Wisconsin Lawyer: As I See It Applying to the Bar: Fit to Practice?:

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    February
    01
    2016

    As I See It
    Applying to the Bar: Fit to Practice?

    The character and fitness questions asked of applicants to the Wisconsin bar concerning their mental health history are likely overbroad and might violate the Americans with Disabilities Act.

    Aaron J. Loudenslager

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    fitness Wisconsin lawyers – especially newly admitted ones – probably remember going through the process of having the Wisconsin Board of Bar Examiners (BBE) investigate their character and fitness to practice law before being formally admitted to practice law in the state. This process involves, among other things, filling out an extensive questionnaire.

    In Wisconsin, as in many other states, bar applicants must answer sensitive questions regarding their mental health. Many of these questions relating to mental health have been criticized by a variety of sources, including courts, legal commentators, and the U.S. Department of Justice (DOJ); they argue that these questions violate the Americans with Disabilities Act (ADA). The DOJ’s recent investigation of Louisiana’s bar admissions process indicates that, in its view, some of the mental health questions Wisconsin currently requires bar applicants to answer violate the ADA. As a result, in the future the BBE may, as some other state bar examiners already do, use new questions written by the National Conference of Bar Examiners.

    Character and Fitness Investigations

    For an individual to practice law, he or she must “be admitted to the bar of the state where they want to practice law.”1 And to gain admission into the Wisconsin state bar – like every other state bar – individuals must demonstrate that they have the requisite character and fitness to practice law.2 In Wisconsin, as is typical in other states, a bar applicant fills out a bar application, including answering various questions, and then bar examiners conduct a thorough character and fitness investigation of that applicant.

    “The stated purpose of [a] character and fitness investigation is to protect the public from unfit or unscrupulous attorneys and safeguard the system of justice….”3 Character and fitness investigations are not a new phenomenon; these investigations “have existed since at least the eighteenth century,” but some surmise that these early investigations were more lax than their contemporary counterparts.4 For instance, when conducting character and fitness investigations today, “bar examiners probe into all aspects of an applicant’s life.”5

    Aaron J. Loudenslagercom loudenslager uwalumni Aaron J. Loudenslager, U.W. 2015, is a judicial law clerk for the Sauk County Circuit Court.

    While the purported purpose of character and fitness investigations is to protect the public, they have not always served this goal. For example, these investigations once were used to invidiously prevent women from being admitted into the bar.6 Later, “bar applications frequently sought information about an applicant’s immigration status, religion, and political affiliations” and, unfortunately, bar examiners used much of this information “to discriminate against applicants on the basis of their race or ethnicity, religious preferences, and political affiliations.”7 Questions such as these have been discontinued by state bar examiners.8

    “Today, bar examiners are singling out bar applicants with any history of mental health treatment” by – among other things – asking them questions about their mental health.9 Bar applicants are required to answer questions regarding their mental health on the ostensible basis that applicants with histories of mental illness may “present a danger to the public.” Even so, these questions have been controversial and criticized by many, including courts and legal commentators.10 The controversy of these questions has only increased since the passage of the ADA.11

    The Americans with Disabilities Act

    “Congress enacted the ADA in 1990 ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’”12 Specifically, “Title II of the [ADA] prohibits [state and local governments from] discriminat[ing] against disabled persons” on the basis of their disability.13 Thus, the ADA proscribes bar examiners from subjecting “qualified [bar applicants] with disabilities to discrimination on the basis of a disability.”14 Under Title II, a qualified individual with a disability is someone who meets “‘the essential eligibility requirements for … the participation in programs or activities provided by a public entity,’ with ‘reasonable modifications to rules, policies, or practices’ if required.”15

    The DOJ is responsible for promulgating regulations under the ADA.16 Under these regulations, public entities may not impose “‘eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”17 In demonstrating that eligibility criteria that tend to screen out individuals with disabilities are necessary, public entities cannot rely on stereotypes or generalizations about individuals with disabilities.18

