Mental health is one of the last deep, dark holes for disability advocates, as it begins to emerge into the sunlight of recognition that it’s not just the refuge of ax-murdering psychopaths but otherwise ordinary, intelligent, thoughtful people. And yet, does that mean that our societal acceptance of psychological problems as a health issues make it out of bounds as a concern for lawyers?
The investigation was opened last December by the Justice Department’s civil rights division as an alleged violation of the Americans with Disabilities Act. The division wrote Chief Justice Jorge Labarga notifying him of the investigation.
For several years, the Justice Department has discouraged state bar licensing groups and the agencies that oversee them from asking people applying for law licenses about their mental health status.
There is much to commend this concern, if not their methods. Would it be acceptable to challenge a candidate for admission to practice for being blind, or having lost a limb? What about herpes? Why, then, mental health?
Indeed, there have been some bold admissions about lawyers suffering from mental health issues. From the Lawyers with Depression blog (there is actually an award for “best depression blog,” though it must really suck not to win it), to lawprof Brian Clarke’s “coming out” about his situation, to various articles about lawyers committing suicide, mental health has been a big issue within the profession. To add insult to injury, there is even a new cottage industry of mindfulness to suck some of the stress out of lawyering together for a reasonable price.
For most of us, there is enormous concern and sympathy toward the individuals who suffer from mental illness, but then consider this question:
One of the offending questions identified by the Justice Department: “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?”
If you consider the view from the defendant’s chair rather than the lawyer’s, this is some damn scary stuff. Is it wrong for a defendant to expect his lawyer not to lapse into a manic phase in the middle of trial? Is it enough for the stressed out lawyer to munch on the mindfulness twinkie, or should there be oversight to make sure he’s dutifully downing psychotropic medication?
Better yet, lawyering is hard and stressful. Is it wrong to weed out those who may not be capable of handling it, whether because they suffer from mental illness or just can’t deal with the demands of the responsibility?
And if so, is it right to put the client at risk?
Clearly, it doesn’t serve the client’s interest for lawyers who suffer from mental illness to avoid seeking help in order to conceal their condition. There shouldn’t be a disincentive for diagnosis and treatment, which helps neither lawyer nor client. Yet, clients deserve lawyers who are mentally fit to perform their duties, no matter how stressful or how diligent the lawyer is in complying with a treatment regime.
And while society has come a long way in understanding that mental illness isn’t an incurable plague, we’re still taking baby steps in understanding it and accepting it. As noted when Clarke came out:
It makes no more sense to stigmatize someone suffering from bipolar disorder than cancer. It similarly makes no more sense to demand they “tough it out” than it does to demand that a blind person see. It doesn’t happen that way, no matter how ignorant society may be about the nature of the problem.
And yet, being a lawyer is all about the client, not the lawyer.
More to the point, if a lawyer suffers from mental illness, is he capable at all times of recognizing how it might affect his judgment on behalf of a client? And yet, if so, then no defendant in his right mind would want to be advised and represented by a mentally ill lawyer. No matter how sympathetic the client may be, there is no reason why the client should be willing to risk his life because of the lawyer’s “issue.”
Should the DoJ be investigating the choices made by state bars in deciding who, and under what conditions, should be admitted to practice law because the Americans with Disabilities Act fails to distinguish between a lawyer and other jobs where there is no comparable potential for harm?
Not everyone is suited to the practice of law. If they can’t handle the responsibilities without putting the client at risk, then they shouldn’t be able to hang out a shingle. But if this can’t be ascertained because the law deprives state bars of the ability to figure out who is fit to practice, then what about clients?
Update: And what about patients? Via Turley:
[A] nursing student is suing Misericordia University for failing to adequately accommodate her anxiety and depression after failing a required course twice. While her professor Christina Tomkins (right) gave Jennifer Burbella (left) extra time for her final exam and “a distraction-free” environment, his failure to take her calls with questions during the exam was cited as a violation of the federal disability law.
The student failed the required course twice, despite accommodations, because who doesn’t want a nurse that can only work slowly in a distraction-free environment with someone always available to answer her questions?
The case also raises the question of whether some disabilities simply cannot be fully accommodated in preparing students for the real environment of high stress positions. I often say that law school trains students on how to deal and process stress and time pressures. That must be equally or more true for nursing.
Not everybody should be a lawyer. Not everybody should be a nurse. On the other hand, the government has just mandated that every school in the nation have an endowed Harrison Bergeron Professorship of Feelz in order to qualify for federal student loans.