Bar Exams, Health / Wellness

When Bar Examiners Become Mental Health Experts

Nationwide change is needed in several areas including (but not limited to) how bar application mental health/addiction questions are asked.

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The most stressful question during law school that a student in addiction recovery or who has sought treatment for other mental health issues may not be about the rule against perpetuities on that property exam. It may be the addiction/mental health question on the application that must be filled out to sit for the bar exam.

The question that may be phrased in a way requiring an applicant to disclose mental health issue(s) that may only be known to the applicant and his/her therapist or other treatment provider. A question which, if answered in the positive, can have substantial ramifications on when and if the applicant will be allowed to sit for the bar exam or obtain a license if the exam has already been taken and passed. I had to answer those questions while dealing with mental health issues.

Around 1985, as a student at Pitt Law, I filled out my bar application in preparation to sit for the Pennsylvania bar exam. While I don’t remember how the question was phrased, the likelihood is high back then that questions about mental health were asked in a way that would require me to disclose treatment regardless of what real-world bearing the answers had on my ability to practice law. Ironically, I would have been one of the applicants the examiners would want to flag.

At the time I filled out the application, I was an alcoholic. I was clinically depressed. I was bulimic. I mentioned none of these. I was not being dishonest. I had no idea I was an alcoholic. I did not know what depression or bulimia were. I had not sought treatment for any of them as relatively few people did at that time.

When I applied to sit for the Texas bar exam in 1987, my defaulted student loan (I corrected that) was an issue, but not the still-untreated eating disorder, depression, or alcoholism. I had also added addiction to cocaine to my “résumé.” To the best I can determine, here is how the question was 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 that I had any problems. In my mind, I was not abusing alcohol or cocaine. I had never sought treatment, so there was nothing to disclose. From a strictly sitting for the bar exam standpoint, ignorance was both bliss and beneficial to me. I failed regardless. Cocaine and Jack Daniels were not great study aids.

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While I don’t believe in revisionist recovery, the argument could certainly be made that if I had answered in the affirmative as to my mental health issues, getting me into some sort of practice and delaying my sitting for the exam could have changed my recovery path for the better in the long term.
While my own lack of self-awareness and treatment (which would have been good thing for me back then) spared me the bar examiner scrutiny, others have been put through the grinder of being flagged and required to jump through mental health hoops to prove they are worthy of sitting for the exam or getting their license to practice if they have already passed.

Atticus Finch (not his real name) is one such example. Atticus is a licensed attorney in 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 disclosed 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.

Upon passing the bar on his first attempt, Atticus was eager to get admitted and wanted to be as honest as possible in submitting his character and fitness application. He says:

I disclosed everything I ever did wrong, including a 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 filed. 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.

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Upon providing them with all the requested records, Atticus was invited in 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 then recommended that Atticus meet with the Character and Fitness psychiatrist for a mental evaluation to see if he was “prepared to practice.” He says:

Despite the fact that 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.

Additionally, it was mandated that Atticus have weekly therapy appointments for six months with a private therapist that he had to pay for himself. His therapist would report to the bar counselor with monthly progress reports and with a follow-up evaluation at the end of the period. Atticus jumped through those hoops and was finally recommended to the committee to be admitted to the bar, a year and a half after passing on his first attempt. He was finally licensed two years after taking 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 individual who interviewed Atticus at the character fitness committee said his application reflected someone who was not equipped to practice. Atticus says:

I’ve never been convicted of a crime. I never had an alcohol or drug problem. During law school and after, never drank or drink more than two nights a week, and not to the point of getting drunk. It appears my sin was one of complete honesty.

While Atticus got to sit for the bar exam before being flagged for his honesty, some don’t even make it that far. Their ability to sit is significantly delayed. Nationwide change is needed in several areas including (but not limited to) how bar application mental health/addiction questions are asked, how the process works once an applicant is flagged, and how law schools guide students through this process. Some change is occurring. We need to go further.

I reached out to Leah Rosa, a licensed professional counselor and the former clinical director of the Louisiana Judges and Lawyers Assistance Program (JLAP) for her perspective and suggestions. 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 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.

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