South Dakota's bar admission requirements: a critical analysis of the deficiencies in South Dakota's bar application relating to mental health diagnoses.

• Author: Maurice, Emily C.

The South Dakota Bar Application, as it is currently written, violates the Americans with Disabilities Act by eliciting an extensive inquiry into an applicant's mental health history if the applicant discloses a diagnosis in response to questions about mental health. These questions lead applicants to admit diagnoses about mental health, which has resulted in either conditional admission or rejection of admission. The Department of Justice has analyzed the relationship between questions about an applicant's mental health on a bar application and how those questions may violate the Act. In response to the Department of Justice's analysis, the National Conference of Bar Examiners has changed its questions regarding character and fitness. This article will discuss the history of the Act and its applicability to bar application questions about mental health. Further, this article will discuss South Dakota's use of questions about mental health, and how those questions violate the Act by leading to further inquiries of applicants with a mental health diagnosis. As a solution, this article urges South Dakota to reexamine its use of questions relating to mental health, along with its use of conditional admission. Finally, this article suggests that South Dakota should incorporate education about mental health into the legal profession.

1. INTRODUCTION

   Attorney Doe applied for admission to the South Dakota Bar in mid-2012. (1) Prior to applying, Doe had graduated first in a law school class of 160, and had practiced law in another state for seven years without grievances or complaints. (2) Doe's record did not show any academic violations, criminal charges, or credit violations. (3) On Doc's South Dakota Bar Application, he denied having any condition "which ha[d] impaired or could impair [the applicant's] ability to practice law in a competent and professional matter." (4) On Doe's National Conference of Bar Examiners ("NCBE") Request for Preparation of a Character Report, which is also required for admission into the South Dakota Bar, Doe affirmatively answered a question which indicated a diagnosis or treatment for "bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder." (5) Doe, who had been diagnosed with Bipolar II disorder, did not classify this diagnosis and treatment as a hindrance on his ability to practice law, as he had done so successfully for seven years. (6)

   Four months after the application was submitted, Attorney Doe received a letter from the South Dakota Secretary for the Board of Bar Examiners which stated:

   Your application reveals ... you have had mild bipolar disorder with depression which is treated by daily medication and group counseling. You represent that "the condition has never impaired my practice and work abilities." You also said that you do not have any condition which, if untreated, could affect your ability to practice law. Please provide any and all medical, counseling, and other records regarding your mild bipolar disorder with depression. The Board would like to review these as soon as possible. (7) Thereafter, Doe sent a letter to confirm all medical records had been submitted to the Board for review. (8) Less than a week later, Doe received a letter from the Secretary for the Board stating a formal hearing was going to take place. (9)

   At the conclusion of the hearing, the Board found: "[Doe's] application for admission disclosed a history of depression and Bipolar II Disorder. These issues raised concerns about [Doe's] moral character and fitness to practice law as defined in [South Dakota Codified Laws] [section][section] 16-16-2.1 and 16-16-2.4." (10) The Board recommended a three-year conditional admission for Doe. (11) The Agreement for Conditional Admission set out terms for Doe, including an instruction to "use any and all prescription medication as prescribed ... and comply with all treatment recommendations." (12) Because of his diagnosed mental illness, Doe was required by the board to submit quarterly reports about compliance and to report all current medications. (13)

   Attorney Doe's story is not uncommon nor is it new. (14) State bar applications started incorporating questions about an applicant's character and fitness almost a century ago. (15) These questions covered areas such as an applicant's financial, educational, criminal, and work histories. (16) Within the last half century, bar admission requirements started including inquiries into an applicant's mental health status. (17) The Americans with Disabilities Act ("the Act"), however, strictly prohibits discrimination based on the disability of an otherwise qualified individual. (18) Thus, in 1994, the American Bar Association ("ABA") approved a resolution to narrowly tailor questions regarding mental health and provided guidance to state licensing boards on how to come into compliance with the Act. (19) Falling short of eliminating all questions related to mental health, the ABA reached the resolution to gamer some sort of "common ground" between the applicants and the licensing boards' interests. (20) The South Dakota Bar Application, however, never fully incorporated the ABA's recommendations for compliance with the Act, and as a result, South Dakota's Bar Application violates the Act. (21)

   The Act was enacted to provide equal opportunities to persons who have been or may be discriminated against based on his or her disability, including mental illness." (22) A quarter of the adult population has a mental disorder. (23) The legal profession possesses some of the highest rates of mental health illness compared to the general public, with some conditions occurring "at nearly four times the rate of the general population." (24) Regardless, many lawyers with a mental illness thrive despite a diagnosis. (25) Statistically, however, disabled lawyers face numerous challenges in the workforce, more often than their nondisabled peers. (26) With strong arguments on both sides, the issue remains whether or not, or to what extent, an applicant for admission to practice law may be questioned about his or her mental health. (27)

   The following article provides a history of the treatment of applicants diagnosed with mental health disorders, and provides a framework as to how the Act has shaped the bar admissions process. (28) It urges the South Dakota Bar to completely eliminate questions about an applicant's mental health from the bar admission application process. (29) However, should South Dakota choose to retain questions about mental health, it should instruct applicants to either answer mental health questions using the state bar admission application or the questions found on the NCBE Request for Preparation of a Character Report, but not both, as the questions are duplicative. (30) If South Dakota takes the least favorable road and continues to inquire about mental health through the state bar application and the NCBE Character and Fitness Report Request Form, South Dakota needs to take other steps to remedy the invasion into a sensitive area for a bar applicant. (31) This article also contends that South Dakota's use of conditional admission should be reevaluated to avoid overuse in situations involving attorneys with mental health conditions. (32) Finally, this article urges the South Dakota Board of Bar Examiners to require that bar applicants, and the entire judicial system, become more educated in the area of mental health. (33) While there may not be a perfect resolution of the issue for all parties, this article demonstrates that it is unnecessary to continue to allow the state judiciary to reach into some of the most personal areas of an applicant's life and potentially deny them the privilege to practice law. (34)

2. BACKGROUND

   1. History of the Americans with Disabilities Act as it Relates to Character and Fitness Questions

      The Act was passed by Congress in 1990 to eliminate "discrimination against individuals with disabilities." (35) Congress found that disabled individuals may face discrimination through "overprotective rules and policies, [and] exclusionary qualification standards and criteria." (36) Within the Act are three titles that deal with employers, public entities, and public accommodations. Title II of the Act provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (38) Qualified individuals are those who meet essential eligibility requirements, with or without modifications. (39) A public entity includes "any department, agency, ... or other instrumentality of a State or States or local government." (40) Title II was drafted in the broadest sense to encompass all aspects of state and local government operation. (41) A Board of Bar Examiners is considered an extension of a state's court system, making it a public entity subject to the terms of the Act. (42)

      A state's Board of Bar Examiners operates in a way similar to an employer hiring an employee when it considers the admission of an applicant to practice law in any state. (43) A board is not allowed to ask unnecessary questions regarding the existence of a disability through the application to practice law. (44) Questions on a state's bar application are subject to the terms of the Act, and the burden falls on a state's Board of Bar Examiners to show that the questions about an applicant's mental health will reveal direct threats to public safety. (45) Valid concerns for public safety must be based on "actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities." (46) Furthermore, the questions must be of use to effectively protect the public, and, when viewed retrospectively, could have identified attorneys who have become a danger to the public...