Mental Health and the California Bar

CORRECTION (1/5/16): I was wrong. California has stopped asking about mental health on the moral character application.

Last year I learned some astonishing statistics that roused me into action, courtesy of a brilliant and courageous series of posts by Brian Clarke (part one, two, and three).  When entering law school, students are no more depressed than the general population (about 8%), but by the end of their first year about one in three is depressed.  Around 40 percent get depressed by the end of law school.  Lawyers are almost 4 times more likely to get depressed and 6 times more likely to kill themselves than the average member of the adult population.  My action thusfar has been local (at Santa Clara).  This post, though, is about something bigger.

The California bar has a policy that, I think, impedes efforts to promote mental health, and it’s my New Year’s Resolution to fix it.  For the non-lawyers out there, passing the bar requires both a written examination and an evaluation of the candidate’s moral character (sometimes also called moral fitness).  Basically, you want smart people (the test) who also won’t lie or cheat (moral character).  I’m all in favor of assessing moral risks, insofar as it’s possible, but, unfortunately, California also asks prospective applicants a question that isn’t closely related to moral fitness.  Question 10.2 (pdf–go to page ten) reads, ”Have you been diagnosed or treated for a medically recognized mental illness, disease or disorder that would currently interfere with your ability to practice law?”  Although questions like this one aren’t unique to California, I’m focusing on it because I’m a member of the California bar and teach in California.

For the remainder of this post I’m going to point out what I think are some problems with this policy: it seems to require disclosure of mental illnesses that are being treated, it discourages law students from getting help, and it might even violate the ADA.  In a subsequent post I’ll lay out my strategy for changing the policy.  In both instances, though, I’d welcome suggestions from readers about where I’ve left things out, gotten things wrong, or missed making my points as forcefully as possible.

What does the question mean?

Like much legal writing, it’s not entirely clear what the question means.  A clearer question would be “Are you currently unable to practice law due to an untreated mental illness, disease, or disorder,” which would mean that applicants receiving effective treatment would be admitted.  The bar, though, asks about diagnoses in addition to treatment, suggesting that the thing itself–not whether it can be treated–is the problem.

The bar provides some clarification on the terms it uses (on the same page as the question).  First, currently “does not mean on the day of, or even in the weeks or months preceding, the completion of the application. Rather, it means recently enough so that you believe that the mental condition may have an ongoing impact on your functioning as an attorney.”  So currently could mean within the prior year, but it also suggests that “currently” also somehow covers whether or not the applicant can function effectively.  It would be better to separate these two meanings into different parts of the question.

What about “mental illness, disease, or disorder?”  The plain language would include conditions like depression, but the bar’s clarifying language indicates that it “includes mental or psychological conditions or disorders, such as, but not limited to, schizophrenia, paranoia, bipolar illness (manic depression), sociopathy or any other psychotic disorder.”  It seems (but is unclear) that ordinary depression (as opposed to manic depression) is not covered–depression is not listed as a psychotic disorder according to the NIH–but this isn’t all that clear from the plain language.  Is depression excluded because it is not a psychotic disorder, or is it included because the explanatory language is just meant as a list of non-exclusive examples?

One suggestion for fixing the language would be to specify which diseases are covered under question 10.2, specifically whether the disorder has to involve delusions or hallucinations.  That might still pose other problems, but it would take care of what I see as overly inclusive language that potentially includes depression.

Why ask about diagnoses at all?

In the first semester of law school (the first month, actually), I broke my ankle in three places.  If I hadn’t gotten treatment for this diagnosis, it surely would have interfered with my ability to practice law–I’d have been in too much pain to concentrate on much of anything, and complications from an unset bone could have been severe.  Since law school I’ve seen my eyesight worsen, and I’ve had illnesses that I needed to treat with antibiotics.  These maladies, too, would have interfered with my ability to practice law if I hadn’t gotten glasses or a prescription.

I didn’t have to report my diagnosis of a broken ankle for two reasons: because (a) it wasn’t a mental illness and (b) I obviously took care of it.  So why is a mere diagnosis of mental illness any different?  I can’t think it’s the potential to interfere with law practice that’s key, since several other medical diagnoses fall under that category, but it also seems to me that a simple diagnosis is irrelevant unless the person with the diagnosis can’t or won’t treat it.  Focusing on treatment, then, is the key.  This suggests that the bar ask applicants something like “Disclose any mental illnesses that you do not plan to treat.”

The question discourages investigation

Depending on how you read the word “currently”–and the bar’s suggestion is to read it expansively–a law student who has been diagnosed with a mental illness, disease, or disorder will have to report this to the bar.  As I’ve already indicated, law school is full of students who develop depression.  As long as there is no diagnosis or treatment, however, there is no need to respond in the affirmative to the bar’s question. I know from several students that they have done exactly that–avoided getting help for fear of failing the moral character examination.  It is certainly possible to read “mental illness” as excluding depression, and it is also possible to read “currently” as excluding illnesses for which the treatment is effective, but the policy needs clarification.

