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Nationwide Mental Health Questions: Bar Application Character + Fitness

Nationwide Mental Health Questions: Bar Application Character + Fitness

As you may know, the Massachusetts Bar Application includes zero questions about mental health or substance use.

Unfortunately, bad questions still appear on bar applications in some other states. “Bad” might be a strong label, and answers might be processed more soundly than the questions set up — but the questions should be removed, unquestionably. Mental health treatment is effective — questions that deter seeking it are not.

“Ultimately, very few applicants are denied admission to the bar on mental health treatment grounds,” as a 2018 article on the ABA’s Before the Bar Blog observes in its encouragement for law students to seek mental health treatment as needed. The article later elaborates on the state of bar applications:

“To be clear: while the state of character and fitness inquiries into mental health is improving, it is less than ideal. In 2014, the U.S. Department of Justice (DOJ) found that assessing fitness based on mental health may violate the Americans with Disabilities Act. Instead of examining mental health diagnoses, the DOJ recommended that states examine applicants’ past conduct. In response, the National Conference of Bar Examiners (NCBE) revised its standard questions related to mental health: the form now asks whether the applicant “currently [has] any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner.” (The NCBE’s form is used by approximately half of the states, not including California, Illinois, New York, or Texas.) Many of the states that don’t use the NCBE’s form have made similar changes to their mental health questions.”

The Conference of Chief Justices resolved to urge all states and territories to eliminate questions about mental health history, treatment, and diagnosis at its Midyear Meeting on February 13, 2019:

“NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices urges its members and state and territorial bar admission authorities to eliminate from applications required for admission to the bar any questions that ask about mental health history, diagnoses, or treatment and instead use questions that focus solely on conduct or behavior that impairs an applicant’s current ability to practice law in a competent, ethical, and professional manner;

BE IT FURTHER RESOLVED that reasonable inquiries concerning an applicant’s mental health history are only appropriate if the applicant has engaged in conduct or behavior and a mental health condition has been offered or shown to be an explanation for such conduct or behavior.”

While we wait for nonconforming states to act upon the instruction from the CCJ, you can access this database listing the questions each state includes on its bar application in the following categories: Mental Health / Substance Use Provisions; School, Criminal History, and Other Disciplinary Provisions; and Financial Provisions.

Alarmingly, attorneys already admitted to practice also frequently hesitate to seek mental health treatment. Working to overcome the stigmatization of seeking treatment, the Florida Bar Association’s Young Lawyers Division recently produced #StigmaFreeYLD — a video campaign featuring five successful lawyers sharing the different stories of their struggles and paths to take action and get help.

Law students in Massachusetts can find answers to a wide range of concerns about seeking mental health treatment in our FAQ for Law StudentsLaw students in Massachusetts can also book a FREE + CONFIDENTIAL consultation with one of our clinicians — Find more on scheduling here.

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