    ADA Litigation Involving Mental Health Questions on Bar Applications

    Before enactment of the ADA, bar applicants challenged mental health questions on bar applications by alleging that the questions violated their right to privacy; ultimately, these challenges were unsuccessful in court.19 Even so, “[b]ar applicants and disability rights advocates began to attack [mental health questions] as discriminatory soon after the ADA went into effect” by filing lawsuits under the ADA.20 Many, but not all, of these suits were successful. Clark v. Virginia Board of Bar Examiners21 and In re Petition & Questionnaire for Admission to the R.I. Bar (Rhode Island)22are two emblematic cases of successful challenges to mental health questions on bar applications under the ADA.

    In Clark, a bar applicant challenged a question on the bar application that asked if she had received treatment or counseling for a mental disorder within the past five years. The district court held that this question was “framed too broad” and, therefore, violated Clark’s “rights under the [ADA].” In reaching this conclusion, the court concluded that 1) the question discriminated against people with disabilities by imposing additional burdens – in the form of further inquiry and scrutiny – on people with mental disorders; and 2) the question was not necessary for the Virginia bar examiners to perform their licensing duties.23

    A bar applicant’s treated mental disorder has no relation to current ability to practice law.

    In Rhode Island, the Rhode Island Supreme Court decided a challenge to multiple mental health questions on the state’s bar application. The challenge was originally brought by the Rhode Island branch of the American Civil Liberties Union, but the case reached the court on the Rhode Island bar examiners’ petition “for instructions on how to proceed” with revising, or not revising, the challenged questions. One of these questions was substantially similar to the one struck down in Clark.

    The Rhode Island Supreme Court ruled that the challenged questions violated the ADA and, thus, had to be rewritten.24 The court held that these questions violated the ADA, in part, because the special master it had appointed in the case had “concluded that there was no link between previous psychiatric treatment and a person’s ability to function effectively in the workplace.”25 In other words, the questions were not necessary for the state bar examiners to perform their licensing duties.

    yoga meditationIn contrast to the Clark and Rhode Island decisions, Applicants v. Texas State Board of Bar Examiners26 and ACLU of Indiana v. Indiana State Board of Law Examiners27 are examples of unsuccessful challenges under the ADA to mental health questions on bar applications. In Texas Applicants, three law students challenged, among other things, a mental health question they were required to answer on their bar applications. The challenged question, which had been revised after the enactment of the ADA, asked applicants whether they had been treated or diagnosed with specific mental disorders, such as schizophrenia, in the past 10 years. The court upheld this question because it, unlike the questions struck down by other courts in different cases during the early 1990s, was both necessary and “narrowly focused on the specific serious mental illnesses experts have advised the [state bar examiners] are likely to affect an applicant’s present fitness.”28

    In ACLU of Indiana, a law student and the ACLU of Indiana challenged various mental health questions that bar applicants were required to answer. Although the court struck down one of the challenged questions as contravening the ADA, it upheld the rest. One of the questions the court upheld was similar to the one upheld in Applicants v. Texas State Board.

    Another question the court upheld asked applicants whether they had a mental disorder that “currently affects, or if untreated could affect,” their “ability to practice law in a competent and professional manner.”29 It upheld this question because it purportedly “focus[ed] on the applicants’ current ability to practice law.”30 But as legal commentators have recognized, this conclusion is erroneous, because a bar applicant’s treated mental disorder has no relation to current ability to practice law.31

    Challenge to Wisconsin Bar Application Question

    While the mental health questions Wisconsin uses on bar applications have never been directly challenged under the ADA, a bar applicant once challenged the BBE’s requirement that – because she had a history of mental illness – she “undergo a psychological evaluation at her own expense.” The court never directly ruled on the merits of her claim, but it denied the BBE’s motion for summary judgment, because, among other things, there was not enough evidence in the record demonstrating that subjecting applicants with mental disorders to psychological evaluations was necessary for the BBE to perform its licensing functions.32 Unfortunately, past Wisconsin cases demonstrate that, at least as recently as 2003, the BBE has initially denied bar applicants admission to the Wisconsin bar based, in part, on the fact that they had a history of mental illness.33

