Are you violent?
That question, from a member of the local character and fitness panel examining new lawyer candidate Kathleen M. Flaherty back in 1994, was asked so quietly the official stenographer didn't catch it.
While at Harvard Law School in 1990, she had been treated for a bipolar condition, which she disclosed on her application for admission to practice law in Connecticut.
For the next two hours, Flaherty was put through a special kind of hell. "The questions I was asked were hideous," she said.
One questioner conceded they were "torture." Flaherty recalled: "I will always be grateful to her for that, but she said, 'You still have to answer them anyway.'" Flaherty was grilled about details of her mental health that "I literally hadn't talked to anybody [about] -- not even to my parents -- and that I had never even talked about to a therapist."
A graduate of Harvard Law School, Flaherty had already been admitted to the bars of Massachusetts and New York without incident. Connecticut in 1994 was distinctly different, and it still is. Its bar examiners require carte blanche access to the medical records of anyone who discloses they have been diagnosed with or treated for a mental illness.
However, under new Practice Book rules approved last month that will become effective in 2011, Connecticut law license candidates will no longer have to endure the kind of ordeal that Flaherty went through.
The revisions to Practice Book Rules 2-5 through 2-9 will likely lead to the elimination of some current questions and the creation of new ones -- though no final decisions have been made. However, the bottom line is that inquiries about mental health will be narrower, and will focus on specific conduct -- not just a diagnosis or history of treatment.
University of Connecticut clinical professor Jon Bauer has been working for more than 20 years to incrementally improve the questions on the admissions form, and he represented bar applicants in significant litigation against the Bar Examining Committee. In a May public hearing on the new rules, Bauer testified that the current admissions questionnaire has serious flaws.
The current questions, and the consequences for someone who admits having a mental health diagnosis, "still raise serious problems of compliance with the Americans With Disabilities Act and other anti-discrimination laws," Bauer testified. However, he concluded, these are "appropriately addressed in the proposed amendments to Rules 2-5 through 2-9."
After her ordeal of invasive questioning, Flaherty, now a legal aid attorney in Middletown, was admitted "conditionally," with a requirement to have her doctor report twice a year to the Statewide Bar Counsel's office.
If the doctor was a day or two late, she would get a phone call to find out why -- a process that felt a bit like being an ex-convict on parole, she said.
Under the new rules, conditional admission will be limited to five years or less, unless extended for cause. Michael Bowler, the statewide bar counsel, said he views his role as being less like a parole officer "and more like your mother -- we act out of concern." He said as a general rule, lawyers on conditional admission have behaved in an exemplary fashion, and those who have been diagnosed with anxiety, depression or bipolar disorder have almost invariably been able to obtain successful treatment.
Statewide Disciplinary Counsel Mark Dubois, who is charged with enforcement actions against lawyers, said few of the attorneys who have done the most damage to Connecticut clients have admitted to having any sort of mental health problems. He said they tend to escape the system's notice until serious damage is done.
Flaherty, in contrast, pointed out that she came under the system's most intense scrutiny without ever causing harm to anyone:
"The only people they catch are the people who already got help, figured out how to handle it, got through law school, and passed the bar exam," she said. "Then they answered the bar examiners questions truthfully. If any of those things didn't happen, the people wouldn't be in there answering those questions," before the character and fitness committees.
The Bar Examining Committee currently has questions on its application form that mental health professionals asked to be removed. Dr. Michael Schwarzchild, on behalf of the Connecticut Psychological Association, told the judicial Rules Committee his peers recommend eliminating three specific questions.
Question 34 on the current bar application form asks, "Since you graduated from college or for the past five years, whichever is shorter, have you been hospitalized for treatment of a mental, emotional or nervous disorder or condition?"
Question 35 is, "During the last five years, have you been treated for any of the following: schizophrenia or other psychotic disorder, bipolar or major depressive mood disorder; drug or alcohol abuse; [or certain other specified disorders]?"
However, Schwarzchild recommended retaining the conduct-focused Question 36: "Do you currently have any condition or impairment [including but not limited to substance abuse, alcohol abuse or a mental, emotional or nervous disorder] which in any way affects your ability to practice law in a competent and professional manner?"
Schwarzchild, in testimony before the rules committee in May, cited the distinguished careers of two lawyers who suffered from depression, former Missouri Sen. Thomas Eagleton and Abraham Lincoln.
A LITTLE LATE
Jan Van Tassell is the executive director of the Connecticut Legal Rights Project Inc., a 20-person non-profit agency established as a result of a federal consent decree. Its purpose is to assure that people with mental health problems have access to legal representation, and it focuses on preserving their housing and employment.
Van Tassell, a lawyer, says that questions which ask "do you have a disability" violate both the letter and the spirit of the ADA. "We've felt all along that they were unduly broad and invasive," said Van Tassell, "and did not carry out the purpose of the questionnaire itself, which is to determine whether somebody is in fact fit to practice law."
The ADA prohibits unduly discriminatory questions or unduly vague inquiries, she said, noting that landmark federal law is currently observing its 20th anniversary. "It may be 20 years, but that doesn't mean it's too late [for changes to the bar examination questions]. You can point your finger at the frustration, or point your finger at the progress, and I prefer to do the latter."
Anne C. Dranginis, the current head of the Connecticut Bar Examiners Committee, has indicated that she is receptive to changing the questions to focus more on performance, and not on simply having a history of treatment. She has proposed a clearer definition of "fitness."
Professor Bauer, who has been counseling students for 22 years at the University of Connecticut School of Law, said that he's seen "dozens of students and recent graduates who have experienced intense distress and humiliation at having to disclose mental health treatment as a condition of their admission."
If both the application questions and the follow-up procedures focus on the lawyer's ability to serve clients, this will respect their fundamental privacy rights, and, Bauer added, not discourage them from seeking appropriate treatment.
Dubois agreed. "We've gone beyond the day when society thought people [with mental illness] were afflicted with a weak spirit -- or an evil spirit," he said. "For the last half dozen years, I've been telling these students, get the treatment you need while in law school, rather than put it off and try to handle it along with the rigors of practicing law. It's better to get treatment now, because it won't go away."