No one should be forced to choose between the ability to practice law and their rights to privacy and to be free from discrimination.
Disability Rights Washington and many other individuals and organizations across Washington and the country think it is wrong to question a lawyer’s “fitness” simply because she or he has a mental health disability. Having the insight to seek treatment when you think you need it should not be punished. Seeking treatment has nothing to do with the ability to be a good lawyer.
Disability Rights Washington worked with the Washington State Bar Association (WSBA) to remove bar exam application questions that discriminated against applicants with mental health disabilities.
Summary of work:
On May 21, 2014, Disability Rights Washington released a video that questions bar discrimination. The video, “Questions of Discrimination” criticizes the WSBA exam questions that single out applicants with mental health disabilities and ask for treatment records. In the preamble to these questions, the WSBA said they will not refuse to give a person a license to be a lawyer just because they were diagnosed or treated for a mental health disability. WSBA also said that they won’t seek information about “situational” counseling.
However, it is confusing to compare this preamble with the questions themselves or how WSBA defined “fitness”. By asking questions about treatment or diagnosis, WSBA suggested that simply having a mental health disability is reason to question a person’s character and fitness to be a good lawyer. Many people with and without mental health disabilities think this is discriminatory.
On July 15, 2014, Washington State’s law schools joined 89 signatories and asked the WSBA to change its application, on behalf of applicants with mental health disabilities. The ACLU wrote its own letter to the WSBA [PDF].
Later that month, WSBA convened a workgroup to begin looking into proposed revisions. After several months of meeting, the group reached consensus. They agreed that WSBA should not be asking questions of applicants who seek treatment. They also agreed that defining an applicant’s character and fitness based on health diagnosis is wrong. Instead, it was agreed that WSBA should consider essential eligibility requirements for all individuals who apply to become attorneys in Washington state. In early January 2015, the workgroup submitted its proposal to WSBA.
On September 9, 2014, Attorney General Bob Ferguson sent a letter to the WSBA [PDF] encouraging the elimination of any requirements that may directly or indirectly discriminate against qualified individuals due to a physical or mental disability.
In January 2015, the WSBA Board of Governors met to consider the workgroup proposal and reviewed public materials. On pages 79-84 of the public materials, a memo summarizes the workgroup’s efforts. On page 112, is the proposed language regarding essential eligibility requirements in Admission to Practice Rule 20(e). Finally, on page 138, the bar application revises question 24 to focus on essential eligibility requirements and the deletion of question 25.
In January 2016, the Washington State Supreme Court sought public comment to the suggested amendments that removed questions about mental health treatment from the bar exam and instead focus on essential eligibility requirements. In March 2016, Disability Rights Washington’s Rooted in Rights released another video on the issue with national and state disability advocates discussing the impact these questions have on applicants and diversity in the legal profession.
In April 2016, Disability Rights Washington submitted a letter [PDF] urging the Washington State Supreme Court to adopt the proposal removing these questions from the bar application process. The letter was signed by Dean Clark of Seattle University School of Law, Dean Korn of Gonzaga University School of Law, fifteen firms or organizations, twenty-seven WSBA members, and forty-seven individual advocates. The American Bar Association (ABA) submitted a letter [PDF] signed by ABA President Paulette Brown to the Washington State Supreme Court. The letter expressed ABA’s support for the WSBA’s suggested amendements to eliminate questions related to mental health history from Washington’s character and fitness review of bar applicants.
On June 10, 2016, The Washington State Supreme Court adopted the Character & Fitness amendments to Admission to Practice Rules 20-25.6 that Disability Rights Washington proposed. The amendments became effective September 1, 2016. That means the Winter 2017 bar exam applicants were the first in Washington state who no longer had to affirmatively answer questions about whether they had sought treatment and therefore are fit to practice law.
ABA Journal: ABA backs proposal to eliminate questions about mental health history for Washington bar applicants
The Inlander: Legal Questions under So Long, Spokane
Professional Licensing Report: Challenging states’ use of “Questions of Discrimination”
Suffering in Silence: The Tension Between Self-Disclosure and A Law School’s Obligation to Report, Conference Panel on Assisting Law Students with Disabilities in the 21st Century, 18 American University Journal of Gender, Social Policy & the Law 121 (2009)
Jennifer McPherson Hughes, Suffering in Silence: Questions Regarding an Applicant’s Mental Health on Bar Applications and Their Effect on Law Students Needing Treatment, Journal on Legal Professions, Vol. 28, page 187 (2003-2004)
Theresa Esquerra, Mental Illness Disclosure Requirements on State Bar Moral Character and Fitness Applications: A Qualitative Study (2009) (supported by the 2009 Scattergood Emerging Scholars Fellowship, Active Minds
Department of Justice Letters regarding this practice in other states
Admission to Practice Rules 22 and 24.2
Dave Nee Foundation