DOJ Mandates Changes To Mental Health Care Questions For Attorney Licensing

The ABA Journal reported that "[t]he U.S. Department of Justice said that states may examine applicants' prior behavior, but not their mental health status, when determining whether to admit them as practicing lawyers."

According to the article, "[t]he Justice Department has given 'a pretty clear statement that it violates federal law to inquire into mental health diagnosis and treatment, rather than conduct, during the attorney licensing process."

"As part of the application process, prospective attorneys fill out forms provided by the NCBE, including an application with 28 questions intended to help discern character and fitness to practice law. The conference estimates that about half of the country's states use NCBE forms, either for all their applicants or for a class of candidates, such as those from out of state."

There were three questions at issue "in the NCBE forms that asked about the status of an applicant's mental health, alcohol and substance abuse, and whether applicants have emotional or mental disorders that, if left untreated, could affect their ability to practice law. Applicants who have responded affirmatively to particular questions about their mental health were then asked to provide additional information, including treatment records."

Since the DOJ's statement was released, the NCBE has said that "[t]he question that asked whether the applicant had been diagnosed or treated for 'bipolar disorder, schizophrenia, paranoia or any other psychotic disorder' within the past five years is being retired. The new question asks whether the applicant has within the past five years exhibited any conduct or behavior that could call into question the applicant's ability to practice law "in a competent, ethical and professional manner."

This is a step in the right direction because we do not want prospective lawyers to fail to get mental health treatment because they are afraid that it might affect character and fitness.


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