Jocelyn Samuels, acting assistant attorney general in the DOJ’s Civil Rights Division.