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When applying to take the bar exam, applicants are required to complete a Character and Fitness questionnaire to assess their ability to perform the duties of a lawyer. Mental health questions are included in the questionnaire in 37 states and Washington, D.C. Fourteen states do not consider mental health status when evaluating fitness, while ten states adopt questions drafted by the National Conference of Bar Examiners (NCBE), and 15 states have their own questions. Some states only ask about mental health in specific contexts. Regardless, any such questions, are problematic.
There are positive changes coming, as we reported on this past week. The New Jersey State Bar Association and the state’s two law schools, Rutgers and Seton Hall, have asked the Supreme Court of New Jersey to remove a question from the mandatory "character and fitness" questionnaire that asks all applicants whether they have any mental health conditions that could affect their ability to practice law, and whether they are seeking treatment. According to a 2022 national study of law student wellbeing, 44% of survey respondents said the potential threat to their bar admission might deter them from seeking help for a mental health issue. The bar has suggested that rather than contribute to a reluctance to seek mental health assistance, efforts should be made to champion the early help-seeking of bar applicants and attorneys. The New Jersey Judiciary spokesperson noted that the disclosure of a mental health issue does not by itself disqualify a candidate for bar admission, and that the court has been sensitive to candidates' mental health issues. Helping to force the change in the Garden State, in recent years, New York State eliminated its mental health disclosure for bar admission applicants in 2020, while Ohio dropped its character and fitness question about mental or psychological disorders in January. Virginia law students successfully pushed the state in 2019 to stop asking about mental health.
In general, requiring applicants to disclose personal mental health information for bar admission can be stigmatizing and discourage individuals from seeking treatment for mental health issues. There is a real concern that applicants may fear negative consequences, such as being denied admission to the bar, due to mental health issues or treatment. This can create a barrier to seeking help and addressing mental health concerns, which can ultimately harm both the individual and the legal profession. Furthermore, disclosing a mental health issue does not necessarily mean that an individual is unfit to practice law. Therefore, advocates rightly argue that character and fitness inquiries should focus on conduct rather than health records.
Similarly, in the United States, many licensing boards for various other professions, such as nursing, medicine, and psychology, require applicants to disclose any mental health diagnoses or treatment history as part of their character and fitness evaluations. The exact requirements and procedures vary by state and profession. However, some states have recently started to review and modify these disclosure requirements due to concerns about potential stigma and discrimination against individuals with mental health conditions. For example, in 2021, the California Board of Registered Nursing changed its disclosure requirements to only ask about current conditions that may affect an individual's ability to practice safely. As well, in 2020, the National Council of State Boards of Nursing released a report recommending a more nuanced approach to evaluating the impact of mental health issues on nursing practice, rather than simply asking applicants about their diagnoses.
Importantly, it is not sufficient that answers to these questions just not be disqualifying for applicants – they shouldn’t be asked to begin with. Whether or not they impact the ultimate yay or nay on an applicant’s passage of character and fitness, they have a bearing on neither the character nor the fitness of the applicant. As stated the simple fact that the question is asked may dissuade some law students from seeking help when they need it. They are devoting three years of their lives to completing law school in the hopes of having a legal career. They are sacrificing long nights and heavy work loads in furtherance of their goal – they are thus primed for the sort of “grit it out” thinking that leads folks to forego mental health concerns right along with the physical health they are already sacrificing.
These sorts of mental health questions have been on many state bar character and fitness applications for years. As such, the first step must be removing them in all states. But a close in time second step must be an information campaign, in every state, letting law students know that seeking help will never in any way lead to an applicant being stigmatized.