Opponents of the questions have expressed concern that law students are avoiding treatment for subtance abuse and depression for fear they will not be approved for admission to the bar.
In late December, former Connecticut Supreme Court Justice David Borden appeared at a meeting of the Connecticut Bar Examining Committee to discuss the rules requiring applicants answer such questions. He called the questions “overly broad,” and suggested that only medical professionals should be authorized to review mental health information.
And even then, Borden continued, their value of such questions to determine “fitness” of someone seeking a license to practice law is not clear. “It’s an impossible job to predict future misconduct,” he said.
The American Civil Liberties Union of Connecticut agrees with Borden’s position, and takes it a step further. The organization said the mental health inquiries the CBEC uses continue to violate the Constitution and Americans with Disabilities Act. The organization has launched a renewed call for the questions to be banned, a position that has some support.
“My biggest concern is that the questions by the bar examiners ask are counterproductive,” said Jon Bauer, a clinical professor of law at the University of Connecticut school of law. “Many law students who might be experiencing problems with substance abuse or dealing with stress are being detered from getting treatment. That is a problem.”
The mental health questions for bar applicants have been a hot button issue in Connecticut since 2000, when the mental health inquiry began including questions about depression and requesting psychiatric records.
Following public outcry, the rules governing the mental health questions were amended in 2006 and again in 2010, resulting in a narrowing of the inquiries in order to fall in line with constitutional protections afforded by the Americans With Disabilities Act.
The questions were changed both times to more narrowly focus on the conduct of the individual applying for bar admission, rather than any illness they might have.
For instance, the wording of one of the questions used in the February 2006 bar application was: “Within the past five years, have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia or any other psychotic disorder or condition?”
In the comparable question on the most recent application for admission to the bar, the CBEC asked, “During the past five years, have you engaged in conduct or behavior which caused you to be voluntarily or involuntarily treated for” a long list of disorders.
Those “disorders” include: “schizophrenia, bipolar or major depressive mood disorder, drug or alcohol abuse, impulse control disorder, kleptomania, pyromania, explosive disorder, pathological or compulsive gambling.”
If the applicant does have a relevant history, they are required to turn over mental health records, for the CBEC to review.
But critics say that the changes to the questions are virtually insignificant, and the inquiries continue to amount to discrimination against disabled applicants. When he addressed the CBEC board, Borden suggested that requiring applicants to turn over records “could be humiliating to the individual.”
Borden said a better practice might be to have a qualified medical professional “recieve and review the records.”
‘Violates Privacy Rights’
In late January, David McGuire, a staff attorney with the American Civil Liberties Union of Connecticut, and Sandra Staub, the group’s legal director, sent a letter to CBEC officials calling it to stop asking the questions of attorney hopefuls.
In the letter, the ACLU lawyers claim the state’s use of the questions violates disability discrimination laws. “Candidates are exposed to unnesassary and probing questions on their mental health histories,” McGuire wrote in the Jan.31 letter, which was addressed to the CBEC chair, former Superior Court Judge Anne Dranginis, who now practices at Rome McGuigan.
Requiring applicants “to provide confidential medical records to people not qualified to interpret them,” is irrelevant to the current fitness of an individual,” McGuire wrote. “This forced disclosure of information violates privacy rights and creates uncessaary delays in bar admission.”
Dranginis did not imediately respond to requests for comment on the letter. Other members of the CBEC board of directors deferred comment to her. However, one CBEC board member, who did not wish to be identified by name, said board members expect that changes will soon be made to the mental health inquiries. The board member could not say what will be changed.
Adding to the debate is a recent opinion by the U.S. Department of Justice, which found that while states face “great responsibility” to make sure all licenced attorneys are competent and worthy of public trust, discrimination continues to be a concern. With that in mind, the agency suggested that states focus their inquiries into character more closely on applicant’s conduct, rather than any diagnosis the individual may have recieved.
“Questions and inquiries based on an applicant’s status as a person with a mental health diagnosis do not serve the worthy goal of identifying unfit applicants,” the Department of Justice wrote in its opinion.