Christopher Ore 9-B King’s Hwy. E. Haddonfield, NJ 08033
March 28, 2006 The American Bar Association President Michael S. Greco 321 North Clark St. Chicago, IL 60610 Dear President Greco: I read with interest your January 26, 2006 letter (“Profession’s True Colors”) in the ABA Journal. Therein you wrote, “Approximately 30 percent of the U.S. population is composed of racial or ethnic minorities, but only 10 percent of our attorney population is. People with disabilities are even more underrepresented in our profession. And while half of all law students are women, senior positions in private and public law offices are still male-dominated, and income disparities persist.” (Emphasis added). According to the ABA’s website, since 1991, the ABA Commission on Mental and Physical Disability Law has sought to (1) fulfill the ABA’s commitment to justice and the rule of law for persons with mental and physical disabilities, and (2) open the legal profession to lawyers with disabilities. While nearly everyone agrees that the legal profession badly needs to address racial and ethnic diversity, it is much less common that attorneys, legal scholars, and society discuss the underrepresentation of lawyers with disabilities. I was pleased to see you broach this issue, and am glad to learn that the ABA Commission on Mental and Physical Disability Law is sponsoring the first “National Conference on Employment of Lawyers with Disabilities” this summer. The inherent hurdles that a disabled individual faces are often times significant enough to deter him or her from pursuing a career in law. These hurdles include learning disabilities, mental illnesses, physical immobility, etc. Beyond those, however, a more insidious hurdle is in the form of discrimination, whether implicit or explicit. While addressing such discrimination is often times impossible, I submit that there are tangible, specific, and immediate steps that the ABA can take to address one that is very explicit. Title II of the Americans with Disabilities Act has provided protection against discrimination for an indeterminate number of Americans in the last 15 years. Despite this protection, however, it seems that law students with some disabilities have not been shielded as they pursue licensure throughout most of this nation. While states vary on exact requirements, it is common for the Character and Fitness component of the typical bar application to ask invasive questions about one’s mental and physical disabilities. Of note, for example, is Ohio’s “Character Questionnaire.” On page 15 of the Ohio Bar Application, applicants are asked:
26.A. “Within the last ten years, have you suffered from, been diagnosed with, or been treated for bipolar disorder, schizophrenia, delusional disorder (paranoia), or any other psychotic disorder? Yes or No” 26.B. “Within the last ten years, have you suffered from, been diagnosed with, or been treated for any physical condition (e.g., stroke, head injury, dementia, brain tumor, heart disease) that has resulted in significant memory loss, significant loss of consciousness, or significant confusion? Yes or No” A reply of “yes” to the first question, for example, requires the applicant to “explain in detail” and to complete the “Authorization to Release Records Form.” The release document requires any institution or person who made a diagnosis or rendered treatment to the applicant to disclose to the National Conference of Bar Examiners, the Supreme Court of Ohio, the Board of Commissions on Character and Fitness of the Supreme Court of Ohio, the Bar Admissions Office of the Supreme Court of Ohio, and the local Admissions Committee responsible for processing my application for admission to the practice of law, their agents or representatives, information, including copies of records, concerning advice, care or treatment given me regarding my mental health, and I further authorize any inquiries, questions or interrogatories concerning me and authorize the appearance and testimony concerning my mental health before the Board of Commissioners on Character and Fitness of the Supreme Court of Ohio, or the local Admissions Committee or any agent or representative, as request by those organizations. (Source: Ohio’s Bar Application, Mental Health Records, Form 7C). By asking such questions, and by requiring full disclosure of medical records, the profession is engaging in discriminatory activity. Specifically, those who have a disability are forced to go through additional steps (and potential “interviewing”) in an effort to gain licensure. Perhaps worse, as students become aware of such questions, they may try to avoid the medical care or hospitalization that they may need. In extreme examples, those suffering from the depths of depression may attempt suicide. Many Americans are potentially affected by these questions. Bipolar disorder affects approximately 5.7 million American adults, or about 2.6 percent of the U.S. population age 18 and older in a given year;1 schizophrenia affects approximately 2.4 million American adults, or about 1.1 percent of the population age 18 and older.2 Further, while not specifically defined in the Ohio Application, “other psychotic disorders” probably include those outlined generally by the National Institute of Mental Health, such as major depressive disorder, dysthymic disorder, panic disorder, obsessive-compulsive disorder, post-traumatic stress disorder, generalized anxiety disorder, social phobia, agoraphobia, specific phobia, eating disorders, attention deficit
1
Kessler RC, Chiu WT, Demler O, Walters EE. Prevalence, severity, and comorbidity of twelve-month DSM-IV disorders in the National Comorbidity Survey Replication (NCS-R). Archives of General Psychiatry, 2005 Jun;62(6):617-27. Findings available at www.nimh.nih.gov/publicat/numbers.cfm#RegierServiceSystem 2 Regier DA, Narrow WE, Rae DS, Manderscheid RW, Locke BZ, Goodwin FK. The de facto mental and addictive disorders service system. Epidemiologic Catchment Area prospective 1-year prevalence rates of disorders and services. Archives of General Psychiatry. 1993 Feb;50(2):85-94. Findings available at www.nimh.nih.gov/publicat/numbers.cfm#RegierServiceSystem.
