THE PROBLEM Diagnosis vs. Behavior

Mental Illness and the Practice of Law Michael J. Herkov, Ph. D Mental Illness and the Practice of Law Michael J. Herkov, Ph.D. March 2013 [W]hen an applicant [for bar admission] has an active mental health diagnosis or a history of mental disorder, it is imperative that the professional reviewing the file determine if and how the disorder could disrupt the individual’s ability to practice law and whether a mental health evaluation or conditional recommendation is warranted.

Letter to the Editor June 2013 From lawyers with mental health conditions, mental health experts, and disability civil rights practitioners What is most disconcerting [about Herkov’s article] is the singling out and use of mental disability as a screening device to separate who warrants further investigation as to fitness to practice law and who does not.

Herkov The emergence of mental illness in early adulthood is important for boards of bar examiners evaluating the character and fitness of bar applicants, most of whom fall into the age demographic where symptoms of mental illness may first emerge.

Herkov “The presence of a mental disorder in the applicant’s record always raises concerns regarding the need for further assessment.” “In deciding [from a review of the record] whether an applicant requires further mental health assessment, the board should consider when the diagnosis was made and the applicant’s subsequent level of function.”

Herkov Steps for the Bar Application Review Process Engage the Services of a Mental Health Expert Evaluate the History of Psychiatric Diagnosis Address Any Current Psychiatric Diagnosis

Response to Herkov Dr. Herkov implicitly creates a rebuttable presumption that mental illness may equal an incapacity to practice law unless and until “proven” otherwise. These are the very prejudices and stereotypes that the ADA prohibits and is designed to eliminate.

Response to Herkov In Dr. Herkov’s “model” for boards of bar examiners, the focus is misplaced on the applicant’s status as a person with a mental disability, rather than on his or her behaviors/conduct and capabilities to meet the essential eligibility requirements for the practice of law.

ADA 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.

Definition 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.”

Regulations for Title II, 28 C.F.R. §35.130(b)(6), state: “[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.”

Response to Herkov [W]e contend that the bar’s goal of protecting the public against unfit practitioners and preserving the integrity of the profession is best served by targeting questions to a person’s behaviors and conduct, not their psychiatric history or labels.

The approach Dr. Herkov suggests is both legally and ethically problematic in its disregard of the ADA and of the well-established fact that a mental health condition or history of treatment does not in itself preclude one from a successful, productive, responsible life as an attorney.

Response to Herkov However, no evidence indicates that mental health providers or bar examiners can predict inappropriate behavior on the basis of a person’s mental health history. What the evidence does show is that past behavior and not a mental health condition is the most reliable predictor of future behavior.

Suggested approach As gatekeepers to the legal profession, the inquiries of boards of bar examiners concerning prospective and currently practicing lawyers’ character and fitness should comply with the ADA’s mandate that persons with disabilities, including mental disabilities, be assessed as to their abilities, not disabilities.