    2014 DOJ Settlement with the Louisiana Supreme Court

    Since the enactment of the ADA, the DOJ has opposed state bar examiners requiring bar applicants to answer broad questions about their mental health.34 Building on its past efforts, “the DOJ took its strongest action to date” in 2014 “to bring state bar associations into compliance.”35 “First, [the DOJ] responded to a request from the Vermont Human Rights Commission asking whether Vermont’s bar applications violated the ADA” and it “sent a written response concluding that Vermont’s questions did violate the ADA.”36

    Second, the DOJ investigated “Louisiana’s bar admissions procedures.” The DOJ’s investigation of Louisiana’s bar admissions process – including the requirement that applicants answer sensitive questions regarding their mental health – “began when the Bazelon Center for Mental Health Law filed an administrative complaint with the DOJ on behalf of an applicant who was granted conditional admission to the Louisiana bar because of her mental health diagnosis.”37 After concluding its investigation, “the DOJ wrote the Louisiana Supreme Court regarding [its] findings.”38 The DOJ’s investigation found that Louisiana’s bar admissions process violated the ADA. Specifically, it concluded that the various mental health questions applicants were required to answer violated the ADA.39

    Since the enactment of the ADA, the DOJ has opposed state bar examiners requiring bar applicants to answer broad questions about their mental health.

    One of Louisiana’s questions, which the DOJ found violated the ADA, was nearly identical to the question upheld in ACLU of Indiana using the “if untreated” language.40 Currently, Wisconsin requires bar applicants to answer this same question.41 The DOJ found that the mental health questions Louisiana required bar applicants to answer, including the question using the “if untreated” language, violated the ADA because the “questions are eligibility criteria that screen or tend to screen out individuals with disabilities based on stereotypes and assumptions about their disabilities and are not necessary to assess the applicants’ fitness to practice law.”42 The questions were “not necessary to determine whether applicants [would] be able to fulfill their professional responsibilities as attorneys,” the DOJ concluded, “because a history of mental health diagnosis or treatment does not provide an accurate basis for predicting future misconduct.”43

    The Louisiana Supreme Court eventually settled with the DOJ and agreed, among other things, to change the mental health questions.44 In settling with the DOJ, the Louisiana Supreme Court denied that it discriminated against individuals with disabilities in contravention of the ADA.45 Even so, one law professor has described the settlement as “a watershed moment” and argued that
    “[i]t represents a clear statement that the DOJ will insist on scrupulous adherence to the letter and spirit of the ADA.”46

    National Conference of Bar Examiners Changes Questions

    The National Conference of Bar Examiners (NCBE), headquartered in Madison, has several responsibilities, including “administer[ing] many bar exams.” Not only that, it “also offers a standard [bar] application form, which states may adopt in full or in part.”47 After being contacted by the DOJ at approximately the same time the DOJ contacted the Louisiana Supreme Court, “the NCBE notified state bar associations [in early 2015] that it had revised its standard application form” by changing its questions regarding applicants’ mental health.48

    Notably, “[i]n the past, revision of the NCBE [model] questions has been an ‘indicator of future trends in state bar applications.’” The recent change in the NCBE’s model questions has been no different. Since 2014, eight states have stopped using the “if untreated” question on their bar applications. Even so, Wisconsin still requires bar applicants to answer the “if untreated” question on their application.49

    Conclusion

    Mental health questions on bar applications have been controversial for decades; their controversy has only increased since the enactment of the ADA. Courts have split on whether these questions violate the ADA, depending on how these questions are worded. While the DOJ has opposed broad mental health questions since the ADA was enacted, recent actions by the DOJ have demonstrated that it will vigorously investigate states that require applicants to answer broad mental health questions, and ensure that those state’s questions comply with the requirements of the ADA.

