Step Up to the Bar: Avoiding Discrimination in Professional Licensure

DOJ’s investigation of Louisiana took place in the context of growing concern about the discriminatory practices of state bar examiners with regard to applicants with histories of mental or substance use disorders. Although the questions asked of applicants vary a good deal, almost all states pose questions that require disclosure of diagnosis or treatment for a past or current mental disorder (4). Some states place no limit on the time frame during which the condition or treatment may have occurred, requiring reporting of a lifetime history, while others limit their questions to a fixed period, often the past three or five years (4). Applicants who give affirmative answers are typically required to disclose past treatment records, and requested disclosures often encompass a person’s entire medical history.

Louisiana’s questions were taken from a model developed by the National Conference of Bar Examiners in the 1990s, which replaced an even broader set of queries: “Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?” “Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?”

The rationale for such questions is that attorneys who are likely to be impaired by mental health or substance abuse problems can be identified by inquiring about their previous psychiatric histories or current diagnostic status. In some states, the questions are even broader, including longer time frames and inquiries regarding past treatment (5). But remote histories may have little bearing on current status, and even the presence of a current diagnosis does not imply impairment of the ability to function as a lawyer. Many psychiatric conditions, although distressing, do not affect the ability to engage in a profession. Other conditions that may have an impact on functioning will not do so if effectively treated, but they would have to be reported even by applicants with long histories of successful treatment. Thus there is reason to believe—and a small amount of supporting data (5)—that psychiatric diagnoses or histories of treatment are poor proxies for impaired function.

Both the American Psychiatric Association (APA) and the American Bar Association (ABA) have urged that these practices be abandoned by various licensing authorities. In 1994, the ABA passed a resolution calling on state bar examiners to “tailor questions concerning mental health and treatment narrowly in order to elicit information about current fitness [emphasis added] to practice law” (6). The resolution noted that questions about behavior and current impairment were legitimate, whereas queries about past diagnosis and treatment constituted a threat to the privacy of bar applicants. An additional concern of the ABA was that law students and practicing attorneys might be discouraged from seeking mental health treatment for fear of having to disclose it when applying for bar admission. Data from surveys of law students suggest that this is indeed a problem (5).

APA’s 1999 resource document specifically addressed medical licensure, although its argument is very similar and appears equally applicable to bar admissions. The document notes that “[p]rior psychiatric treatment is, per se, not relevant to the question of current impairment. . . . A past history of work impairment, but not simply of past treatment or leaves of absence may be gathered.” This is because “[t]he salient concern is always the individual’s current capacity to function and/or current functional impairment” (7). However, the sample question provided by APA used an expansive definition of “current,” allowing boards to inquire about physical or mental conditions, including substance abuse, in the previous two years.

In an effort to mitigate discrimination against attorneys with histories of mental illness or treatment, most states have adopted conditional licensure programs (4). Under this option, bar admission committees can attach conditions to applicants’ licensure, including intensive supervision, mental health or substance abuse treatment, and random drug testing. This approach is also common among health professional licensure boards. Indeed, use of professional licensure as leverage to require treatment may be particularly effective and carries the dual advantages of protecting the public and helping the impaired professional (8).

Advocates for attorneys subject to conditional admission to the bar, however, have expressed concern that these programs may be just another way of discriminating on the basis of psychiatric disability. Although no one would question the use of conditions for applicants who have demonstrated actual impairment in their practices, conditional admission based solely on a history of a psychiatric disorder or treatment raises the same concerns as outright exclusion. “A conditional license is inherently unequal to a full license to practice law . . . [since it] may be revoked for a failure to adhere to conditions that are not directly related to an attorney’s ability to practice law,” such as treatment noncompliance (4). Moreover, intrusive and onerous reporting and treatment requirements may be imposed as a condition of admission under these provisions.

In Louisiana, the imposition of conditions for bar admission was often one of the consequences of acknowledging a psychiatric or substance abuse history. That is precisely what happened to the attorney on whose behalf the Bazelon Center’s initial complaint was brought. When she disclosed that she had been treated for bipolar II disorder, which involves hypomanic but not manic episodes, she was required to release her psychiatric records from the previous five years. Her psychiatrist provided a report indicating that the condition was “mild,” that she had been compliant with treatment, and that she had not had episodes of depression or hypomania since he started seeing her. The bar committee’s own evaluator noted that “all psychiatric problems appear to be well-managed and stable at this time.” Nonetheless, she was subjected to five years of conditional licensure (9).

After the complaint was filed, DOJ notified the Louisiana Supreme Court that it was opening an investigation into the licensure practices under the court’s supervision. DOJ investigators spoke with applicants who believed that they had experienced discriminatory treatment, members of the bar admissions committee, and Louisiana officials responsible for the process. Despite preliminary indications that DOJ would find violations of applicants’ rights under the ADA, Louisiana declined to make the changes that DOJ thought necessary to eliminate its concerns. Hence, in February 2014, nearly three years after the investigation was launched, DOJ issued a 34-page letter of findings regarding Louisiana’s practices (9).

“We conclude,” wrote DOJ, “that the Court’s process for evaluating applicants to the Louisiana bar who have mental health diagnoses discriminates against qualified individuals with disabilities in violation of the ADA” (9). The report identified problems with the questions asked of applicants, which screened out persons with disabilities and subjected them to additional burdens, noting that more relevant information could be obtained by inquiring about past behavior instead. Moreover, insofar as such questions deterred future applicants from seeking mental health treatment, they were counterproductive to the goals of the Louisiana bar.

DOJ also pointed to the discriminatory burdens associated with Louisiana’s supplemental investigations of applicants who responded affirmatively to the screening questions, including requiring release of mental health records in their entirety and independent medical examinations at applicants’ expense. Conditional admission also came in for criticism, because DOJ concluded that it was used in a discriminatory fashion and that the requirements imposed were often unrelated to an applicant’s mental condition. Finally, DOJ found that applicants’ confidentiality was violated in the review process.

To remedy the violations, DOJ asked Louisiana to agree to a number of changes in its procedures, the most important of which involved a halt to the use of the problematic screening questions. Applicants who were denied bar admission or given conditional admission on the basis of their responses to these questions would have their status reconsidered. And use of conditional admission would be limited to applicants whose prior behavior indicated a specific need for treatment, monitoring, or other interventions. Although Louisiana could have elected to contest the DOJ findings in a lengthy court proceeding, in August 2014 DOJ and the state reached agreement on an extensive set of changes that essentially implemented the steps requested in DOJ’s letter of findings (1).

By bringing the complaint against Louisiana to a successful conclusion, DOJ has created a model for licensing procedures involving people with a history of a psychiatric diagnosis or treatment. Under the ADA, direct inquiry about mental disorders is prohibited, but inquiry about actual impairment in professional practice or other work-related settings can proceed. To the extent that conditions are placed on licensure applicants as part of their conditional admission, those conditions will need to be narrowly tailored to applicants’ specific situations. Other states must now be on notice that failure to abide by procedures that resemble those negotiated with Louisiana may turn DOJ’s investigative gaze to them as well.

While the DOJ inquiry into Louisiana’s practices was under way, the National Conference of Bar Examiners changed its model questions to mitigate concerns about discrimination (10). The new questions read: “Within the past five 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, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner?” “If your answer is yes, are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment or because you participate in a monitoring or support program?” Louisiana adopted these questions for its bar admissions process, and other states are likely to follow suit.

The extension of ADA protections to professional licensure is likely to result in a fairer process for people with mental disorders—and other conditions—without depriving licensure boards of the information they most need to protect the public.