depressed businessman
(Photo by AndrazG / iStock)

Dan Bowling, who holds faculty appointments at Duke Law School and the University of Pennsylvania’s graduate program in positive psychology, returns as our guest blogger.

Are state bar admissions standards for character and fitness unintentionally putting lawyers at risk of suicide? Some experts think so—and I just might agree.

CNN’s website recently ran a sensational story, asking “Why are Lawyers Killing Themselves?.” It notes that “prominent lawyers keep turning up dead.” Citing data from the Centers for Disease Control and Prevention, it claims lawyers have one of the highest proportions of suicides among all occupations, noting that they are almost four times as likely to suffer from depression than non-lawyers. The depressive tendencies begin in law school.

Numerous research studies have shown that law students suffer from higher levels of stress, anxiety, and depression than the overall populations—conditions that can carry over into practice if untreated.

However, according to the Dave Nee Foundation, state bar character and fitness tests, which inquire into the mental health history of the applicant, could have a chilling effect on law students who might need treatment. (Named after a popular student at Fordham Law School who killed himself shortly after graduation, the foundation is dedicated to stopping lawyer suicide. I am a volunteer on the Foundation’s advisory board). According to a white paper from the Foundation, “evidence suggests that the character and fitness standards continue to discourage law students from sharing their histories and seeking care.” Some of my law students have told me the same.

The key to battling depression is treatment. Depression is a medical condition, not a sign of weakness, and the sooner an individual can seek help—through therapy and/or pharmacology—the better. It is a message that needs to be heard. The Foundation aims to change how the bar treats depression—not through eliminating standards, but by reframing them in a manner to encourage rather than discourage treatment.

That view is gaining traction with the American Bar Association. In 1994, the ABA adopted a resolution encouraging bar examiners to “tailor questions concerning mental health and treatment narrowly,” and not to discourage at-risk individuals from seeking treatment.

The Department of Justice is also listening. On February 5, 2014, it informed the Louisiana Bar that questions regarding mental health diagnoses and treatment violate the American with Disabilities Act. The DOJ’s action reverberates well beyond the land of gumbo and gators; the challenged questions are from the standard National Conference of Bar Examiners questionnaire used by many states.

No one—not the DOJ, the Dave Nee Foundation, nor I—thinks that the mental health and competence of a person seeking bar admission is irrelevant. Lawyers and our profession hold a unique, privileged place in our society, and are entrusted with the life, liberty, and property of their clients. But there is a big difference in asking an applicant why he tossed a cinder block through his neighbor’s window, high on blue meth, as opposed to asking why he has a prescription for Lexapro.

Balancing these competing interests isn’t easy, but the Foundation plans to take a stab at it. It is assembling a team of legal scholars, bar leaders, and mental health experts to frame new questionnaires that both protect the profession and the public while helping to “educate and ensure access to quality treatment.” Once it does so, the Foundation plans to work with the ABA and state bar associations to create and promote model character and fitness guidelines.

Right now, mental health questionnaires date to the early 1970s—the decade of One Flew Over the Cuckoo’s Nest. There have been tremendous gains in the diagnosis and treatment of mental health issues since then. Isn’t it time for state bar associations to catch up?

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