When Bar Examiners Become Mental Health Experts

For law students with mental health concerns, there are sources of stress beyond the rule against perpetuities. One is the Character & Fitness Application.  A mandatory pre-requisite to sit for the bar exam.

Depending on the jurisdiction, the applicant may have to disclose mental health issues. The answer can have significant licensing ramifications. There can be a delay in admission to the bar.

As a student at Pitt Law, I filled out my Bar examiners application. I don’t remember how they phrased the mental health questions. The likelihood is high at that time that I was required to disclose treatment. I was one of the applicants the examiners would want to flag.

At the time I filled out the application, I was an alcoholic. I suffered from clinical depression. I was also bulimic. I disclosed none of it. I was not being dishonest. I had no idea I was an alcoholic. I did not know what depression or bulimia was. I had not sought treatment.

When I applied to sit for the Texas bar exam in 1987, my defaulted student loan (I corrected that) was the only issue. Once again, I did not disclose my problems. I added addiction to cocaine to my “resume.” To the best I can determine, here is how the question as asked in 1987:

“Within the last (ten) 10 years, have you abused, been addicted to, or been treated for the use or abuse of alcohol or any other substance, to include court-ordered treatment.”

Once again, there was no self-awareness. In my mind, I did not have a drug or drinking problem. There was nothing to disclose. I failed the exam. Cocaine and Jack Daniels were not great study aids.

The bar examiners put a person I know through the grinder. They required him to jump through mental health hoops to prove his worthiness to practice.

Atticus Finch is a licensed attorney in a large eastern city. He says,

There should be a ‘Miranda Mental Health’ warning on state bar fitness applications indicating that anything you disclose from a mental health standpoint may be extrapolated by someone completely unqualified make such decisions, that anything communicated may be extrapolated to its worst possible speculative outcome and prevent you from sitting from the bar exam or delaying your licensing after you have passed”

Of course, you’re dammed if you do and damned if you don’t. You disclose it and put yourself at the mercy of some faceless person who may have no mental health training, and if you don’t you’re dishonest on your application, and it can come back to haunt you after you have established your career. I was dammed because I was honest.”

Atticus passed the bar on his first attempt. He was eager to be admitted to practice. He also wanted to be as honest in submitting his character& fitness application. He says,

I disclosed everything I ever did wrong, including public urination that occurred years before. After four months had passed, I was told they needed records of an arrest for a failure to appear that was ultimately dismissed with no charges files. I felt compelled to disclose this because on the character and fitness application I was asked if I had ever been “temporarily detained” or “placed in cuffs” Same with the question that asked if I had ever been suspended or kicked out of a University. I had both these things happen to me, so once again gave them my narrative and explanation.”

After receiving his records, they informed Atticus that he would have to sit for an interview. He says,

“After going through each incident that I voluntarily disclosed, the person that interviewed me asked me if my parents had been divorced. He asked me if I saw a psychologist and what medication I was on. I, of course, told him the truth that, yes my parents were divorced and that I was currently seeing a psychiatrist for the sake of getting my ADHD medication prescribed.”

The examiner recommended that Atticus meet with the Character and Fitness psychiatrist. He says,

“Although I had no problem with drugs or alcohol, the counselor recommended to the committee that I meet with the drug and alcohol bar counselor for six months. “

The state bar demanded weekly appointments for six-months with a private therapist. Atticus had pay for the sessions. His therapist reported to the bar with monthly progress reports and evaluation at the end of the period. Atticus jumped through the hoops. He obtained his license to practice two years after passing the exam. Atticus says,

The ordeal of the mental evaluation was degrading and took a toll on my self-esteem. Not to mention, the delay in bar admission has hindered my marketability.”

The bar examiner told Atticus his application reflected someone not equipped to practice despite that fact that he was not convicted of a crime. He did not have an alcohol or drug problem. He says,

“During law school and after,  I never drank or drink more than 2 nights a week and not to the point of getting drunk. It appears my sin was one of complete honesty.”

We need change in several areas. How bar examiners ask mental health/addiction questions. How the process works once they flag an applicant. How law schools guide students through character and fitness process. Some change has occurred. We need to go further.

I reached out to Leah Rosa. She is a licensed professional counselor and former clinical director of the Louisiana Judges and Lawyers Assistance Program(JLAP). She says,

“I want to start off by saying that as a former clinical director for a JLAP, from both a clinical and systems perspective, some of the most difficult cases to work with were often Bar applicants. Clinically, they are emerging from a time in their lives where newfound freedom, alcohol, experimentation, and figuring out how to cope with “adulting” is a huge roller coaster.

As Bar applicants, they are part of a process where they are powerless. Very often, the first time they fully understand that DUI or arrest they had during their time as an undergraduate is going to affect their bar application, is after they’ve entered and completed a significant portion of law school. The bar application process feels shrouded in mystery, and often even law schools are hesitant to help applicants fill out their application to the bar.

Applicants to law schools are required to disclose their legal histories on their applications. If they are accepted, they often believe their mental health and legal histories are “approved.” They are surprised and frustrated that those issues come back to affect them currently, in such a serious way, by delaying or preventing them from being licensed.

Bar examiners and law schools hold the key to truly getting to the root of helping to improve the mental health of law school students, and future lawyers. Encouraging law school students to seek help early, even while in law school, is instrumental in changing the prevalence of advanced substance use disorders in the population of practicing attorneys. Students are often fearful that disclosing that they are struggling or have gotten help will make bar admission difficult or impossible. The inherent culture of law schools, the competitive, show-no-weakness academics when paired with a philosophy that all that matters is academic standing, is a recipe for disaster.

If the system were in place where law school applicants were actually encouraged to seek help, it could make a huge and positive change. Some professions do better with this issue. For example, Physicians have programs in each state that assist medical students, similar to LAPs or JLAPs. Many states, on their applications, ask physicians requesting licensure to disclose their mental health and substance use history. Applicants are asked if they are in good standing, and able to practice safely and check the box, “Yes” or “No.” There is a provision that states that if an applicant is currently involved in the state PHP and in good standing, they can check the yes box. It is a beautiful system that allows and even encourages physicians struggling with these issues to admit it, seek help, and have enough oversight to ensure that they are practicing safely.”

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery on April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession but on recovery in general. He can be reached at brian@addictedlawyer.com.