Letter to the Washington State Bar Association

The letter asks the Washington State Bar Association (WSBA) to focus on an applicant's conduct not disability. WSBA should make decisions about who would be a good lawyer based on facts, not stereotypes. The questions in the bar application should ask about actual conduct, not mental health treatment history. The letter also asks WSBA to remove the form that requires applicants to close up of a hand holding a pen, writingreveal private health information. Finally, the letter asks WSBA to revise the admission to practice rules to protect all people with disabilities consistent with well-established federal and state law.

Sign the letter below if you agree.


Paula Littlewood
Washington State Bar Association
Executive Director
1325 4th Ave #600
Seattle, WA 98101

Dear Ms. Littlewood,

We, the undersigned, support an inclusive bar that represents the diversity of our state, including diversity regarding individuals with mental, physical, and sensory disabilities. For this reason, we urge the Washington State Bar Association (WSBA) to take action to address discriminatory inquiries into applicants with mental health issues.  Specifically, we respectfully request WSBA take the following steps:

  1. Tailor Questions 24 and 25 to remove any inquiry into an applicant's mental health disability; 
  2. Remove Form 8 that requires applicants to share protected health information regarding accessing mental health treatment;
  3. Amend Admission to Practice Rule (APR) 22(a) by striking the definition of fitness to include "the absence of any current mental impairment”;
  4. Amend APR 24.2 by striking 24.2(a)(10) and 24.2(d) in their entireties, and inserting in 24.2(e) all protected classes referenced in the Washington Law Against Discrimination in the explicit list of factors that will not be considered, including the addition of mental disability, as well as the additional protected statuses of sensory disability, whether an individual has a child, and honorable military discharge status.

Our support is based on the basic fact that there is absolutely nothing inherently wrong with a person’s character and fitness to practice law simply because he or she has a mental health disability. The bar association should focus its attention on facts, not stereotypes, by asking about actual conduct, not mental health treatment history. Both state and federal governments have recognized that relying on stereotypes is wrong and have made it illegal to treat people differently based on their disability status alone.

The Washington Law Against Discrimination’s (WLAD) purpose is to prohibit discrimination in Washington based on “the presence of any sensory, mental, or physical disability" as such discrimination of protected classes “threatens not only the rights and proper privileges of [the state’s] inhabitants but menaces the institutions and foundation of a free democratic state.”  RCW 49.60.010. WLAD goes on to provide individuals with mental health issues with the civil right “to the full enjoyment of any accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.” RCW 49.60.030.  Further, Washington provides greater privacy protection to Washington residents then the federal standard and mandates.  Const. Art. 1, § 7; see, e.g., State v. Parker, 139 Wn.2d 486, 493, 987 P.2d 73, 78 (1999) (stating “it is now axiomatic that article I, section 7 provides greater protection to an individual’s right to privacy than that guaranteed by the Fourth Amendment [of the US Constitution].”); see also RCW 18.83.110.

Our support is also consistent with the Americans with Disabilities Act (ADA) and the recent guidance from the Department of Justice (DOJ) stating that evaluating applicants based on their mental health status alone discriminates against individuals on the basis of disability.  As noted in the DOJ letters, singling out applicants with mental health conditions violates Title II of the ADA, which provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.  A “qualified individual” is “one who, with or without reasonable modifications . . . , meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).  Pursuant to the regulations implementing Title II, , “a public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability.”  28 C.F.R. § 35.130(b)(6).  Recently, in response to the DOJ guidance, several states (including Tennessee and California) no longer ask questions about the mental health diagnosis and treatment of individuals seeking to practice law. 

As a matter of state and federal law, it is inappropriate to use mental health diagnosis or treatment, without more, as a basis for concern about an applicant’s character and fitness to practice law.  Such an approach reflects the very prejudices and stereotypes that the WLAD and ADA prohibit and are designed to eliminate.  Instead, as the DOJ suggests, the WSBA admission process should focus on an applicant’s conduct and capabilities to practice law, not on an applicant’s status alone.  If the applicant has passed the bar exam and past conduct provides no basis for concern, there is no legitimate reason to inquire into the applicant’s mental health condition or treatment.