hyperactivity disorder, and autism.3 In many states, students hospitalized for the treatment of any of these illnesses must disclose that treatment and be prepared, upon request, to release their medical records and other information concerning their treatment history for evaluation by the Committee on Character. Meanwhile, anecdotal evidence suggests that few if any applicants actually are barred from practicing law on the basis of their response to these questions, but no statistics are available to the public verifying that anecdotal impression. Also, because of the confidential nature of the Committee's “investigations,” it is impossible to know how probing or invasive the Committee is in its “investigation” of the mental health of applicants. Aside from the issue of the legality under the ADA of the questions cited above, the wisdom of requiring applicants to the bar to answer such questions can be questioned on several grounds. The first and most important of these consideration is the likely effect of the questions on law students who may need professional help dealing with symptoms of depression or other possible mental illnesses. The prospect of possibly having to disclose their medical condition and the treatment they receive may deter such students from seeking needed help. That clearly is not a desirable outcome from either the students' or society's perspective, and by discouraging people who are likely to become members of the bar from seeking treatment for their mental health problems, the Committee on Fitness may in fact be increasing the likelihood that persons will be admitted to the practice of law whose fitness to practice is impaired by such illnesses. The questions also place law school staff who counsel law students in the difficult position of having to simultaneously advise them to seek professional assistance for their depression or other psychiatric problems while advising them that if they do so, they may be required to disclose details of their treatment to the practicing attorneys who comprise the Committee on Fitness. Finally, the competence of the Committee on Fitness to undertake the inquiry these questions require should be questioned. The Committee consists of members of the bar, and there is no requirement that it include any physicians, psychiatrists, or other persons with professional training rendering them competent to evaluate the medical history of applicants. Given the secrecy of their investigations it is impossible to know how the Committee goes about evaluating the medical information they require applicants to disclose and whether the Committee exceeds its competence in undertaking to do so. The way in which the Committee's mental health inquiries are framed is less than reassuring in this regard. First, there is an obvious disconnect between the Committee's requirement that applicants disclose medical information concerning treatment they have received for certain mental illnesses and the duty of applicants to "demonstrate their fitness by showing the requisite traits of honesty, integrity, fiscal responsibility, trustworthiness, and a professional commitment to the judicial process and the administration of justice." It is far from clear that a history of treatment for mental illness raises legitimate questions concerning an applicant's possession of these character traits, or at least that a Committee of lawyers is competent to assess the possible relevance of such a history to the question of whether a particular person possesses the traits. The Committee's lack of competence to evaluate the medical information it requires applicants to submit is also suggested by its inclusion of "evidence of current psychotic disorders" in a list of
3
See www.nimh.nih.gov/publicat/numbers.cfm#KesslerPrevalence.
"conduct" requiring further investigation. A committee of lawyers may be competent to judge whether persons who engage in certain types of "conduct" (e.g., financial misrepresentation, academic dishonesty, domestic violence, or evidence of moral turpitude) are fit to practice law. However, having a mental illness is not "conduct," and the Committee’s categorization of it as such is both redolent of outdated stereotypes of the mentally ill and suggestive of how far the Committee may have exceeded its competence in attempting to judge whether conduct appropriate to its purview properly can be inferred from an individual’s medical record. From both a legal and a policy perspective, there is good reason to question the inclusion of mental illness questions on the Ohio Bar Application. The questions asked by the Committee on Fitness may very well violate the civil rights of disabled bar applicants; and even if the questions are legally permitted there are strong reasons not to ask them. At a time when significant societal pressures already militate against people seeking proper medical care for psychiatric disorders, it seems extremely unwise for the Supreme Court to ask questions that predictably make it even less likely that future lawyers will seek such care when they need it. It also reflects poorly on a profession devoted to the fair and competent determination of facts that a Committee (which appears to lack medical expertise) presumes to judge which psychiatric conditions require disclosure as part of a fitness review. Additionally, it presumes itself competent to decide what further information applicants subject to the mental illness disclosure requirement must submit. As to the process employed by the Committee in evaluating this information, the only thing that can be said is that it remains a closed book, but that fact alone warrants concern. When people are required to disclose such sensitive information they reasonably ought to be informed how the information will be assessed, not just that it will be kept confidential. I invite you to explore this area, and to revisit the American Bar Association’s stance on the bar applications that are being used throughout the United States. I welcome dialogue with you. Sincerely,
Christopher P. Ore Student, Rutgers School of Law-Camden & Bloustein School of Planning and Public Policy 609.922.4690 cpore@yahoo.com