Are C&F Mental Health Questions Still Too Broad?

In April, Virginia Public Radio aired a news story entitled "Law Students Challenge Need for Mental Health Question" on the character and fitness application.  The law students contend that the mental health questions on Virginia's character and fitness application have perversely incentivized law students to forego mental health treatment as a means of ensuring that they do not have to affirmatively disclose any mental health treatment on their character and fitness application.  (Read the full story here.)  

The law students' challenge comes in the wake of the American Bar Association's 2015 resolution to eliminate "any questions that ask about mental health history, diagnoses, 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." 

Despite the ABA's recommendation, the Virginia character and fitness application asks three broad mental health related questions: 

• Within the past five (5) years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?
• Do you currently have any condition or impairment, including, but not limited to, (1) any related to substance or alcohol abuse, or (2) a mental, emotional, or nervous disorder or condition, which in any way affects your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical and professional manner? “Currently” means recently enough so that the condition could reasonably have an impact on your ability to function as a practicing lawyer.
• Within the past five (5) years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous or behavioral disorder/condition as a defense, mitigation, or explanation for your actions in the course of any of the following [proceedings...]?

If the applicant answers "yes" to any of these questions, they are then prompted to supply detailed supplemental information including dates and contact information for any treating physicians.  The applicant must also obtain a verification from the treating physician indicating that in the physician's opinion the applicant possesses the requisite character and fitness to practice law.  Notably, Virginia's application questions are almost identical to the National Conference of Bar Examiner's sample application. 

It appears that the first question aligns squarely with the ABA's resolution, but the other two questions go well beyond the narrow sphere recommended by the ABA.  It will be interesting to see how the Virginia Board of Bar Examiners (and, perhaps other jurisdictions who have adopted the same application) respond to the law students' challenge.  Stay tuned.  (Kirsha Trychta)