Virginia Lawyers Weekly VA Lawyers Weekly
Law students in Virginia are asking for a rule change which they say will allow them to seek mental health treatment without fear of its impacting their careers.
The question arose when students from the University of Richmond sent a letter to the Virginia Board of Bar Examiners in early April asking them to “end the practice of requiring disclosure of mental health conditions on bar applications.”
“I would like the question removed,” said UR third-year law student Gray O’Dwyer, who is leading the effort. “The effect of it is that people don’t seek treatment.”
According to a study conducted in 2014, while 42 percent of law students from 15 schools surveyed said they thought they needed help for emotional or mental health problems, only 21 percent received counseling. Meanwhile, only 4 percent of binge drinkers and substance users sought help for their problems.
In 2015, the American Bar Association adopted Resolution 102, encouraging bar admission agencies to focus inquiries on “conduct or behavior which impairs an applicant’s ability to practice law” as opposed to focusing on diagnosis or treatment of mental health conditions, including substance abuse.
As a result, the Virginia Board of Bar Examiners, like many bar examiner organizations in the country, changed the wording of their character and fitness questionnaire.
It currently reads:
- “Within the past five (5) years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?”
- “Do you currently have any condition or impairment, including, but not limited to, (1) any related to substance or alcohol abuse, or (2) a mental, emotional, or nervous disorder or condition, which in any way affects your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical and professional manner? ‘Currently’ means recently enough so that the condition could reasonable have an impact on your ability to function as a practicing lawyer.”
Not far enough
While acknowledging the step forward, some Virginia law students now say that the 2015 changes did not go far enough.
The Washington & Lee Student Bar Association also sent a letter asking that the question be removed. Law students at William & Mary, the University of Virginia and Liberty University also expressed interest in participating, according to O’Dwyer, but representatives could not be reached to verify if letters were ever sent on their behalf.
O’Dwyer said that there are multiple problems with the way the questions are currently worded, some of which violate the Americans with Disabilities Act, and others which violate state law.
“The issue that we take with it is that first, under Virginia law, it has to be a necessary question, not based on any sort of tenuous argument … which is more or less echoed in the ADA. The reason for your asking the question has to be a threat to public safety, and it’s the burden of the people asking the question to demonstrate that … In no way has the Board of Bar Examiners demonstrated that there’s any sort of benefit to public health [in asking about applicants’ mental health history].”
Victor Glasberg, an attorney from Alexandria who previously spoke out about this issue on ADA grounds, agreed with O’Dwyer.
“I have a problem with the first question as it requires revelation of a past condition that [may have] been under control for almost five years,” Glasberg said. “The problem I have with the second question is in its formatting, not its content. It can be read to attach the ‘which in any way’ qualifier only to the second set of circumstances. If so, the unqualified first portion would violate the ADA.”
Board of Bar Examiners respond
Catherine Hill, the secretary and treasurer for the Virginia Board of Bar Examiners, declined the opportunity to respond to specific questions, but forwarded a letter sent to students and faculty at the University of Richmond on April 24, responding to their letter.
In it, Hill said that the board acknowledges the stigma associated with seeking help and pointed out that the character and fitness questionnaire also says that “the mere fact of treatment for health problems is not, in itself, a basis on which an applicant is denied admission in Virginia … The Board encourages applicants who may benefit from treatment to seek it.”
In fact, Hill said that no applicants were denied entrance to the bar based on the mental health questions in the last year. She did not, however, say how many times the questions have been used to deny applicants in the past.
While Hill said she supports students seeking mental health treatment, especially for help dealing with situational concerns like stress or grief, she said that it is the Board’s duty to find that each prospective lawyer has “the requisite fitness to perform the obligations and responsibilities of a practicing attorney.”
She said that to do this, the Board has to inquire about applicants’ “ability to function in a manner relevant to the practice of law” and that “the character and fitness screening process is performed to assure the protection of the public and to safeguard the system of justice.”
O’Dwyer said that in her opinion, the current system fails in this goal.
“There is absolutely no evidence that screening for mental health questions does what they think it does,” O’Dwyer said. “So, the point is that they’re not catching the people they want to catch and they’re teaching bad habits. They’re teaching avoidance because people are afraid to report. They’re teaching people to say it’s easier for me to say ‘I’ve not identified a condition, I have never been treated,’ than it is to go through the whole process of saying ‘Yes, I agonized over whether or not I should be treated, I got treated, and now I have to report it, now I have to fill out another form.’”
