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Mental Health Update

November 8, 2019
Mental Health Update

MH Update – 11/8/19 – State Bar Association Votes Overwhelmingly to Support Elimination of Question Related to Mental Health

Last week, another significant barrier to eliminating the stigma of mental illness in New York State took place when the New York State Bar Association recommended removal about questions related to an individual’s mental health for all future applications to the State Bar.

It is hard to believe in this day and age where we recognize that mental health related issues are no different than physical health issues that their still remains these remnants of the past orthodoxy around mental health.  We thank the leadership of the New York State Bar Association for having the vision to overwhelmingly support the elimination of question around mental health from moving forward.

NY State Bar Set to Eye Removal of Mental Health Question for Attorney Applicants,New York Law Journal

By Dan M. Clark, Oct. 31

The New York State Bar Association’s governing body is set to consider this weekend whether to recommend that inquiries about an applicant’s mental health be removed from future applications for admission to the state bar.

The vote is the result of a working group established earlier this year by the State Bar to examine whether the question—which currently exists on the application—should be cut.

In a report issued recently, the State Bar’s Working Group on Attorney Mental Health wrote that the question could place unnecessary stress on young attorneys and law school students—and may also be illegal.

That report will be presented to the State Bar’s House of Delegates on Saturday in Albany, along with a recommendation that the question be dropped.

“Accordingly, the Working Group concludes that questions relating to mental health and disability should be eliminated from the questionnaire,” a copy of the proposed action reads.

The proposal has support from the Mental Health Association in New York State, an education and advocacy group. Glenn Liebman, its CEO, said allowing the application to inquire about an individual’s mental health doesn’t consider the pervasive stigma around the topic.

“The stigma of mental illness is very serious and we shouldn’t be judging about a mental health issue,” Liebman said. “It should be irrelevant. It’s not about mental health, it’s about competence.”

Practicing attorneys in New York may already be familiar with the question the working group is recommending for removal. It’s on the Appellate Division’s application to practice as an attorney in New York state.

About half-way through the application, a question asks the applicant if they have “any condition or impairment” including a “mental, emotional, psychiatric, nervous, or behavioral disorder.”

If the applicant responds that they do have such a mental health condition, the application then prompts the individual to explain, specifically, what the nature of that challenge is. The application then asks if the individual receives ongoing treatment or support for their condition.

Earlier this year, the State Bar began to consider whether the series of inquiries into an applicant’s mental health may actually be deterring individuals from either gaining admission or seeking treatment for an illness.

Hank Greenberg, the current president of the State Bar and a shareholder at Greenberg Traurig, launched the working group in June to provide a deeper analysis of the question.

The impetus for the group, Greenberg said, was a resolution approved earlier this year by the Conference of Chief Justices, a national group of the top judges from each state. That resolution called on states to remove questions about mental health from their applications to the bar.

“The Conference of Chief Justices issued their resolution calling on the 50 states to look at or remove the question,” Greenberg said in an interview Wednesday. “We believed it behooved us in light of that to take a look at it.”

The 22-member group is composed of attorneys from various disciplines and concentrations at the State Bar, Greenberg said. A handful of members are from the Young Lawyers Section, for example, while a few others were brought in from the Committee on Disability Rights.

The working group’s report focused on the impact of the question on applicants, whether the question had any justifiable purpose, and if it was even legal to include it.

According to the report, many law school students have admitted that they’ve chosen not to seek help for mental health issues over concerns that such treatment would negatively impact their bar admission.

“When developing question 34, there was little or no consideration of its impact on law students,” the report said. “New data suggests that an inquiry into mental disability, in and of itself, may have harmful effects on law students seeking to be admitted to the Bar”

Law school students, the report said, are under more pressure today than in previous generations, which can negatively affect their mental health.

That stress comes from some of the traditional pressures of law school, like preparing for the bar exam and other tests, as well as the scores that come along with them. Those stressors are a precursor to anxiety about the job market, the report said.

Then there’s the added stress of the amount of debt students incur from attending law school, which the report said is much higher for today’s attorneys than those who entered the job market a few decades ago.

It’s not uncommon for recent graduates to experience total debt reaching a quarter of a million dollars, according to the report.

“For example, in 2009, the New York Times reported that a bar applicant was denied admission based on his debts of nearly half a million dollars,” the report said.

But even if the question had no impact on law school students and young attorneys, it may not even be legal to consider the mental health of applicants, the report said.

That’s because of the Americans With Disabilities Act, which the report said should preclude the state from probing bar applicants about their mental health. Though the state isn’t an attorney’s employer, it’s been illegal to ask prospective employees about their mental health for decades.

Title II of the ADA, according to the report, prohibits the denial of participation to someone based on their disability. So, anyone who discloses a mental health condition on the state’s application for admission to the State Bar is entitled to ADA protections, the report said.

The question also hinders the legal profession, as a whole, the report said, because law school students and young attorneys may choose to forego mental health treatment if they think it will derail their career.

“Screening out otherwise qualified applicants with mental disabilities is not only impossible and unnecessary, it is ultimately detrimental to the profession of law and those we serve,” the report said. “As such, it violates the proscriptions against discrimination of Title II of the ADA.”

A decision to deny an applicant admission to the bar based on a mental health condition is very rare, the report said.

It’s estimated that fewer than 2% of applicants even answer affirmatively to the question about mental health. But statistics indicate that the population of law school students who actually deal with challenges to their mental health is much greater, according to the report.

At the end of the day, the report said, the question is unnecessary to the state’s questionnaire on character and fitness of attorney applicants.

“More than one bar official interviewed in connection with this report noted that the elimination of Question 34 would not have affected the outcome of any of the cases in the past 10 years in which admission to the bar was denied,” the report said.

If the State Bar’s House of Delegates votes in favor of the working group’s recommendation, that doesn’t mean the question is automatically stripped from the state’s application. The choice is ultimately up to state court officials.

The House of Delegates will vote on the proposal at a meeting Saturday in Albany.