Remove Mental Health and Substance Abuse Questions from Bar Exams

Remove Mental Health and Substance Abuse Questions from Bar Exams

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Samantha Braver started this petition to Administrative Board of the New York State Unified Court System

November 2019

As law students and attorneys throughout the United States of America, we ask our respective Administrative Boards of Unified Court Systems to remove questions pertaining to our mental health and substance abuse histories on the Character & Fitness portion of our bar applications. The prospect of facing questions related to mental health or substance abuse on the bar can deter treatment for current and future law students and add unnecessary stress to an already stressful profession.

In 2014, the American Bar Association (ABA) conducted a survey of law student well-being.  The ABA found that forty-two percent of respondents stated they needed help for an emotional or mental health issue within the past year, but only about half received treatment. Forty-five percent of respondents feared that seeking assistance could threaten their admission to the bar. Sixty-three percent of respondents indicated they were discouraged from seeking treatment for alcohol or drug use due to the potential threat to bar admission. While very few applications are ultimately denied admission to the bar due to mental health treatment, it is clear that having to answer invasive Character & Fitness questions students can hurt rather than help students in need.

The exact questions that appear on the exam vary by state. In February 2019, the Conference of Chief Justices urged states to remove mental health inquiries from their applications. Several other states, including Virginia and Connecticut, have already initiated this process themselves. The New York State Bar Association recently convened a working group that has issued a report recommending the removal of these questions. However, a majority of states still ask questions about mental health on bar exam applications. A sample of questions that may be found include:


Do you currently have any condition or impairment including, but not limited to a mental, emotional,  psychiatric, nervous or behavioral disorder or condition, or an alcohol, drug or other substance abuse condition or impairment or gambling addiction, which in any way impairs or limits your ability to practice law? If your answer is Yes, describe the nature of the condition or impairment. If your answer 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? If your answer is Yes, the Committee on Character and Fitness may require that you provide an Authorization for the Release of Health Information Pursuant to HIPAA (OCA Official Form No.:960) for some or all of the providers of your treatment. (New York Bar Exam, 2019)


Has any proceeding ever been instituted to declare you an incompetent person, an insane person or a mentally diseased person? (Oregon Bar Exam, 2019)


Within the past five years have you ever cited physical or mental illness, or an emotional, nervous or behavioral disorder in the course of an inquiry or investigation, administrative or judicial proceeding, or proposed termination or other disciplinary action as an explanation for your failure to meet a deadline or as a defense, mitigation or explanation of those matters? (Wisconsin Bar Exam, 2019)


Have you ever used, or been addicted to or dependent upon,  intoxicating liquor or narcotic or other drug substances, whether prescribed by a physician or not, the use of, addiction to, or dependency upon which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or cope with the ordinary demands of life? (Michigan Bar Exam, 2019)


Are you currently, or have you been within the last five years, (a) diagnosed with or, (b) treated for any of  the following: Schizophrenia or any other psychotic disorder, delusional disorder, bipolar or manic depressive mood  disorder, major depression, antisocial personality disorder, or any other condition which significantly impaired your behavior, judgment, understanding, capacity to recognize reality, or ability to function in school, work, or other important life activities? (Kentucky Bar Exam, 2015)

Bar examiners are not and should not be “mental health experts.” Only by taking care of ourselves can we take care of others. As law students and attorneys committed to the ethical maintenance of the legal profession and the well-being of our community, we stand with all bar applicants---regardless of their mental health histories---in seeking removal of intrusive Character & Fitness questions on our exams.

In solidarity,

Columbia Law School Student Senate, with the support of:

Columbia Law Students for Disability Rights, Columbia Health Law Association, Columbia Mindful Law Student Association, Columbia Latinx Law Students Association, Columbia South Asian Law Students Association, If/When/How at Columbia Law School, Columbia Law Domestic Violence Project, Columbia Law School Democrats, Empowering Women of Color at Columbia Law School

Chair of the American Bar Association's Law Student Division

New York University Law Student Bar Association; Disability Allied Law Students Association at NYU Law

Harvard Law School Student Government

Stanford Law Association

Student Bar Association of Syracuse University College of Law

Case Western Reserve School of Law, Student Bar Association

Washington University Law Student Bar Association

 

Sources:

Survey of Law Student Well-Being, A.B.A. (Jan. 18, 2019), https://www.americanbar.org/groups/lawyer_assistance/research/law_student_survey [https://perma.cc/CDR6-2PQP].

Margaret Hannon, Why the Character and Fitness Requirement Shouldn’t Prevent Law Students from Seeking Mental Health Treatment, A.B.A. for Law Students (July 9, 2018), https://abaforlawstudents.com/2018/07/09/character-fitness-requirement-and-seeking-mental-health-treatment/ [https://perma.cc/QJ9T-HWFL].

Susan DeSantis, Momentum Builds for Allowing NY Bar Applications to Keep Mental Health History Secret, N.Y. L.J. (June 10, 2019), https://www.law.com/newyorklawjournal/2019/06/10/momentum-builds-for-allowing-ny-bar-applicants-to-keep-mental-health-history-secret/ [https://perma.cc/9X8C-8HU7].

Staci Zaretsky, State Bar Examiners Do Away with Mental Health Question on Bar Exam Application, Above the L. (Feb. 13, 2019), https://abovethelaw.com/2019/02/virginia-bar-exam-mental-health [https://perma.cc/F4UZ-PC3E].

Working Grp. on Attorney Mental Health of the N.Y. State Bar Ass’n, The Impact, Legality, Use and Utility of Mental Disability Questions on the New York State Bar Application, N.Y. State Bar Ass’n (Aug. 13, 2019), https://lawyerwellbeing.net/wp-content/uploads/2019/09/NYSBA-Working-Group-Report-FINAL-8.15.19.pdf [https://perma.cc/9S6E-XXY8].

Bar Admissions Questions Pertaining to Mental Health, School/Criminal History, and Financial Issues, Bazelon Ctr. for Mental Health L., http://www.bazelon.org/wp-content/uploads/2019/05/Bar-Application-Character-and-Fitness-Questions.pdf [https://perma.cc/E8XK-FM2K] (last updated Feb. 2019).

0 have signed. Let’s get to 1,500!
At 1,500 signatures, this petition is more likely to get picked up by local news!