The Connecticut Bar Examining Committee has unanimously voted to change some of the questions it asks of new law license applicants regarding any mental health conditions they might have, making it less likely that law students will avoid being treated for substance abuse or depression out of fear it might ruin their careers.
Advocates for privacy rights, including former Supreme Court Justice David Borden and the American Civil Liberties Union of Connecticut, had called for questions to be narrowed or removed altogether. Borden questioned the value of even asking law license applicants about their mental health, saying, “it’s impossible to predict future misconduct.”
The CBAC was apparently listening. At its last meeting, the CBEC voted to change the questions it will ask about mental health in order to determine “fitness” of applicants seeking a law license. According to the changes approved at the April 25 meeting, starting in February 2015, the bar examiners will ask more narrow questions focused on the applicants’ conduct and competence, rather than general questions about any past diagnosis.
“The changes are better than I expected,” said Jon Bauer, a clinical professor of law at the University of Connecticut School of Law. “My biggest concern was that law students who might be experiencing problems with substance abuse or dealing with stress might be deterred from getting treatment because they would have to disclose it. The additional wording changes … will make it less likely that applicants will be under the impression they need to disclose health conditions that are being treated and not affecting their ability to practice law.”
According to draft changes on the CBEC website, the new question #34 will ask: “Within the past five years, have you engaged in any conduct that: (1) resulted in an arrest, discipline, sanction or warning; (2) resulted in termination or suspension from school or employment; (3) resulted in loss or suspension of any license; (4) resulted in any inquiry, any investigation or any administrative or judicial proceeding by an educational institution, government agency, professional organization, or licensing authority, or in connection with an employment disciplinary of termination procedure or (5) endangered the safety of others, breached fiduciary obligations or constituted a violation of workplace or academic conduct rules?”
If so, the applicants are required to explain and provide any defense.
David McGuire, an attorney with the ACLU in Connecticut, said the changed language would reduce the problem of trampling on applicants’ rights. “We’re encouraged by the recommendation to replace invasive questions about the applicant’s medical history with a less intrusive question about the applicant’s current ability to practice law,” McGuire said. “That’s a step in the right direction. We still have concerns, however, about people without medical expertise evaluating the sensitive medical records of those who acknowledge that a mental or emotional disability could affect their practice.”
The CBEC is still considering changes to its protocol regarding who looks over mental health and medical records when they are submitted as part of an application.
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 started 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 to fall in line with constitutional protections afforded by the Americans With Disabilities Act.