The big picture
A 2017 survey of Harvard law students found that despite changes in how mental health questions are phrased since 2014, many students still have mental health concerns and are afraid to report them due to fear that it will impact their bar eligibility.
The Harvard Crimson reported in late March that among 886 respondents to a survey, 83 percent reported experiencing mental health challenges while in law school. 19 percent of respondents said they were reluctant to seek help due to fear about bar eligibility, and only 33 percent of students suffering from depression said they were currently seeking treatment.
Jerome Organ and David Jaffe, who conducted the 2014 study, titled “Suffering in Silence,” said in email responses that there is still a long way to go toward eliminating the social stigma of seeking mental health treatment in law schools.
“In my opinion, the challenges surrounding character and fitness questions are at the heart of students not seeking help,” Jaffe said. “Bar examiners assert that they are protecting the to-be public and clients in their jurisdiction. Advocates counter that even if in some cases in which further assessment might be appropriate, the state bar is not relying on proper assessment and professionals to do the work needed to assist the applicant or conditional admittee.”
Apart from his work on the previous study, Jaffe has been active recently, working on the National Task Force on Lawyer Well-Being. The task force suggested in a report published in August that state bars should consider removing mental health questions entirely.
The ABA echoed this sentiment when it voted in February to adopt Resolution 105 which suggests state bars should consider recommendations set out in the report, titled “Creating a Movement To Improve Well-Being in the Legal Profession.”
Jaffe said that the trick to removing the stigma of mental health treatment for law students is for everyone, including law schools and bar examiners, to be transparent about the number of people denied based on mental health or drug or alcohol abuse issues.
“The moment that state bars report the actual number of applicants whose admission is delayed or denied due to a mental health or substance abuse problem, the perception of law students that they are in big trouble if they seek help will give over to the reality, and a greater number of students will be willing to seek help without fear of repercussion,” Jaffe said.
Organ agreed.
“In the absence of solid data, rumors continue to reinforce the existing messaging, which seems to discourage those students who should be seeking help from getting the help they need,” Organ said.
Resolutions
Hill said in an email that students who have problems with the bar exam process are asked to direct their questions and concerns in writing to the Board of Bar Examiners, as the students from UR did.
She also said that the Board is currently reviewing the character and fitness questionnaire “to determine if [it] should be further revised to properly balance the Board’s duty to protect the public with the important student well-being issues raised.”
She also suggested that the Board is willing to work with the Supreme Court of Virginia’s Committee on Lawyer Well-Being to review the National task force’s recommendations.
Otherwise, O’Dwyer said that she has reached out to outgoing Virginia State Bar President Doris Causey, UR Law Dean Wendy Perdue and Virginia Supreme Court Chief Justice Donald W. Lemons, all of whom had helpful advice for how to go about resolving the issue.
As a result, she said she is currently working on composing a brief to submit to the Supreme Court of Virginia, asking them to reevaluate the question based on its damaging effects, and considering the ADA concerns, along with Virginia licensing law.
“Obviously, I would like to see it gone. That would be ideal,” O’Dwyer said. “But if not, I would like to see it changed.”
O’Dwyer outlined a plan to alter existing questions about discipline at work, school or otherwise to ask applicants if they claimed mental health as a defense at the time of discipline, and if not, would they care to make the argument now. And to follow up, she recommended then asking questions about treatment, and about the progress of any treatment.
“I think we can still capture what they’re trying to do, which is make sure people with untreated, uncontrolled mental health issues – those are the big words: untreated and uncontrolled – are not being licensed to practice law,” she said.
O’Dwyer said she hopes to have the brief written and submitted by the end of next month, and that she hopes the court will then take action.
In the end, she said regardless of the solution, she wants to make sure that the emphasis is on getting students the mental health treatment they need.
“I feel as though these bar examiners are putting a lot of effort into defending the question,” she said. “And they’re really forgetting the serious mental health needs of lawyers and law students, and I want to ask, is it worth the effort? … If even one person doesn’t seek treatment because of this question, do you think you’re doing greater good?”
