Evaluating Conduct and Behavior Questions as Replacements for Specific Mental Health Inquiries on Bar Applications: Assessing the ADA Compliance of the New Questions

• Author: Lydia Nagelhout
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., Columbia University (2017)
• Pages: 973-992

Evaluating Conduct and Behavior Questions as

Replacements for Specific Mental Health Inquiries

on Bar Applications: Assessing the ADA

Compliance of the New Questions

LYDIA NAGELHOUT*

INTRODUCTION

Most states include questions relating to mental health on their bar applica-

tions.

1

In recent years, several states have replaced questions that ask specifi-

cally about mental health diagnoses and treatment with questions that inquire

broadly into conduct and behavior in an effort to resolve conflicts with the

Americans with Disabilities Act (“ADA”).

2

Because mental health status has

been shown not to predict future misconduct effectively, disclosure of mental

illness on bar applications cannot be considered necessary and therefore viola-

tes the ADA.

3

This Note will argue that the new broad conduct and behavior

questions still effectively require disclosure of some mental illness, and states

should therefore eliminate the new conduct and behavior questions from bar

applications.

Mental health conditions pose a significant public health issue in the United

States, and attorneys and law students as a group tend to be particularly affected

by such conditions.

4

Bar admission character and fitness questionnaires have his-

torically included questions requiring disclosure of mental health diagnoses and

treatment.

5

Many states continue to include specific mental health inquiries on

* J.D., Georgetown University Law Center (expected May 2023); B.A., Columbia University (2017).

© 2022, Lydia Nagelhout.

1. Bazelon Center for Mental Health Law, Bar Admissions Questions Pertaining to Mental Health, School/

Criminal History, and Financial Issues, February 2019.

2. David Jaffe & Janet Stearns, Conduct Yourselves Accordingly: Amending Bar Character and Fitness

Questions to Promote Lawyer Well-Being, The Professional Lawyer, Jan. 2020.

3. Mary Elizabeth Cisneros, Note, A Proposal to Eliminate Broad Mental Health Inquiries on Bar

Examination Applications: Assessing An Applicant’s Fitness to Practice Law By Alternative Means, 8 GEO. J.

LEGAL ETHICS 401, 422 (1995); 42 U.S.C. § 12132 (2008); Alyssa Dragnich, Have You Ever . . . ?: How State

Bar Association Inquiries Into Mental Health Violate The Americans With Disabilities Act, 80 BROOK. L. REV.

677, 680 (2015).

4. Patrick R. Krill, Ryan Johnson & Linda Albert, The Prevalence of Substance Use and Other Mental

Health Concerns Among American Attorneys, 10 J. ADDICT MED. 46, 52 (2016); Jerome M. Organ, David B.

Jaffe & Katherine M. Bender, Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance

of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. LEGAL EDUC. 116, 145

(2016).

5. See Bazelon Center for Mental Health Law, supra note 1.

973

their bar admission applications.

6

The threat of challenges to bar admission has

been shown to discourage law students affected by mental health disorders from

seeking treatment.

7

Required disclosure of mental health history on bar applica-

tions thus presents an important public health issue.

Mental health questions on bar applications have been challenged under the

ADA.

8

Under the ADA and the corresponding Department of Justice (“DOJ”)

implementing guidelines, state bar examiners may not screen out individuals on

the basis of disabilities unless doing so can be shown to be necessary to the provi-

sion of legal services.

9

While some specific mental health questions have been held

to be impermissible under the ADA, authorities—including the DOJ—have advised

that bar examiners may inquire into applicants’ past conduct and behavior.

10

Following guidance from the DOJ and other sources, several states in recent years

have exchanged questions that inquired specifically into mental health diagnoses

and treatment for questions that inquire broadly into past conduct and behavior.

11

While these new conduct and behavior questions may limit the extent to which

states’ bar examiners can specifically inquire into applicants’ mental health histories,

the questions may still effectively require disclosure of some mental illness. For

example, if an individual with a mental illness has been symptomatic in recent years

and as a result exhibited covered behavior, the questions as written may require dis-

closure of the individual’s condition. An individual may have initially exhibited

symptoms and subsequently been diagnosed and treated for a mental illness all

within the time period designated by the new questions. The individual could have

been stable and asymptomatic since the initial incident after seeking treatment, but

under the new broad conduct and behavior questions may still need to disclose men-

tal health history. Given the severe penalties for lack of candor on bar applications,

applicants will tend towards disclosure of mental illness.

Evidence shows that an individual’s mental health history does not effectively

predict future misconduct.

12

Therefore, bar applications should not require any

6. Florida Board of Bar Examiners, Bar Application Sections A & B [hereinafter Florida Questionnaire];

Texas Board of Law Examiners, Bar Exam Application for In-State Law Students [hereinafter Texas

Questionnaire]; National Conference of Bar Examiners, Character and Fitness Sample Application, January

2021 [hereinafter NCBE Questionnaire].

7. Organ et al., supra note 4, at 141.

8. See Dragnich, supra note 3, at 687–99.

9. 42 U.S.C. § 12132 (2008); Dragnich, supra note 3, at 680.

10. Devin Chatterton, Louisiana and the Department of Justice Agreement Elucidates the Lack of

Adherence to the ADA, 28 GEO. J. LEGAL ETHICS 417, 427 (2015).

11. Connecticut Bar Examining Committee, Form M1, January 2020 [hereinafter Connecticut

Questionnaire]; New York State Supreme Court Appellate Division, Application for Admission to Practice as

an Attorney and Counselor-at-Law in the State of New York, November 2020 [hereinafter New York

Questionnaire]; Virginia Board of Bar Examiners, Character & Fitness Questionnaire, February 2019 [herein-

after Virginia Questionnaire]; Michigan Board of Law Examiners, Application to Sit for the Michigan Bar

Examination, June 2020 [hereinafter Michigan Questionnaire]; Indiana Board of Law Examiners, Character

and Fitness Questionnaire [hereinafter Indiana Questionnaire].

12. Cisneros, supra note 3, at 422.

974 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:973