Momentum Builds for Allowing NY Bar Applicants to Keep Mental Health History Secret

Henry M. Greenberg, president of the New York State Bar Association

Henry M. Greenberg, president of the New York State Bar Association. Photo: David Handschuh/NYLJ

The new president of the New York State Bar Association is announcing today that he’s launching a blue-ribbon committee to determine if the state should remove questions about mental health disorders from applications for the bar.

The move mirrors efforts underway nationwide. In February, the Conference of Chief Justices urged all states to remove mental health inquiries from its applications. Several states, including Connecticut, have already done so. Other states are studying the issue; a moral character working group convened by California’s bar association held its first meeting Friday in San Francisco.

“In view of this clear and unequivocal stand, the New York State Bar Association should promptly review questions on the New York bar application’s character and fitness questionnaire that address an applicant’s mental health issues, to determine if they comport with the nationally endorsed recommendations found in the Conference of Chief Justices’ resolution,”  New York State Bar Association President Henry Greenberg said in a call to action he’s issuing today.

In a 2014 survey of law student well-being sponsored by the American Bar Association, 42% of respondents reported they needed help for an emotional or mental health issue in the past year but only half sought assistance. Forty-five percent feared that seeking treatment could pose a threat to bar admission.

“Time in law school is marked by extreme stress, anxiety, overwhelming expectations and financial uncertainty,” Greenberg said in his call to action. “Many students admit they are not seeking help because they are concerned that doing so will negatively impact their bar admission.”

Lucian Chalfen, director of public information for the New York Unified Court System, said that officials will be reviewing the mental health question that is part of the character and fitness review done by the four appellate departments.

“We are aware that some concerns have arisen regarding the wording of the question addressing mental health and substance abuse on the application for admission to practice as an attorney in the state of New York,” he said. “The application is continually updated and revised, thus we anticipate that we will be reviewing this issue in the coming months.”

New York State’s regulations stress that an applicant bears the burden of proving that they are fit to practice law. It asks: “Do you currently have any condition or impairment including, but not limited to a mental, emotional, psychiatric, nervous or behavioral disorder or condition, or an alcohol, drug or other substance abuse condition or impairment or gambling addiction, which in any way impairs or limits your ability to practice law?”

Applicants are not asked to disclose a physical illness.

“It doesn’t say ‘do you have type 1 diabetes or do you have a chronic medical condition where you’re constantly taking care of yourself,’” said Eileen Travis, director of the Lawyer Assistance Program for the New York City Bar Association.

Travis, who visits New York law schools frequently to urge students to seek treatment for emotional problems, said she hopes the question is removed. “It has this extremely intrusive quality to it,” she said.

In August 2017, the National Task Force on Lawyer Well-Being recommended that bar examiners focus on conduct and behavior rather than diagnosis or treatment history, The report referenced American Bar Association Resolution 102, which called on authorities to concentrate on behavior that impairs an attorney’s ability to practice in a competent, professional and ethical way.

Greenberg asked the bar association’s young lawyers section, committee on disability rights, committee on legal education and admission to the bar, the law practice management’s attorney wellness subcommittee and the lawyer assistance committee to appoint members to the blue-ribbon committee. He instructed the committee to come up with recommendations in advance of the November House of Delegates meeting.

The dean of students of Cornell Law School, Markeisha Miner, said it would alleviate stress and improve student well-being if the state does take action.

“If the state bars provided more clarity on this important topic, like the National Conference of Chief Justices recently did, it would go a long way toward assuaging students’ concerns,” she said. “Hopefully, such a positive step by the bar would encourage law students to get the help they need with assurance from the ultimate authorities on the matter that they will not be punished for doing so.”

Read More:

Long Overdue Step Taken to Remove Mental Health Stigma in Law

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