WSBA has a legitimate interest in assuring the character and fitness of its members.  However, WSBA’s goal of protecting the public against unfit practitioners and preserving the integrity of the profession is served by targeting questions to a person’s conduct rather than protected status. Several states including Illinois and Pennsylvania have bar applications that do not ask a single question regarding mental illness nor any information regarding membership in any protected class. Instead, the inquiries focus on conduct. The approach that Washington has taken fails to sufficiently address the protections afforded under the WLAD and ADA as well as the well-established fact that a mental health condition or history of treatment does not in itself preclude an individual from a successful and responsible life as an attorney.

There are many exceptional members of the bar who have a mental illness. None of them should have to experience such unfair treatment. Bar applicants have expressed that these inquiries into their mental health history are traumatizing and invasive of their privacy.  Additionally, such inquiries deter aspiring attorneys from seeking treatment for mental health conditions for fear of possible exclusion from the bar. It is perverse to incentivize forgoing treatment in order to avoid scrutiny into a person’s character and fitness and ultimately chills applicants from seeking treatment they need.  These individuals have sought treatment and actively managed their conditions.  It is tragic and wrong to admit a person into the competitive environment of a law school, have them succeed, and then subject them to screening, an invasive process, and possible exclusion on the basis of prior diagnosis and treatment alone.

Mental health inquiries compromise the profession. There is a great disparity between the number of people with mental illness in our society compared to our legal profession as evidenced by federal statistics showing over 20% of Washingtonians have a mental illness and the 2012 WSBA Membership Study which indicates that only 1.3 % of responding lawyers identified as having a mental illness. It is conceivable that WSBA’s examination of mental illness as a character and fitness issue chills applicants with mental illnesses from pursuing a legal career or promotes an environment that is hostile to practicing attorneys publicly identifying their mental health status.

The WSBA’s Membership Study findings also include that disability status is the second highest factor leading to attorneys experiencing professional barriers.  Notably, this population ranks the highest in overall intensity regarding “social” barriers or incidents when attorneys with disabilities widely reported being treated differently or excluded due to being a person with a disability. The WSBA’s study concludes with the following recommendation, “These results [regarding the frequency and intensity of barriers for attorneys with disabilities] are troubling and further targeted study will be needed to ascertain fully the sources and causes of barriers to the legal profession for this group and to identify steps to reduce the incidence.”  We agree with this recommendation and urge WSBA to respond to these documented disability barriers to the legal profession by addressing the barrier it has placed at the front door.  There is no more concrete barrier in this profession than impeding the ability to actually apply and become a member of WSBA.  Also, this barrier at admission signals to those practicing law and those seeking legal representation that having a mental health disability causes the legal system to look at them with suspicion.

WSBA is in a position to become a leader in removing barriers attorneys with mental illness face in the legal profession.  Ending the unfair practice of singling out applicants with mental health issues will enrich the diversity of the legal profession in Washington State and signal to practicing attorneys with disabilities to come out of the closet.  Amending the application and rule will be a big step in expressing to the bar and the general public that our profession is accepting of people with mental illness, whether they be lawyers or our clients.  

Accordingly, we join Disability Rights Washington, the Washington Attorneys with Disabilities Association, and the Governor’s Committee on Disability Issues and Employment in their request for the Washington State Bar Association to:

  1. Tailor Questions 24 and 25 to remove any inquiry into an applicant's mental health disability; 
  2. Remove Form 8 that requires applicants to share protected health information regarding accessing mental health treatment;
  3. Amend Admission to Practice Rule (APR) 22(a) by striking the definition of fitness to include "the absence of any current mental impairment”;
  4. Amend APR 24.2 by striking 24.2(a)(10) and 24.2(d) in their entireties, and inserting in 24.2(e) all protected classes referenced in the Washington Law Against Discrimination in the explicit list of factors that will not be considered, including the addition of mental disability, as well as the additional protected statuses of sensory disability, whether an individual has a child, and honorable military discharge status.

We look forward to WSBA's swift action in this matter.

If you have any questions or concerns about this letter, please contact Emily Cooper at Disability Rights Washington at 206-324-1521. Thank you.

