Mental Health and Applying to a Bar

06Mar09

This is from the National Conference of Bar Examiners and their character and fitness form. For those of you for whom it’s been a while, the NCBE has taken over bar examinations, what with the MBE, MPRE, and a plethora of other exams. A number of years ago, when I sat for Iowa, it was a 2 and a half day exam, only half a day dedicated to Iowa only law. The rest was all NCBE stuff. Fortunately, my MBE score from Illinois was still valid, and I didn’t have to take that portion, meaning I didn’t have the full 2.5 days of exam, just 1.5 days. Now, it appears that they are in charge of character and fitness. They have questions pertaining to civil actions, which I assume would also include civil commitments. They ask about crimes, which with the criminalization of mental illness over the last few decades, would out many people suffering from mental illness or drug and or alcohol problems.

PREAMBLE TO QUESTIONS 25, 26, and 27 Through this application, the National Conference of Bar Examiners makes inquiry about recent mental health and addiction matters. This information, along with all other information, is treated confidentially by the National Conference and will be disclosed only to the jurisdiction(s) to which a report is submitted. The purpose of such inquiries is to determine the current fitness of an applicant to practice law. The mere fact of treatment for mental health problems or addictions is not, in itself, a basis on which an applicant is ordinarily denied admission in most jurisdictions, and boards of bar examiners routinely certify for admission individuals who have demonstrated personal responsibility and maturity in dealing with mental health and addiction issues. The National Conference encourages applicants who may benefit from treatment to seek it.

Yeah, I’m really encouraged to seek treatment.  All of my hospital records must be disclosed.  People not trained in mental health issues are making a determination about my fitness based on hospitalizations and diagnoses.  I am so encouraged to seek licensure that I may not even bother.

Boards do, on occasion, deny certification to applicants whose ability to function is impaired in a manner relevant to the practice of law at the time that the licensing decision is made, or to applicants who demonstrate a lack of candor by their responses. This is consistent with the public purpose that underlies the licensing responsibilities assigned to bar admission agencies; further, the responsibility for demonstrating qualification to practice law is ordinarily assigned to the applicant in most jurisdictions.

The National Conference does not ordinarily seek medical records, although the jurisdiction in which the applicant is seeking admission may do so.

If they don’t seek medical records, why do they ask for them in the subsequent forms?

The National Conference does not, by its questions, seek information that is fairly characterized as situational counseling. Examples of situational counseling include stress counseling, domestic counseling, grief counseling, and counseling for eating or sleeping disorders. Generally, the National Conference and the various boards of bar examiners do not view these types of counseling as germane to the issue of whether an applicant is qualified to practice law.

I may be blind here, but eating disorders are part of the Diagnostic and Statistics Manual (DSM IV-TR).  They are akin to addictions.  Why are they treated any differently than me?  I’ve run into quite a number of them in the two hospitals I’ve been in, and plenty in the hospitals I’ve visited as counsel for the defendant/respondent.  Is an attorney experiencing stress, grief, or other “situational” types of counseling any more capable of practicing than me when my meds are under control?  Or when my depression is mild to moderate, or I’m hypomanic?

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

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26. A. 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? □ Yes □ No
B. If your answer to Question 26(A) is yes, are the limitations caused by your mental health condition or substance abuse problem reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program? □ Yes □ No

If your answer to Question 26(A) or (B) is yes, complete FORMS 7 & 8. Duplicate FORMS 7 & 8 as needed. As used in Question 26, “currently” means recently enough so that the condition could reasonably have an impact on your ability to function as a lawyer.

I don’t know how to answer these questions.  Why ask them if they are not going to be used for a blanket denial, or to get a bar in my life monitoring my condition?  The fact that later in the application they ask for medical releases is downright frightening.  I’m in a half way house.  I’m supposed to be getting my life back together, making inroads into the life I used to have.  That would mean practicing law, at least on a limited basis.  Yet, it looks like I shouldn’t bother until I get back to Illinois where nobody will monitor me except me.  So far, I’ve done pretty good.  My clients weren’t hurt by my conduct during the peak of my disorder because I’d closed up shop for competency reasons.  Who’s to say this will continue especially if I can’t get back in law when I’m still supported by my team of mental health professionals and other professionals in my half way house.

I’m sorry, but this is beyond the pale.  My gut reaction is to answer with candor, but a part of me wants to write, “I will not answer these questions” maybe based on the Americans with Disabilities Act, maybe because it asks me for protected medical information with the intent to disclose to yet another party that doesn’t have a HIPAA policy in place.  Maybe because they don’t bother giving me a HIPAA policy statement.

Really, what business is it of theirs if I’ve never run afoul of the law because of my mental illness?  How can they have the balls to encourage people to seek help if they are forced to disclose it?

Filed under: recovery issues, the law   |  1 Comment
Tags: ADA, HIPAA, lawyer, licensure, mental illness, NCBE