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N.Y. Bar Association Calls for Mental Health Question Ban

Nov. 2, 2019, 5:19 PM

The New York State Bar Association wants the state court system to remove all questions about mental health history from the bar application.

The association’s House of Delegates voted Nov. 2 in Albany to adopt a report from a working group of attorneys recommending the step.

“The hard truth is that stigma around mental illness remains a significant barrier to treatment within the legal profession, and society at large,” bar association president and Greenberg Traurig shareholder Henry M. Greenberg said in a statement. “There is compelling evidence that mental health questions on bar applications are ineffective and unnecessary, and several states have already done away with them.”

The association’s working group of attorneys from different legal disciplines and backgrounds began in June examining whether questions asking about mental health history, diagnosis, or treatment need to be reworded or removed from the bar application.

The New York State Bar Association is the largest voluntary state bar association in the country with more than 70,000 members.

New York Bellwether

The Administrative Board of the Courts—consisting of the chief judge, presiding justices of the four Appellate Divisions, and the chief administrative judge—will review the association’s recommendation, said Lucian Chalfen, New York Unified Court System director of public information.

The bar application is continually updated and the board expects to review the issue in the coming months, Chalfen has said.

The Conference of Chief Justices in February passed a resolution calling on its members, state and territorial bar admission authorities to eliminate questions about mental health history from bar admission applications.

New York would be one of several states including California, Connecticut, Louisiana, Virginia, and Washington to enact similar prohibitions.

“New York has always been a bellwether state. Our voice has always been influential nationally, and I’m hopeful that New York will soon lead the way as well on this issue for other states that haven’t made the change yet,” Greenberg said in a phone interview.

Eliminating Stigma

The association’s working group focused on Question 34 of the character and fitness review, which is done by the four appellate departments.

It asks if the applicant has “any condition or impairment including, but not limited to a mental, emotional, psychiatric, nervous or behavioral disorder or condition, or an alcohol, drug or other substance abuse condition or impairment or gambling addiction, which in any way impairs or limits your ability to practice law?”

The work group found that questions related to mental disability, including No. 34, are “unnecessary” and should be eliminated from the application.

Law students are experiencing increased stress and mental health issues as a result of the demands of law school, along with rising student debt, and an uncertain job market, according to the report.

Students may fail to seek assistance for these problems because of the presence of mental health questions on the bar application, the report said.

The work group also raised concerns over the legality of asking questions related to mental disability under the Americans with Disabilities Act.

Several mental health and law associations across the state already have expressed support for the proposal to remove the question, including the Mental Health Association in New York State, an advocacy group.

NYSBA’s Executive Committee Nov. 1 also approved a proposal calling for an amendment to the state’s constitution to establish mental health as a matter of public concern. Physical health is already recognized in the constitution in this way.

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com