Friday, March 14, 2014

Being Responsible Gatekeepers

By Professor Michael Waterstone

This post originally appeared on

Who we allow, and even encourage, to join our ranks says a lot about our profession.  For too long, lawyers were almost entirely white males.  There is still a lot of work to do to make the legal profession more accurately reflect the society it serves.  But we have made progress.  Organizations like the California Bar’s Council on Access and Fairness have been looking examining and gathering evidence about how to increase the pipeline for underrepresented groups to become lawyers, in some cases with measurable successes.

Unfortunately, people with disabilities are still incredibly underrepresented.  The few studies to examine the issue have found that there are few, and in some states miniscule, attorneys with disabilities (for example, in 2009, Colorado estimated .15% of its lawyers had a disability).  Although in some cases these numbers may be an example of underreporting, by any measure they are too low.  This is in part based on a pipeline problem.  According to an American Bar Association study, individuals with disabilities are less likely to apply and be admitted to law school.  This means that the few students with disabilities can experience isolation when in law school.  And when they enter the profession, new lawyer with disabilities have fewer role models who can identify with their experiences.  Our profession reflects a lack of lawyers with disabilities in leadership positions in private practice or in bar associations. Unsurprisingly, lawyers with disabilities report problems with courthouse accessibility, accommodations, and in some cases outright discrimination.

Fortunately, things are improving.  Many law schools have formed student groups for law students with disabilities, and communication and coordination at the national level has improved with the National Association of Law Students with Disabilities.  Organizations like the Disability Rights Bar Association are committed to mentoring a next generation of advocates with disabilities.  And groups like the American Bar Association, through its Commission on Disability Rights, are committed to focusing on and improving the access and experience of lawyers with disabilities.  These efforts improve our entire profession.
But one group still faces outmoded and even unlawful barriers to entry.  Too many state bars, in their licensing capacity, ask overly intrusive questions about treatment for mental illness under the guise of screening for fitness to be an attorney.   These questions screen for status as someone who has been diagnosed or undergone treatment for a mental health condition, instead of accurately gauging whether the condition manifests in conduct which could be (stripped of prejudices and assumptions about how people with mental illness “ behave”) injurious to clients or the bar.  The National Conference of Bar Examiners (NCBE) has questions which ask about diagnosis and treatment for various psychotic or other conditions.  Over 25 states currently use one or more of these questions.

As an example of the problems this creates, consider the case of a 2008 graduate of a major, accredited law school in Louisiana.  As required by Louisiana’s version of the NCBE character and fitness questionnaire, she disclosed on her application that she had been diagnosed with Bipolar Disorder, and also truthfully stated that she did not believe her impairment, treated or untreated, would affect her ability to practice law.  Yet, based on her initial disclosure, she was required to provide psychiatric records for the previous 5 years.   Despite a letter from her treating psychiatrist that her condition was under control and had never interfered with work or academic commitments, the Louisiana bar only granted the applicant conditional admission.  She was required to sign a five-year “agreement,” consenting to burdensome conditions including potentially appearing at her own expense before a psychiatrist designated by Louisiana’s Disciplinary Counsel to assess her progress and allowing unfettered access to her mental health records.  Even with these conditions, a probation monitor and Louisiana’s Disciplinary Counsel were empowered to contact her employer or supervising attorney to determine or discuss her professional activities and observe her in the workplace.  She was also instructed to disclose to any employer that her bar admission was only conditional (the other grounds for which include a history of crime, drug or alcohol abuse, serious misconduct, or severe financial mismanagement).

Entering a new profession in difficult economic times is tough enough.  These stigmatizing and intrusive conditions are unacceptable.  Fortunately, in this instance, the Department of Justice has become involved, conducting an investigation and issuing a letter of findings.  Although this case is extreme, it is not isolated.  Stigma and bias against people with disabilities, particularly people with mental disabilities, exist in our society, and unfortunately that means they exist within our profession.  We must be vigilant against methods of inquiry which, even under the best of intentions, remove and deter qualified applicants from our ranks.  We can and should do better.

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