Last week, swarms of sun-starved, soon-to-be lawyers emerged from hiding to celebrate completing the bar exam. Passing the exam, however, won’t guarantee them admission to the bar. They also have to demonstrate that they possess the requisite fitness and moral character for the practice of law.
I worry for some of them. Specifically, I worry for those who have passed the exam and lived upright lives but may still be denied admission to the bar — not because of a criminal record or a history of academic misconduct, but because of a mental illness.
It could have happened to me. Shortly after graduating from law school in 2006, I completed the Certification of Fitness application from the Georgia Office of Bar Admissions, answering myriad questions and providing fingerprints, driving records and what seemed like everything short of a tissue sample.
As is the case in many states, my fitness application included the following question, drawn from the recommendations of the American Bar Association and the National Conference of Bar Examiners: “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?”
To get caught lying on your fitness application is an easy way to be denied admission. Luckily for me, I had no reason to lie. At the time, I’d been given a diagnosis of major depressive disorder, which wasn’t on the list. So I wasn’t compelled, under penalty of perjury, to answer in the affirmative. I passed the bar exam and was declared “fit.”
In 2008, after I’d already been sworn in, I was given a correct diagnosis of bipolar disorder. But by then I was in the clear. (As it happens, I was lucky twice: after my swearing-in, Georgia added major depressive disorder to its list.)
Not everyone is so fortunate. Statistically speaking, few of the applicants who answer “yes” to mental health inquiries are denied admission to the bar. Still, it happens, and some of those denied admission have challenged the rulings of bar examiners in court. In some cases, acknowledging a psychiatric disorder has prompted further investigation by state bars (including requests for medical records), delays and the granting of conditional licenses. Recognizing that the admission of a mental illness on a fitness application could be harmful to their careers, some applicants with mental disorders either delay or forgo treatment, while others lie under oath, risking perjury charges. I don’t blame them.
Consider the case of Kathleen Flaherty, a Harvard Law School graduate with bipolar disorder. A member of the New York and Massachusetts bars, she applied in the mid-1990s for admission to the Connecticut bar. After disclosing her mental illness on Connecticut’s fitness application, she wasn’t recommended for admission. She appealed, enduring a year of hearings about her mental health that one questioner characterized as “torture.” In the end, Ms. Flaherty was granted conditional admission, which required her to provide a doctor’s report and affidavit semiannually — a condition that lasted nine years.
No one should have to experience such humiliation. Not just because such mental health inquiries are irrelevant and unethical, but also because they can be illegal. The regulations implementing Title II of the Americans With Disabilities Act forbid public entities to administer licensing programs that discriminate against qualified candidates on the basis of disability.
Call me crazy, but I think bar examiners ought to follow the law.
To be sure, under the Americans With Disabilities Act, disability inquiries can be permissible to assess applicants’ fitness for licensure if, for example, they pose a “direct threat to the health or safety of others.” While on the whole, bar examiners have narrowed the scope of mental health inquiries over the past 20 years, courts and state bars still disagree on what is permissible under the act.
If bar examiners truly wish to protect the public from violent, criminal, incompetent or unethical lawyers, however, they may want to reconsider the use of these mental health inquiries. Those of us with a mental illness are no more likely to commit violent crimes than the general population (controlling for substance abuse), and there is no convincing evidence to suggest we are any less ethical or capable than other lawyers.
These stigmatizing status questions also waste time and money by requiring potentially lengthy follow-up investigations and inciting litigation.
Furthermore, they compromise the profession. Absent Ms. Flaherty’s perseverance, Connecticut would not have benefited from her work as a public interest lawyer. This year, in the wake of the Sandy Hook Elementary School shooting in Newtown, Conn., Gov. Dannel P. Malloy appointed her to the Sandy Hook Advisory Commission because of her personal experience with mental illness. Far from disgracing the profession, Ms. Flaherty has elevated it — both despite and because of her disorder.
Apart from being potentially wasteful, unjust, unlawful, ineffective, tactless, dangerous and counterproductive, mental health inquiries are hypocritical and an embarrassment to the legal profession. Legally, ethically and practically speaking, those of us living with mental illness should be judged by our deeds, not our diagnoses.
Melody Moezzi, a lawyer, is the author of the memoir “Haldol and Hyacinths: A Bipolar Life.”