The American Psychological Association's (APA) Council of Representatives, which has been exploring changes to the questioning in bar applications, passed a resolution on Aug. 2, 2023, pledging to work toward elimination of mental health questions on state bar applications, because "[s]tatistical data reveal that there is no connection between bar application questions about mental health and attorney misconduct and that such questions have not been empirically shown to work as a successful screening tool for who can and cannot practice law in a competent manner." See "Stop asking aspiring lawyers about their mental health, psychology group says," Reuters Legal News, Aug. 9, 2023 (https://reut.rs/3EsbSER).

This issue is already being addressed by the American Bar Association (ABA), which also opposes mental health questions being included as part of the bar application process because many are considered to be in violation of the Americans with Disabilities Act (ADA).

According to the ABA (https://bit.ly/3OD8PxZ):

"Mental health questions typically fall into three categories: (1) diagnosis or existence of a mental health condition that could affect an applicant's ability to practice law; (2) treatment, in-patient or out-patient, of the aforementioned condition; and (3) whether the applicant has ever been party to conservatorship or court-appointed guardianship proceedings. Many of these questions are similar but have different time frames and standards."

When considering potential sources of mental health stigma in the legal profession, state bar application mental health questions are a potent "risk factor."

Tying mental health de facto to fitness to practice law reflects stigmatizing beliefs around mental health issues and their relationship to competence.

While removal of mental health questions from state bar character and fitness evaluations is an important step in protecting the rights of bar applicants, it is also a critical step toward reducing and eventually eliminating mental health stigma within the profession.

Mental health stigma is wrapped in a cloak of suggestion that mental health issues reflect weakness, laziness, or even worse, moral or character failings, or a lack of competence.

Mental health, just like physical health, can be thought of as a continuum which varies by person over time, reflecting anything from experiencing normal transient fluctuations in mood, anxiety, and stress, to more formal mental health diagnoses.

In the absence of a mental illness, life events and circumstances can impact your overall mental health and well-being. And as with physical health, if you recognize and address your symptoms early, a crisis can often be averted. Importantly, most mental illnesses, just like physical illnesses, can be managed effectively with treatment.

State bar application mental health questions began appearing in the 1970s. The new questions were added in response to instances of misconduct by lawyers who also had mental health or substance use issues, in addition to the enactment of a provision in the then-ABA Code of Professional Responsibility which went into effect in 1970, providing that bar applicants may be found to be unqualified to practice law due to "mental or emotional instability". (See the Bauer, J. article and Michael J. Place & Susan L. Bloom, Mental Fitness Requirements for the Practice of Law, 23 Buff. L. Rev. 579 (1974), (https://bit.ly/3KQpEEP)

Over the past three decades, since the enactment of the ADA, advocates for the removal of mental health-related character and fitness questions, including pioneering advocate Professor Jon Bauer at the University of Connecticut School of Law (UCLA Law Review, 2001), have argued mental health-related questions on bar applications are a violation of the ADA.

The United States Department of Justice has also taken the position that utilizing questions about mental health to evaluate character and fitness risks violation of the ADA (see Settlement Agreement Between the United States of America and the Louisiana Supreme Court Under the Americans with Disabilities Act, 2014).

Advocates, including the ABA, and Bauer—who first filed a lawsuit against the Connecticut Bar Examining Committee in the 1990s, shortly after passage of the ADA—assert that mental health questions on the bar application violate the ADA by discriminating against bar applicants with a current or past history of a mental health diagnosis or treatment. The questions themselves are considered problematic, as are resulting requirements imposed upon bar applicants, and resulting discriminatory admissions recommendations, which often follow applicants' affirmative responses to the questions.

Over the course of 25 years, Bauer was successful in advocating for gradual narrowing of the mental health questions asked of Connecticut bar applicants, and eventually, in 2019, all references to mental health were removed. Similar action is being taken in states across the country, with varying degrees of change.

According to the ABA, outside of the 21 states that do not ask mental health questions on bar applications, 10 states have adopted model questions drafted by the National Conference of Bar Examiners (NCBE) for evaluation of character and fitness, and an additional five states ask at least one of the NCBE mental health questions. Fourteen states have drafted and adopted their own mental health questions.

Although strides have been made since 2020 in terms of bringing mental health to the forefront of our awareness, mental health issues of varying severity continue to be stigmatized in the legal profession and in the population at large.

Stigma and biases, while problematic, result from our brains' adaptive efforts to organize and make sense of large amounts of information. There is an automatic tendency to sort information into categories, which facilitates information processing. These cognitive processes, however, can also lead to bias and discrimination and serve to isolate and estrange people with mental illnesses.

For law students whose symptoms fall on the mental health continuum anywhere from transient distress to more serious mental illness, bar admission concerns and stigma itself are strong deterrents to seeking assistance from a mental health provider. Yet, without professional intervention even minor issues can snowball into more serious concerns, which if not adequately addressed, may in fact impact functioning and performance.

There are potential longer-term consequences as well; the influence of stigma can be carried forward into legal practice, thus further perpetuating the problem. An ingrained belief that emotions represent weakness, combined with bar application confluence of mental health and competence, together reinforce lawyer aversion to vulnerability and may later discourage practicing attorneys from engaging in or supporting help-seeking and well-being initiatives. In a profession defined by the adversarial process, sharing emotions or embracing self-care may be perceived as too risky, potentially suggesting one is "soft," weak, deficient, or incompetent.

In the extreme, perceptions of failure or inadequacy and an inability to seek help have tragically left too many lawyers feeling hopeless and as though suicide was the only option for resolution or relief.

Rather than suggesting weakness, seeking help in fact reflects internal strength and a willingness to face your fears and unique challenges. Consider seeking assistance if you are experiencing internal distress or worries that do not resolve quickly, if you find yourself chronically irritable or explosive, if you or others have concerns about your substance use, or if you are having difficulty getting your work done or done well. Therapy does not have to be long-term; a few sessions are sufficient for many people. Just think of it as a "tune-up."

Bar application character and fitness questions both reflect stigma as well as perpetuate it. By stigmatizing and discouraging early help-seeking, bar application questions related to mental health can create a barrier to treatment and set up law students and lawyers for bigger mental health issues down the road.

The efforts of the ABA and APA to eliminate mental health questions from all state bar applications represent positive change when it comes to addressing stigma and promoting mental health and wellbeing in the legal profession. These initiatives provide hope for a healthier future for the profession, one in which mental health promotion and interventions for mental illness are encouraged and supported across the board.