    Wisconsin, namely, the BBE, has yet to adopt the new NCBE model questions – the questions the DOJ has signaled its approval of. Whether Wisconsin will eventually adopt the new NCBE model questions is unclear. What is clear, though, is that if the BBE does not adopt the new model questions soon, it faces the risk of being the subject of a DOJ investigation. What the future holds for certain, only time will tell.

    Endnotes

    1 Aaron Loudenslager, Op-Ed., Wisconsin’s System of Evaluating Bar Applicants’ Character Intrusive, Badger Herald (Apr. 16, 2015).

    2 SCR 40.02; SCR 40.06; see also Stephanie Denzel, Second-Class Licensure: The Use of Conditional Admissions Programs for Bar Applicants with Mental Health and Substance Abuse Histories, 43 Conn. L. Rev. 889, 894 (2011).

    3 Alyssa Dragnich, Have You Ever…? How State Bar Association Inquiries into Mental Health Violate the Americans with Disabilities Act, 80 Brook. L. Rev. 677, 682 (2015) (footnote omitted); see also Denzel, supra note 2, at 894.

    4 Denzel, supra note 2, at 894.

    5 Dragnich, supra note 3, at 682 (emphasis added). Generally, bar examiners investigate a bar applicant’s “academic record, former residences, marital status, employment record, credit and financial history, military service, criminal acts, legal proceedings, and more.” Id. (footnote omitted).

    6 See Denzel, supra note 2, at 895 (“[A]s more formal reviews developed, character and fitness standards increasingly became a way to exclude certain classes of applicants from the bar.” (footnote omitted)).

    7 Id. (footnote omitted). For example, George Anastaplo, who later became a law professor, among other things, ”was denied admission to the Illinois Bar [in the 1950’s] when he refused to answer questions about whether he had ever been affiliated with the Communist Party or other subversive organizations.” Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93, 95 (2001).

    8 See Denzel, supra note 2, at 895 (“Over time, questions about discrimination and open discrimination on the basis of religion, ethnicity, and politics have fallen away.” (footnote omitted)).

    9 Dragnich, supra note 3, at 677.

    10 Denzel, supra note 2, at 896 (“One of the more controversial expansions has been the addition of questions seeking information about an applicant’s mental health or substance abuse history.”) (footnote omitted), 889 & n.1.

    11 See Bauer, supra note 7, at 95 (“[Mental health] questions [on bar applications] have generated intense controversy since the enactment of the Americans with Disabilities Act …” (footnote omitted)).

    12 Letter from Jocelyn Samuels to C.J. Bernette & J. Johnson et al. 16 (Feb. 5, 2014) [hereinafter DOJ Letter], (quoting 42 U.S.C. § 12101(b)(1)) (footnote omitted).

    13 Brewer v. Wisconsin Bd. of Bar Exam’rs, No. 04-C-0694, 2006 WL 3469598, at *4 (E.D. Wis. Nov. 28, 2006); see also 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits or services, programs, or activities of a public entity, or be subjected to discrimination by such entity.”).

    14 28 C.F.R. § 35.130(b)(6).

    15 Bauer, supra note 7, at 136 (ellipsis in original) (footnote omitted).

    16 See Dragnich, supra note 3, at 680 (“Congress required the DOJ to write the implementing regulations for the ADA.” (footnote omitted)).

    17 DOJ Letter, supra note 12, at 18 (emphasis added) (quoting 28 C.F.R. § 35.130(b)(8)).

    18 See id. at 17 (“Legitimate safety requirements necessary for the safe operation of an entity’s programs, services, and activities must be ‘based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.’” (quoting 28 C.F.R. § 35.130(h)); see also Bauer, supra note 7, at 136 (“If a practice that imposes discriminatory burdens on people with disabilities is not really needed to assess whether applicants would pose a risk to the public, it rests on the ‘generalizations or stereotypes’ that the ADA prohibits.” (footnote omitted)).

