EDITORIAL: Don’t ask about mental health on bar application

Question is unnecessary, might discourage treatment

What do you do about a legal requirement that promotes discrimination, discourages young people from joining a profession, possibly violates federal law, discourages people from getting necessary treatment, and which has proven to be an ineffective approach to the problem it was intended to address?

If you’re a good and decent government, you get rid of it.

That’s the growing consensus in the legal community and mental health field regarding a question that appears on the application to join the New York state bar.

Way down on the application form to become a practicing attorney in New York  is an entire section devoted to a candidate’s mental health.

Question 34 of the application asks applicants whether they’ve been diagnosed with, treated for or hospitalized for any of a multitude of mental health issues, including substance abuse. If you answer yes to any of them, you’re required to go into detail about your condition and treatment or drugs you’ve gotten. It also asks applicants whether they believe their condition could affect their ability to practice law. (How are they supposed to know?)

If you’re an applicant undergoing stressful situations due to the pressures of law school, college debt and other issues, or if you’re dealing with unrelated mental health and substance abuse issues from your past, you’re likely to either answer the question falsely in order to keep that information private or, more dangerously, refuse to get the treatment you need to deal with your mental health issues, for fear that even seeking help will prevent you from joining the profession.

One might look at that question on the surface and think that it’s not so bad to ask about that sort of thing. After all, who wants a lawyer with mental health issues?

The reality is that such poorly worded and thought-out questions are not only harmful to the individual applicant, but have proven to be ineffective and unnecessary in weeding out people who might be unqualified to become lawyers.

Almost all of the state’s law school deans, numerous bar associations including the New York State Bar Association, several mental health organizations and judicial organizations oppose asking the question. And several states have already done away with mental health questions.

There’s also concern about whether the question is even legal under the Americans with Disabilities Act, which prohibits employers from asking job applicants about mental or physical disabilities.

Given the fact that the question fails as a precursor for ineffective lawyering, that it discourages potential lawyers from seeking mental health care, that it potentially violates federal law, that so many legal- and mental health organizations oppose the question, and that it falsely and harmfully promotes the stigma of mental health, it’s clear this question needs to be removed from the application process for becoming a lawyer in New York.

Categories: Editorial, Opinion

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