Consider this thread from JD Underground, where students discuss “red flags” on the moral character application, which includes depression.  One student says “Do not talk to law school deans. Do not talk to law school professors. Do not agree to disclose anything to the bar unless you talk to a competent lawyer.”  I have heard similar things from students.  The last thing a student in crisis should do is isolate herself, or to feel like she should be ashamed about it.  But students listen to their peers on this subject.  It’s one thing for a professor to tell a student to come forward–the bar has to speak more forcefully and authoritatively about this.

Any question about mental health should encourage early diagnosis and treatment.  A clarification on what counts as “interference with the ability to practice law” would help reduce the risk that students will avoid getting help, and perhaps we could even push candidates to get help.  If we’re really serious about keeping out everyone who suffers from a mental health issue, though, we should require a psychiatric exam before admission, with checkups along the way.  Let’s not just penalize those who sought medical help.  (I’m not endorsing this idea, of course–it’s just a reductio ad absurdum.)

The point, though, is that the bar doesn’t want to exclude people with mental health issues from practicing law.  The California bar has created the Lawyer Assistance Program has a program for “ lawyers and State Bar applicants who are grappling with stress, anxiety, depression, substance use or concerns about their career.”  Question 10.2 should be fixed in order to be more in line with lawyers’ needs (and the focus of the bar itself).

These questions might violate the Americans with Disabilities Act

The final issue is legal–a letter written by the DOJ in February of 2014 suggests that asking about mental health might violate the ADA.  The letter was written to the Louisiana state bar and specifically noted the “diagnosis” problem, stating that “questions based on an applicant’s status as a person with a mental health diagnosis do not serve the Court’s worthy goal of identifying unfit applicants” (emphasis in original).  Denial of licensure based on conduct, however, is permissible.  Again, then, the issue could be narrowly framed as one where a candidate cannot or will not receive treatment, rather than asking broadly about diagnoses.  (Louisiana asked about conditions that either currently affected candidates or “if untreated could affect” (p5) performance.) The DOJ recommended, inter alia, that the Louisiana bar refrain from asking “any other question that requires applicants to disclose diagnosis of, or treatment for, a disability when that information is not being disclosed to explain the applicant’s conduct.”

That’s it for my diagnosis of the problem–I’d love your feedback on what else I might have missed.  In Part II, next week, I’ll discuss what my suggestions are for treatment.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

14 thoughts on “Mental Health and the California Bar”

  1. As a practicing lawyer with depression, I generally agree with your thrust here, but there are two uncomfortable truths: (1) treatment usually doesn't cure severe depression permanently (so it's really not like a broken ankle), and (2) a depressive episode can gravely impair one's judgment, focus, stamina and ability to meet commitments. I have been through times when I was grateful to be able to rely on colleagues when I was ill; a solo practitioner doesn't have that option. In fact, I tend to believe that someone who is prone to severe depression should not practice law alone, as I, honestly, from my informed vantage point, would not want such a person as my sole attorney. Of course I abhor "discrimination" against the mentally ill, but I am also against discriminating against the physically unfit, and yet I would not want a shaky-handed surgeon.

    1. Thanks so much for your feedback. I think I agree with it–that there are, in fact, some illnesses that can't be treated effectively enough where they wouldn't, in fact, interfere with one's ability to practice law–so the question now becomes where we draw the line. One of the solutions I'm going to propose (based on other articles) is either that we have a catch all "are there any conditions from which you now suffer that interfere", which would include not just mental health but also other issues (addictions, etc.), or that we distinguish among mental illnesses such that psychotic delusions would require disclosure but not less severe episodes of depression. The other approach could just ask about the kinds of performance issues you mentioned: judgment, focus, stamina, and ability to meet commitments. That way people who could treat their depression enough to get by wouldn't need to disclose and others would.

  2. David,

    I am glad you are pursuing this. I would think that an another critical question is can we can change law school such that student depression doesn't become a nearly normative consequence of getting a degree?

    1. You're absolutely right about that. We're starting to survey students about what contributes to their stress/depression in the hopes that it's not something endemic to law. I don't really have any great answers now, but I'm part of a task force on student mental health at Santa Clara and even the creation of that has, from student reports, helped them feel less isolated and hopeless. I make a point of checking in about mental health in class (about once a month), reminding students that feelings of depression are common (so as to overcome the isolation) and reminding them of our resources on campus. Whenever students come by my office, my first question is always "How's your stress level?" followed by questions about what they're doing to manage it, suggestions about diet and exercise, and the like. Honestly, though, sometimes I feel like I'm a law professor doing an EMT's job, and I'm definitely open to changes in the way we manage things. Right now I'm operating on the principle that showing students you care is at least a partial palliative (in addition to being the right thing to do).

  3. I scan the disciplinary notices in California Lawyer from time to time – the vast majority of time, the disciplined lawyers disclose some addiction (usually alcohol) as a reason for their infraction. I think I rarely or ever saw depression listed as a factor.