    19 Dragnich, supra note 3, at 679.

    20 Bauer, supra note 7, at 106.

    21 880 F. Supp. 430 (E.D. Va. 1995).

    22 683 A.2d 1333 (R.I. 1996).

    23 See Clark, 880 F. Supp. at 431, 442-43. The challenged question read: “Have you within the past five (5) years been treated or counselled for any mental, emotional or nervous disorders?” Id. (internal quotation marks omitted). An affirmative answer required an applicant to submit “specific treatment information” to the state bar examiners. Id.

    24 See Rhode Island, 683 A.2d at 1333, 1334, 1335-37.

    25 Dragnich, supra note 3, at 697 (footnote omitted) (citing Rhode Island, 683 A.2d at 1336).

    26 No. A 93 CA 740 SS, 1994 WL 923404 (W.D. Tex. Oct. 11, 1994).

    27 No. 1:09-cv-842-TWP-MJD, 2011 WL 4387470 (S.D. Ind. Sept. 20, 2011).

    28 See Applicants v. Texas State Bd., 1994 WL 923404, at *1, *2 & n.5, *9. The challenged question read, in relevant part: “Within the last ten years, have you been diagnosed with or have you been treated [for] bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?” The court also described “[b]ipolar disorder, schizophrenia, paranoia, and psychotic disorders” as “serious mental illnesses that may affect a person’s ability to practice law.” Id. at *3.

    29 See ACLU of Ind., 2011 WL 4387470, at *1, *8, *10.

    30 Id. This conclusion has been severely criticized by some academics. See, e.g., Dragnich, supra note 3, at 710 (“[T]he [ACLU of Indiana] court critically misread the question. The clause ‘if untreated could affect’relates to the future, not the present.”).

    31 See supra note 30.

    32 Brewer, 2006 WL 3469598, at *1, *11-12.

    33 See Denzel, supra note 2, at 898 (“Several cases in Wisconsin demonstrate that the bar there [in the late 1990s and early 2000s] continue[d] to deny admission to applicants with histories of substance abuse or mental health issues whose recent conduct does not support a finding of unfitness, despite endorsements of the applicants’ fitness by treating professionals.” (footnote omitted); id. (discussing In re Vanderperren, 2003 WI 37, 261 Wis. 2d 150, 661 N.W.2d 27, and In re Ripple, 2002 WI 15, 250 Wis. 2d 519, 639 N.W.2d 553).

    34 See Dragnich, supra note 3, at 699 (“The DOJ Civil Rights Division has long been involved in this issue, including filing amicus briefs in many of the cases [challenging mental health questions on bar applications] discussed above.”).

    35 Id.

    36 Id. at 699-700 (footnote omitted).

    37 Id. at 700.

    38 Loudenslager, supra note 1.

    39 See DOJ Letter, supra note 12, at 18.

    40 Compare ACLU of Ind. v. Indiana State Bd. of Law Exam’rs, No. 1:09-cv-842-TWP-MJD, 2011 WL 4387470, at *10 (S.D. Ind. Sept. 20, 2011) (“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?”), with DOJ Letter, supra note 12, at 5 (“Do you currently 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?”).

    41 See Dragnich, supra note 3, at 704-05 & n.201; accord Wisconsin Bar Applicant Questionnaire and Affidavit, Question 35(a), (last updated Oct. 26, 2015).

    42 DOJ Letter, supra note 12, at 18.

    43 Id. at 23 (citations omitted).

    44 See Dragnich, supra note 3, at 700-01.

    45 See Settlement Agreement Between U.S. and La. Sup. Ct. Under the Americans with Disabilities Act¶ 10 (Aug. 14, 2014).

    46 Dragnich, supra note 3, at 702.

    47 Id.

    48 Id. at 703.

    49 Id. at 702-03, 704-05 & n.201; Wisconsin Bar Applicant Questionnaire and Affidavit, supra note 41, Question 35(a).




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