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In the latest application form for the Connecticut bar exam, a newly-phrased question requires candidates to divulge whether, in the past five years, they have been diagnosed or treated for “clinical depression or any other psychotic disorder/condition.” Jon Bauer, clinical professor at the University of Connecticut School of Law, says the question is bad medicine — and bad law. First of all, he noted, depression is not a psychotic disorder, but is actually classified as a “mood disorder” in current mental health literature. It’s also very common. Unlike the actual psychotic disorders listed in question 44 — bipolar disorder, schizophrenia and paranoia — clinical depression affects a comparatively broad section of the populace. Bauer says one in twenty people are affected, with women twice as likely as men to be so diagnosed. The laws the question may well violate, says Bauer, are the Americans With Disabilities Act and the Connecticut Constitution, Article XXI, which prohibits discrimination on the basis of mental or physical disability. Bauer said the question appears overly broad and is phrased in a manner that hasn’t been tailored narrowly to achieve a legitimate government purpose. Bauer has extensively researched the bar exam application questions in light of their impact on individuals with disabilities. In 1993 he represented Richard Roe, a student who declined to answer an open-ended question regarding diagnosis or treatment for mental, emotional or nervous disorders. Rather than delay taking the exam, Roe dropped his federal action and answered the question. A subsequent client, Chrysler Szarlan, also declined to answer the same question. An employee of the Middletown-based Connecticut Legal Research Project, Szarlan settled with the examining committee under a stipulation that it would drop the question in her case and hold public hearings on possible substitute questions. The hearings were held, but Connecticut’s questions remained broad and intrusive, in Bauer’s view. On May 13, 1998, he sent a detailed letter to the Bar Examining Committee suggesting the removal or modification of four questions that seem to violate the ADA and the state constitution. Questions 40, 41, 43 and 44 ask whether applicants have ever been dependent upon, treated or counseled for drug or alcohol abuse, or admitted to an institution for mental, emotional or nervous disorders. The only question with a time limit is 44, the specific five-year inquiry about diagnosis or treatment for bi-polar disorder, schizophrenia, paranoia, clinical depression or any other psychotic disorder/condition. Raymond E. Beckwith, of the 24-member bar examining committee, said the new language on clinical depression was the only new addition to the questionnaire, and so far has generated little controversy. “There certainly has been no groundswell among the applicants,” said the Trumbull, Conn., solo. A DOCTOR’S NOTE Since the ADA was enacted in 1992, the committee has granted a number of conditional bar licenses, in which lawyers with a treatable condition must report regularly to the committee that they are taking their medicine, or other steps to assure fitness to practice. Bauer said that the prospect of having to practice under a conditional license, or the prospect of broad-ranging questioning by the committee, may discourage law students from seeking professional help when it’s needed. Beckwith questions whether anyone can know about such a “chilling effect” without actual research or data. Furthermore, questions that ask about ongoing treatment may be overbroad, as in the example of a person who has been sober for 10 years but still attends AA meetings, Bauer noted. Other states, in response to ADA challenges, have narrowed the scope of mental health and substance abuse questions to specific time periods. Bauer said a one-year period is sufficient to assess whether “a serious, recent problem exists.” In New Jersey, for example, the Supreme Court adopted the following question: “Have you, within the past twelve months been admitted to a hospital or other facility for the treatment of bipolar disorder, schizophrenia, paranoia or any other psychotic disorder?” Currently Bauer is not representing any client with an action against the Bar Examining Committee. In his 1998 letter he notes that he has informally counseled law students with histories of mental health or substance abuse treatment. “Almost invariably, the requirement of disclosure, and the process that follows, produces intense feelings of anxiety and embarrassment, and a sense of demeanment.” Beckwith, who has followed the controversy of balancing public protection and individual rights in the bar fitness issues, says that the committee has received very few complaints from bar candidates. “In general, it’s an able, capable group of people we’re dealing with here,” he says. Bauer said clinical depression and great lawyering can and do co-exist. History’s best recognized example, he says, is none other than Abraham Lincoln.

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