September 2014 Bar Bulletin
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September 2014 Bar Bulletin

Bar Applicants May Face Mental Health Hurdle

By Emily Cooper


Did you know that the Washington State Bar Association (WSBA) can require bar applicants to turn over private health records? Did you know that there are inquiries into an applicant's fitness to practice law based on whether the applicant has a recent history of mental health treatment, even if the applicant has never been in trouble in school or with the law?1

According to several law students and attorneys who are licensed in other states, applicants struggle in answering these questions because they feel they are being forced to choose between their rights to privacy and to be free from discrimination, and their ability to practice their chosen profession.

Recently, the Department of Justice, the federal agency in charge of enforcing the Americans with Disabilities Act (ADA), reviewed similar inquiries in two other states and found them discriminatory. In particular, the Department of Justice stated that singling out applicants based on their status of having a mental health disability, rather than the applicant's conduct, "violates the ADA because these questions are eligibility criteria that screen out or tend to screen out individuals with disabilities based on stereotypes and assumptions about their disabilities and are not necessary to assess the applicants' fitness to practice law."2 The Department of Justice also pointed out that besides being discriminatory based on disability, these types of questions affect privacy rights by "imposing additional burdens on applicants with disabilities in the form of expansive and intrusive requests for medical records."3

Disability Rights Washington, along with the Washington Attorneys with Disabilities Association and the Governor's Committee on Disability Issues and Employment, has started a conversation about what the WSBA can do to change how an applicant is determined to be fit to practice law in Washington. In an effort to educate law students, members of the bar and the general public, Disability Rights Washington launched a public awareness campaign entitled Questions of Discrimination.4

On the Questions of Discrimination website, you can read the DOJ letters as well as WSBA's current application and Admission to Practice Rules (APRs). You will note that the preamble to the application questions say that the Bar won't deny a license solely because an applicant seeks mental health treatment nor will it ask about "situational counseling." Yet, as the DOJ referenced in its own letters, the questions themselves still suggest that having a mental illness calls an applicant's character and fitness into question.5

Question 24 asks applicants to disclose whether they have "experienced, been diagnosed, or sought treatment" for mental health reasons and to speculate whether that disability would substantially impair their fitness to practice law. Question 25 asks whether, in the last two years, the applicant has engaged in or exhibited any conduct or behavior that could call into question the applicant's fitness. The question and APR 22(a) define "fitness" as including "the absence of any current mental impairment or current drug or alcohol dependency or abuse which, if extant, would substantially impair the ability of the Applicant or Petitioner to practice law."

Applicants answering "yes" to these questions must then provide detailed information about their diagnosis and treatment. Given the disclaimer at the bottom of Form 8, failure to share this private and protected health information could even cause a delay in the applicant taking the bar exam.

Disability Rights Washington's website also includes a short documentary on this topic, also called "Questions of Discrimination." For this documentary, Disability Rights Washington interviewed several influential disability advocates, including Andrew Imparato, executive director of the national Association of University Centers on Disabilities. Imparato has led other disability organizations and been an influential national policymaker regarding the rights of people with disabilities. He proudly identifies as being diagnosed with bipolar disorder. When asked about the bar application questions in Washington, he said:

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