Michigan Supreme Court to consider mental health questions on bar exam application

By Lee Dryden
BridgeTower Media Newswires
 
DETROIT — The Michigan Supreme Court is seeking public comment as it mulls whether questions about mental health on the Michigan Bar Examination application should be revised or removed.

A special administrative inquiry on the matter was issued Jan. 23. Comments are due by May 1 and a public hearing will be scheduled.

“The court seeks input on whether Michigan should continue to ask about an applicant’s mental health history, or ask different questions related to this topic,” the order stated, after listing several states in which mental health questions were eliminated.

In concurring with the order, Justice Richard H. Bernstein raised several questions that he hopes the public will address.

“Whether questions inquiring into an applicant’s mental health should be included on the application for the Michigan Bar Examination is a significant question that not only affects law school graduates aspiring to enter the legal profession, but also one that asks us to fundamentally examine the consideration and accommodations our state is providing to those with disabilities,” he wrote.

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The issue

As part of the bar application process, applicants must submit an affidavit that provides information about their life, including their mental health and treatment history.

Question 54a asks: “Have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or ability to cope with ordinary demands of life? If yes, provide the names and addresses of all involved agencies, institutions, physicians or psychologists or other health care providers and describe the underlying circumstances or the diagnosis, treatment or hospitalization.”

Question 54b asks: “Have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?”

The Board of Law Examiners is charged with assessing “whether an applicant manifests any mental health or substance abuse issue which impairs or could impair an applicant’s ability to meet the essential eligibility requirements to practice law.”

The board supports applicants “seeking mental health and/or substance abuse treatment, and views effective treatment by a licensed professional as enhancing an applicant’s ability to meet the essential eligibility requirements.” Applicants are instructed that they do not need to provide information that is “reasonably characterized” as situational counseling such as stress counseling, grief counseling, and domestic relations counseling.

The issue is being considered in the context of the Americans with Disabilities Act, 42 USC 12101 et seq., by the United States Department of Justice Civil Rights Division, according to the opinion. In response to a complaint filed by a Louisiana bar applicant, the DOJ conducted an investigation “focusing on several specific instances in which some individuals with certain diagnoses (but without evidence of conduct that required continued monitoring) were required to agree to terms of conditional admission for five years.”

The DOJ concluded that Louisiana should modify its application to focus on an applicant’s conduct, not diagnoses or treatment for such diagnoses, the order stated. After the DOJ report, the National Conference of Bar Examiners revised its standard questions related to mental health to focus on the applicant’s conduct.

States that have eliminated mental health questions include: Alaska, Arizona, California, Illinois, Maine, Massachusetts, New Mexico, Pennsylvania, and Tennessee.

Questions raised

Bernstein’s questions include how, if at all, is inquiring about applicants’ mental health an effective means of assessing their “good moral character” or “fitness and ability” to practice law.

He also asked, “What standards or guidelines are used in: (a) evaluating an applicant’s initial answers to the mental health questions on the bar application, (b) regulating any subsequent investigation into an applicant’s mental health history, and (c) determining whether an applicant’s mental health history should preclude his or her acceptance into the bar?”

Bernstein inquired whether asking mental health questions deters prospective applicants from seeking rehabilitative counseling and treatment, or detracts from the effectiveness of professional help. He mentioned the DOJ citing evidence that “confidentiality is a critical element of the treatment relationship and that fears of disclosure could discourage individuals from seeking professional help.”

Bernstein also asked “what purpose is served by asking mental health questions that is not already served by other questions asked on the bar application.” Information gathered on the application includes criminal history, employment background, academic record, professional licensures, financial history, involvement in civil litigation, and residential past, along with disciplinary actions.

“Are these questions and answers sufficient to assess an applicant’s fitness and ability to practice law? Said differently, what do mental health questions add to the bar application that is not already covered in this already intensive inquiry?,” he wrote. Bernstein asked about the impact in the states that eliminated mental health questions, and whether answering affirmatively to the mental health questions imposes any additional burdens on an applicant or causes delays in the processing of an applicant’s application.

Comments must be submitted to the Office of the Administrative Counsel, referencing ADM File No. 2016-46, by May 1 via ADMcomment@courts.mi.gov or 925 W. Ottawa St., Lansing, Michigan, 48915.

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