Sincerely,

 

Washington State Law Schools:

 

 

Annette Clark, Dean
Seattle University School of Law

Kellye Testy, Dean
University of Washington School of Law

 

 

Jane Korn, Dean
Gonzaga University School of Law

 

 

 

Organizations and Firms:

 

 

Mark Stroh, Executive Director
Disability Rights Washington

Karla Zabel
BRIDGES Mental Health Ombudsman

 

 

Stuart Pixley and Noel Nightingale, Co-Chairs
Washington Association of Attorneys with Disabilities

Michaelene Manion
Kitsap County Aging & Long Term Care Advisory Council

 

 

Toby Olson
Governor’s Committee on Disability Issues and Employment

James Bamberger, Director
Washington State Office of Civil Legal Aid

 

 

Aurora Martin, Director
Columbia Legal Services

David Donnan, Executive Director
Washington Appellate Project

 

 

Christopher Carney and Sean Gillespie
Carney Gillespie Isitt PLLP

César Torres, Executive Director
Northwest Justice Project

 

 

Jenna Ichikawa
Stokes Lawrence, P.S.

Thomas Behrendt, Counsel Emeritus
Connecticut Legal Rights Project

 

 

Jennifer McAuliffe
Dorsey and Whitney LLP

Gordon Bopp, President
National Alliance on Mental Illness WA

WSBA Members:

 

 

Kenneth Henrikson, WSBA #17592
Former Character and Fitness Board Member

 

Mark Brenman, WSBA #8389
Former Washington State
Human Rights Commission Director

Michele Storms, WSBA #17555

Katie Keppinger, WSBA #35818

Shawn Murinko, WSBA #35057

Lorraine Bannai, WSBA #20449

Amy Muth, WSBA #31862

Julian Wheeler, WSBA #36365 

Lisa Brodoff, WSBA #11454

Brendan Taga. WSBA #40874

Katharine Bond, WSBA #42577 

Jillian Cutler, WSBA #39305 

Brian Rowe, WSBA #47010

Lisa Bradley, WSBA #20836

Lynne Wilson, WSBA #17606

Elizabeth Bottman, WSBA #11791 

Anne Dederer, WSBA #18872

Aline Carton-Listfjeld, WSBA #37532

Lisa Young, WSBA #30825

Jan Trasen, WSBA #41177

Andrew Biviano, WSBA #38086

Susan Wilk, WSBA #28250

Stacie Siebrecht. WSBA #29992

Rachael Seevers, WSBA #45846

Heather McKimmie, WSBA #36730

Linda Martinson, WSBA #45846

Mary Higdon, WSBA #20449

Michael Collins, WSBA #19375

Lisa Malpass, WSBA #34057

M. Teri Nolan, WSBA #40273

Linda Martinson, WSBA #45846

David Girard, WSBA #17658

Michael Smith, WSBA #14111

John Geyman, WSBA #17544

Eleanor Hamburger, WSBA #26478

Rachel Luke, WSBA #42194

 

 

Individuals:

 

 

Timothy Clement
Scattergood Fellow on Stigma Reduction

Patricia Renew
NAMI Chelan/Douglas

Jason Burt 

Elena Trebaol 

Christine Clark
The Troubleshooters extant

Anne Paxton

 

Anita Nath 

Andrea Kadlec 

Cory Johnson

Hannah Mitchell

Andrea Schiers 

Rebecca Yates 

John Freeburg

Joanne Rose

Tanya Atkinson
Alliance of People with disAbilities 

Laurie DeVol 

Rachael Cummings

Lauren Berkowitz

Darcie Karn 

Andrea Kelso 

Penny Christen

Mika Kawakami

Shelley Calissendorff 

Victoria Goetz 

Mona Rennie

Betty Shannon

Suzie Granstrom 

Marilyn Crandall 

Karen Yung

Claudia Ballheim

Helen Nilon, Behavioral Health & Wellness 

Amanda Johnston

Veronica Livermore

Breanne Schuster

Lee Wilson

Kevin Beals

Jessi Sandham

Alexandra De la Rosa

Linda Kehoe

Michael Morton

Jesse Page

Kerri Kline

Tina Pinedo

Madeline Dagman

Johanna Adu

Anna Guy

Glaser Jacobson

Gillian Mary Maguire

Susan Barron

Sage Graves


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