Bar Exam Disclosures and the ADA – Part I

Character and Fitness Application

For recent law school graduates, answering moral character and fitness questions when seeking admission to state bars is highly important and seemingly endless paperwork.  The biggest concern is often gathering all the required information.  But, for JDs with mental health or substance abuse issues — present or past — the state bars’ inquiries can be an added source of stress and confusion.

Basic information about disclosure requirements has been compiled for prospective attorneys by the American Bar Association’s (“ABA”) Commission on Disability Rights. This state-by-state directory provided by the ABA Commission on Disability Rights includes the text of each state’s question(s) as well as other potentially useful information on state-specific topics such as bar exam testing accommodation policies and some local rules and case law of interest. 1

States vary considerably in what period of applicants’ lives their inquiries about mental health and substance use cover.  Some states are interested exclusively in current and future problems and behavior.  For example, New York’s application (for all four appellate departments) directs, “State whether you have…(c) any mental or emotional condition or substance abuse problem that could adversely affect your capacity to practice law” and immediately thereafter asks, “Are you currently using illegal drugs?”  While the second question is very specific, the first part of the inquiry is more vague; it appears to leave judgment about what “could” now or later affect one’s capacity to the applicant and presumably any health professionals with relevant knowledge.  Unlike many other states, NY does not specifically ask whether the applicant has a condition, which, if untreated, might affect his or her capacity to practice law.  That is, if the applicant intends to continue treatment that reliably renders him or her mentally fit to practice, if and so long as such treatment is medically necessary, it would appear the applicant is not compelled to disclose the underlying condition(s) being treated.

California’s request for disclosure is more explicit than New York’s, leaving less room for speculation about the relevancy of information pertaining to treated diagnosed illnesses:

“Have you ever been diagnosed or treated for a medically recognized mental illness, disease, or disorder that would currently interfere with your ability to practice law? Have you ever been adjudicated an incompetent or a conservatee? Have you ever been diagnosed or treated for a chemical dependency that would currently interfere with your ability to practice law?” 2

While the question asks about all diagnoses “ever”, it still can be termed a present-time focused disclosure because the focus remains entirely on potential current impact on the person’s ability to practice and not on the fact of diagnoses. 

Many states ask about incompetency proceedings like the CA bar does, and many include language asking about mental conditions and various dependencies being used as “as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization or licensing authority?” 3–or even inquire about less formal invocations of the condition in academic or professional contexts.

As one of the least intrusive inquiries in the country, Illinois’s application limits itself to this: “Have you ever been declared incompetent or had a conservator appointed to help conduct your affairs?” 

Massachusetts has no relevant inquiry, but applicants need to look beyond disclosure requests to understand what may affect their admissibility to practice.  The second piece in this series will discuss this matter further, so please do not consider these questions alone in considering the impact of mental health and substance abuse issues on bar admission. 

 Many other disclosure requirements leave less to discretion (or confusion) by specifying certain time periods.  For example, Texas delineates exactly what’s relevant. 4

Washington DC’s questions are less intrusive but no less clear: “In the past five years, have you been addicted to or treated for or counseled concerning the use of any drug, including alcohol…[or] have you voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional, or nervous disorder or condition?”

More often than not, a state will combine questions about current factors, happenings within a specified time period, and/or open-ended queries covering a person’s whole lifetime. 

Virginia includes all three types of queries in its disclosure request. 5  The language defining “currently’ used by VA as well as language specifically requesting information about the ameliorative effect of treatment(s) appears in many states’ analogous inquiries as well. 

In terms of the mental issues that bar admissions committees want to know about (outside of the various substance abuse/dependency/addiction issues and catch all mental/nervous/emotional disorder-type queries), many states will list exactly what they have in mind — at least in some instances.  Conditions named in at least one state question include:

–bipolar disorder, manic depressive mood disorder;

–schizophrenia, psychotic disorders;

–paranoia, delusional disorder;

–major depressive mood disorder, major depression;

–impulse control disorders, including kleptomania, pyromania, explosive disorder, pathological/compulsive gambling; 

–paraphilias, including pedophilia, exhibitionism, voyeurism;

–physical impairments, including stroke, head injury, dementia, brain tumor, heart disease causing significant memory loss, loss of consciousness or significant confusion, or unexplained blackout spells/periods of amnesia/memory loss, and;

–personality disorders, including antisocial personality disorder. 

Part 2 of this series will discuss rules and committee procedures that complicate matters for applicants with histories implicated by the questions discussed here.  Some of the controversies surrounding the use of this information in bar admissions will also be explored.

Notes:

  1. Neither Blueprint JD nor the author guarantees the accuracy of this information at the time of viewing. Applicants should always independently check with the individual state(s) for any and all application information/relevant rules and seek counsel for any remaining questions to ensure full compliance with admission requirements.
  2. See p.10 and p.14 of linked application.
  3. See Idaho.
  4. See pp. 9-10 of application with its frequent reference of 10 years as the relevant time period.
  5. See pp. 23.1-24 in this sample character application.
The following two tabs change content below.
Kara Shamy is a graduate of Harvard College and University of Michigan School of Law. A member of the Blueprint JD Board of Directors, Kara volunteers with a number of social justice organizations.

Latest posts by Kara Shamy (see all)

Add comment