Wednesday, July 30, 2014

State Bars May Inquire About Conduct, But not Mental Health Status

A reminder comes from the Disciplinary Board of the Supreme Court of Pennsylvania:

The U.S. Department of Justice, Civil Rights Division (CRD), has taken the position that attorney licensing agencies may not ask applicants whether they have been diagnosed or treated for any mental health disorders. In a letter dated February 5, 2014, Jocelyn Samuels, Acting Assistant Attorney General, informed the Supreme Court of Louisiana, its Committee on Bar Admissions, and the Louisiana Chief Disciplinary Counsel that four questions on its character and fitness application relating to diagnosis of mental health or substance abuse issues violate the Americans with Disabilities Act, 42 U.S.C. §12132 et seq. The questions are based on the Standard Character and Fitness Application[2] published by the National Council of Bar Examiners. The CRD noted that 25 states use the NCBE questions. Pennsylvania is not one of those states.

The CRD found that the applications process violates the law by using “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 CRD identified six issues created by the process:

  1. discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment;
  2. bar applicants subject to burdensome supplemental investigations triggered by their mental health status or treatment;
  3. discriminatory admissions recommendations based on stereotypes of persons with disabilities;
  4. additional financial burdens on people with disabilities;
  5. inadequate confidentiality protections during the admissions process; and
  6. adverse conditions on admission based on individuals’ mental health diagnoses or treatment.

The CRD recommended several steps, including changing or eliminating the questions, amending admission rules to consider only conduct and not mental diagnosis or treatment, ending conditions attached to the admission to current members who do not have conduct-related issues, expunging documents and records related to such cases, and monetary damages to individuals who were subjected to discrimination during the bar admissions process.

The letter does not represent a final or enforceable decision, but rather is a step in a process of negotiation and remediation by which the parties hope to resolve the issue.


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