2.05. Requirements: Other Obligations

States can impose obligations on an applicant in addition to the three set out above.  Here are some to consider:

• Mental health status:  A controversial area that bar examiners want to know about is an applicant’s mental health status.  If you think about it, admissions officers should inquire about serious conditions that could impact how a lawyer treats a client.  However, there is a real concern that admissions committees might go too far and seek to deny admission to someone because they have a mental health condition alone.  If a committee is discriminating against someone because they have a condition, it raises concerns under the Americans with Disabilities Act (ADA).

The application to sit for the Indiana Bar Examination includes the following questions:

(1) Have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?

(2) From the age of 16 to present, have you been diagnosed with or treated for any mental, emotional or nervous disorder?

(3) Do you have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

If an applicant responds “yes” to any of these questions, they must then provide a release for all of their medical records.  These questions were challenged as violating the ADA. ACLU v. Indiana Members of the Indiana State Bd. of Law Examiners, 2011 WL 438470 (S.D. Ind. 2011)

You know that the purpose of the application process is to identify individuals who have traits or conditions that might cause them to harm clients in the future, as the Indiana court recognized: “clients entrust their attorneys with their money, their property, their familial status, and, often, their freedom.  Obviously, an attorney in the throes of a debilitating bout of mental illness could wreak havoc on his clients’ lives.”  However, it is not appropriate for a state to deny someone a license just because they have a mental condition.  In short, if the questions provide the basis for determining whether the condition could cause the applicant to harm clients in the future, they are valid but, if they do not serve that function, they are invalid.  Based on this tension, do any of the questions give you pause?

As to the Question (1) which is unlimited in time, the court held that the conditions listed in this question were serious enough and pose a significant enough chance of reoccurring that the board was justified in asking about them.  As to Question (2), the court described it as “the most expansive question in the country.”  It asks about a wide range of conditions (beyond those that are serious and recurring) and extends the time frame from the time the applicant is 16.  If the applicant is 45, how in the world does the mental condition at age 16 have anything to do with his current condition to practice law?  The court held that it did not and that it violated the ADA.  Question (3) focuses specifically on current conduct that could impact the ability of an applicant to represent clients, and therefore, the court upheld that question.

Almost all states have (or had) questions similar to Indiana.  Under the Obama Administration, the Department of Justice got involved and began to challenge these questions.  In 2014, the Department of Justice informed the Louisiana Supreme Court that the questions on its bar application (similar to Indiana) violated the ADA.  In its letter to the court, the Department of Justice stressed the difference between an applicant’s status as someone with a mental condition and an applicant’s conduct as a result of having a mental condition.  Inquiring into status is inappropriate, while inquiring into conduct is appropriate: “Inquiring about applicants’ medical conditions substitutes inappropriate questions about an applicant’s status as a person with a disability for legitimate questions about an applicant’s conduct. . .  Questions designed to disclose the applicant’s prior conduct would serve the legitimate purpose of identifying those who are unfit to practice law or are unworthy of public trust and would do so in a non-discriminatory manner.”[1]  Ultimately, the Department of Justice and Louisiana entered into a settlement agreement, and Louisiana agreed to change their questions to focus on conduct and not condition.  I do not know if the Trump Administration Justice Department will see this as a priority to pursue, but I would expect that states will voluntarily change their application questions if for no other reason to avoid a lawsuit like the one filed in Indiana.

• Massachusetts: Legal Aid Section:  Starting in June 2016, the Massachusetts bar exam includes as part of its state essay questions, a topic called “Access to Justice.”  This topic will include areas of the law that are traditionally under served by lawyers, including: landlord-tenant, divorce, debt collection (i.e. predatory lending), and health care directives.  The goal of adding this new section to the bar is to ensure that Massachusetts lawyers are minimally competent to address the problems most often faced by low and middle income individuals.  The bar also saw this as a way to encourage law schools to provide more emphasis on the needs of the low and middle class – if law schools know that their graduates must have some familiarity with these areas to pass the bar, they will be more likely to offer courses that teach these subjects.

• Undocumented immigrants:  In 2008, Florida adopted a requirement that all applicants had to produce a birth certificate or immigration documents.  In 2014, an applicant that had graduated from Florida State University School of Law, but had been brought to the U.S. as a child and his parents overstayed their visas – which meant that he was not lawfully in the country – and applied for a license.  There is a federal statute that prohibits a state from granting certain public benefits (such as a law license) to undocumented immigrants unless the state has enacted a statute that would permit it.  Florida has not adopted such a law (although California has).  Therefore, the court held that until the Florida legislature passed a law, undocumented immigrants cannot be admitted.[2]  In a very interesting opinion rejecting the Florida and California approach, the New York Supreme Court rejected the argument that a federal statute could dictate how a state could go about admitting undocumented immigrants to the state bar.  Relying on the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”), the court held that Congress could not dictate to the states how to determine the eligibility requirements for lawyers – that issue is left to the states (and more specifically the judiciary in the states).  The court then held that if undocumented applicants satisfied all other requirements, they could receive a license in New York.[3]   

[1] Letter from the U.S. Department of Justice, Civil Rights Division to Louisiana Supreme Court, https://www.ada.gov/louisiana-bar-lof.pdf (last visited March 27, 2017).

[2] Florida Bd. of Bar Examiners re Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar, 134 So. 3d 432 (Fla. 2014).

[3] In re Vargas, 10 N.Y.S.3d 579 (N.Y. 2015).