Advocacy for lawyers with mental health conditions Who is worthy? Advocacy for lawyers with mental health conditions

What does it mean to be “fit” or of “good moral character”? Groups of people who have been deemed to not possess the moral character and fitness to practice law: Immigrants Jews African-Americans Women Communists Unmarried Cohabitators LGBT Individuals Individuals with Psychiatric Disabilities

The Americans with Disabilities Act of 1990

LITIGATING THE Mental health inquiries Broad question: “Have you ever received a diagnosis of an emotional, nervous or mental disorder?” Narrower question: “In the last 10 years have you been diagnosed with or treated for bipolar disorder, schizophrenia, paranoia, or other psychotic disorder?” Neither question will reveal whether someone has a “moral character” or is “fit” to practice law.

DOJ letter to louisiana Emphasis on conduct versus status Psychiatrist found no obstacle to practice  conditional admission BUT substantial misconduct / felony convictions  unconditional admission Things that make you go HMMMMMMMMM….

DOJ LETTER (Cont.) The questions and conditional admissions processes violate the ADA because they: Screen out individuals with disabilities and impose additional burdens on them Are not necessary for identifying unfit candidates Are not individually tailored to actual risks

NCBE Conduct Questions Complaints Academic Suspension or Expulsion Unemployment Sanctions Bankruptcy Arrests Moving Traffic Violations Disbarments Convictions Warnings Forced Resignation Advised to Discontinue Studies Civil Defendant Denial/Revocation of Professional License Grievances Charge-Off Accounts Reprimands Loan Defaults

Ncbe mental health inquiries: BEFORE & AFTER Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? AFTER: 25. Within the past five years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?

Ncbe mental health inquiries: BEFORE & AFTER BEFORE: 26.A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated, could affect, your ability to practice law in a competent and professional manner? AFTER: 26.A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way currently affects your ability to practice law in a competent, ethical, and professional manner? I work hard to overcome my disability. Maybe I’m supposed to answer yes? Good news!

Ncbe mental health inquiries: BEFORE & AFTER BEFORE: 26B. If your answer to Question 26A is yes, are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program? AFTER 26B. SAME. It’s none of your business.

Ncbe mental health inquiries: BEFORE & AFTER 27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization, or licensing authority? AFTER: Within the past five years, have you asserted any condition or impairment as a defense, in mitigation, or as an explanation for your conduct in the course of any inquiry, any investigation, or any administrative or judicial proceeding by an educational institution, government agency, professional organization, or licensing authority, or in connection with an employment disciplinary or termination procedure? If the underlying conduct didn’t bother you, then who cares?