    My takeaway is that from the disciplinary record, one could construct an argument for focusing on addiction but not on depression.

    1. I completely agree, and I actually had a line in a prior draft of the post that alcohol was the good old fashioned folk cure for depression–and one for which you didn't need a diagnosis and hence didn't need a disclosure. So, without doing any research, my guess is that the two are linked, and it might, incredibly, be easier (perhaps even less stigmatic) to list alcohol addiction as a source of the bad behavior rather than depression. As I said in a reply to one of the comments above, however, I think we should be concerned less with the etiology of bad conduct and more with the conduct itself, no matter what the cause. So if we focused on law breaking, abuse of others, stealing, missing deadlines, misappropriating funds, etc., that would provide us with a reasonably objective and administerable line.

    2. Although I may be wrong about this, it could be that addiction is seen as less shameful than depression in a post-Puritanical society such as ours, given the traditional(?) view that addiction has a physical cause, whereas being depressed just means you're a weak link. Or un-elect or whatever. I agree with Tourtiere- there's probably massive overlap.

      Ball – if you want your students to be less depressed, abandon the lecture course format. Nothing like waiting for a round robin of head chopping at the end of semester. I think lecture courses are pretty much worthless. And they are probably depressed bc of their loans.

      1. To stop lecturing, I'd first have to start! I don't do it because it's not my style, plus there's evidence that it's not as effective as more engaged learning. I'm not sure of the correlation with depression, however. Some students get stressed out by a more interactive class, so I allow for alternative forms of participation for those who do. One thing I have heard from upper division students is that they feel more isolated as law school goes on, so they'd like more opportunities to collaborate. I generally do that already.

        As for their loans, I think that's no doubt a major source of stress.

      2. To stop lecturing, I'd first have to start! I don't do it because it's not my style, plus there's evidence that it's not as effective as more engaged learning. I'm not sure of the correlation with depression, however. Some students get stressed out by a more interactive class, so I allow for alternative forms of participation for those who do. One thing I have heard from upper division students is that they feel more isolated as law school goes on, so they'd like more opportunities to collaborate. I generally do that already.

        If your comment is about assessment, I also do assessments along the way (for much the same reasons–better for learning, helps students stay on track, etc.).

        I definitely also agree about the stress of loans.

    3. Alas–I had responded to this earlier, but it seems the internet ate my comment. I definitely agree with the other response to this–in fact, I deleted a sentence from the original post that described alcoholism as a kind of folk cure for depression, albeit one that doesn't require any prescription (and hence no diagnosis that you'd need to reveal). Perhaps people list alcohol as the reason for their infraction because they see it as the root cause–meaning either that their depression is a result (not a cause) of drinking, or perhaps because they are unaware of the depression that drives them to drink. But I also wonder if the stigma of being depressed is greater than that of being addicted, making people more willing to admit to the latter than the former.

  4. Several years ago, I represented a friend and law school classmate in a grievance proceeding. The grievance was totally and completely without foundation. However, in the course of the proceeding, the attorney for the Maryland Attorney Grievance Commission (essentially the prosecutor) learned that my friend was suffering from severe depression.

    Now, my friend knew that he was suffering from severe depression, was receiving treatment for it, and had curtailed his actual practice sufficiently to protect his clients from any adverse consequences of his illness. Despite that the AGC attorney sought, essentially sua sponte since there had been no complaint against my friend due to incidents arising out of his depression, as a condition of dismissal of the unsupported and unrelated claim, that my client surrender his license to practice until he could demonstrate that he was fit to practice.

    I knew that this would totally crush his self-esteem and would set back, perhaps irreparably, his recovery. Accordingly, I fought, successfully, for dismissal of the charges with no further action of any kind by the AGC.

    1. Wow. I haven't yet dug deep enough into the weeds in California to see if there are similar examples here, but I do know from reading the DOJ letter to Louisiana that part of the ADA issue was the way in which the Louisiana bar dealt with mental health disclosures, essentially shifting the burden onto the applicant and monitoring them more closely than those with other potential disqualifications. Good for you for fighting, though–I think this gets at some of the continuing stigma issues around mental health, that it's somehow a one way door, or that all mental illnesses are somehow lumped together. Severe depression to me seems different than other forms of acute psychosis, at least in terms of the harms they might cause. (I'm not saying it couldn't result in inadequate legal representation, of course, but I'm saying that I don't know enough necessarily to figure out how to regulate it.) So I think part of the issue, again, is whether the bar should screen for particular causes of bad behavior or do a catch all. I don't know what the empirical basis for singling out mental health was–my guess is it wasn't particularly empirical at all (but I could be wrong).

      1. The problem that one faces in situations such as I described is that there is really no effective sort of remedial intervention. In other words, the attorney has his or head lopped off. Even if the "lop off" is only for a limited time (e.g., until one has undergone successful treatment and is somehow "certified" to be capable of practicing law), the economic loss due to forced withdrawal from practice and the loss of one's client base, is generally devastating.

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