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?
Via Wally Olson at Overlawyered, the Department of Justice is investigating the Florida Supreme Court for evaluating candidates for admission for mental health issues.
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.
The longer I live, the more I feel sure that the proportion of the population suffering from undiagnosed mental illness is 1-n, where n is the proportion of the population suffering from diagnosed mental illness.
Nothing has made that more apparent than the advent of the internet.
It’s sad because it’s so true. SHG is right too – the internet puts it right out in front of everyone to see. Before the internet, we weren’t bombarded with a constant stream of other peoples’ neuroticism and psychopathy… but now? Damn.
Would it therefore be appropriate for the Bar examiners to ask questions about physical health, such as having degenerative conditions or having recently been treated for cancer or cardiac issues?
If something bears upon fitness to practice, it should be asked. What to do about it is another question. But then, you also need to ask whether these really bear upon fitness or are analogous to, say, bipolar disorder. Be wary of facile comparisons.
How do you even begin to formulate a bright line test about relevance? And once you have one, what does it encompass? “You have a gene that indicates a propensity to gamble. Obviously, you cannot be trusted with client funds, and don’t even get us started about the plea bargain rejections.”
And yet, if you’re the client who learns that his damages to pay for his treatment for quadriplegia for the rest of his life were lost at the craps table at Caesar’s, along with the malpractice premium?
So would it be appropriate for the state bar examiners to ask, “Do you suffer from any severe stress right – like a nasty divorce or a kid who just came out – that could impair your ability to focus on your cases or represent your clients diligently?
Would it? Seems that those examples aren’t good analogies either, as they’re discrete events that come and go, and not at all like being bipolar. But also ask the question, just because we can’t prevent all unfocused lawyers all the time, does it mean we do nothing about problems at all?
If it is about fitness to practice, which is obviously relevant, then the question needs to be more narrowly tailored. If your mental illness is controlled by meds and you always take your meds and have never had any problems with representation that is far different from someone with a history of going off the meds or actually screwing up representation because of the illness. Exactly how to tailor the question to differentiate one from the other is the question. Perhaps it is as simple as asking if your pracitice has ever been impaired by any mental or physical ailment.
Right now it seems to be too wide a net. Like asking if you ever drink as a way to screen out drunk drivers on a job application for a driver.
But yer honor, I never stopped taking my meds before…
It’s a good point. I dunno the answer. But if you can’t cast any net, then it really doesn’t matter.
They can cast some sort of net. They are allowed to ask other questions. Could perhaps generalize it to a question about any difficulties you have had with representing clients as effectively as you should. Then mental illness isnt the focus anymore, fitness to represent clients is.
As this is for admission to the bar, chances are really bad that they’re going to get much when asking about problem “representing clients as effectively as they should.” But even if that wasn’t the case, how many total screw ups would you expect to respond, “well, yeah, I’m a total screw up who destroys clients all the time. Problem?”
Are you seeing any issues with your idea yet?
Ok. I see your point. And so, I see one or two problems… (One or two dozen?) Trying to determine fitness to serve with self-reported criteria in check boxes is perhaps not the greatest method to begin with.
If it helps, I see problems at every turn, which is why this is fascinating. But ultimately, the solution has to first serve the client rather than the lawyer.
How about doing like other countries do and before admitting you to the bar, have you apprentice under a highly qualified lawyer for a year so they can evaluate you? If you have any impediment to effectively representing clients – whether it is because you have a serious mental illness, are unable to cope with stress, or just inept and can’t properly organize and run a case, then you aren’t admitted. Better luck next year…
Having a major psychological disorder automatically disqualify you without knowing how severe it is, how well you control it, and the quality of the treatment options just seems so wrong. Plus, by the time you get to the questionnaire, you’ve already spent the last 8 years of your life and maybe close to half a million dollars – if finding out your illness is going to disqualify you, why the hell would you tell the truth or seek treatment? It seems like that policy is just going to cause people to hide their illness instead of being upfront about or not seek any treatment.
Or space aliens!!!
This country has a big problem with clients who are not willing to make reasonable accommodations. All they seem to care about is prevailing in their case, being made whole, and staying out of jail.
Why won’t anyone think of the lawyers?
You seem to be a bit stressed. I have a few thoughts about how to relieve that stress.
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There are certainly mental, physical, and emotional conditions that could compromise a lawyer’s ability to serve a client. But “mental illness” is such a huge category. And it’s a diagnostic category, not a category of professional competency. Even people with the same condition can deliver widely different professional outcomes.
I have conflicting thoughts on this:
If a lawyer can appropriately serve a client, then why does it matter what conditions they have?
If a particular condition involves significant risks that:
* a lawyer could fail to serve a client, or
* a lawyer could fail to self-assess their own competency,
then surely they should adopt another career.
Having spent some time in this arena, I can say that I’ve never had a client denied admission due to a mental illness. Nor have I had a client called in to a hearing solely to discuss their mental illness, unless that mental illness found itself as the cause of other conduct (an arrest).
I understand that’s not the issue here, the issue is whether the Bar should be able to know, period. Well, I’d like to know if the waiter serving me dinner is mentally ill. I mean I may ask them for another knife. I’d also like to know if the guy washing my car is mentally ill as he may suffer an episode, get in my car, and run me over.
And I know, lawyers have special licenses, skills, powers, etc…, but isn’t the issue whether someone has previously had an issue that was caused by their mental illness? If a candidate for admission suffers from a mental illness and in the past few years did something that speaks to their fitness to practice, then that should be fair game.
But merely suffering from a mental illness where there is no evidence of any conduct that affects fitness to practice? Shit, I’m diabetic and low sugar causes me to be a total asshole (total). Blows the whole requirement of civility.
Yeah, the Florida bar has asked me to have a chat with you about that “total asshole” thing.
But then, I want to know what compels you to type your name in all caps?
Was it what’s her name? I always ask her for Skittles, but no.
You guessed it. She likes you, but Skittles scare her.
Licensing has a strong rationale for physicians and airline pilots. There was a time when we allowed the free market to deal with incompetent barbers and manicurists.
The practice of law falls closer to physicians, as an incompetent hurts one or a few people at a time, rather than scores of airplane passengers who have very limited ability to choose another practitioner.
Mental illness is disqualifying for a pilot license, which creates perverse incentives not to seek treatment, or to conceal it, as we saw recently. Despite these problems, the system as a whole works tolerably well.
It is hard to imagine the public accepting a ruling that pilots could no longer be evaluated for mental health issues. For lawyers, perhaps they will. Some clients will be harmed, and some good lawyers will get to practice who would otherwise have been excluded.
So what do you say to the deft who got burned? “Hey, sorry pal, but if it makes you feel better, some other guy got a good lawyer out of the deal. Oh, and see ya in 113 years.” Most people aren’t willing to take one for the team, especially when the team is made up of lawyers.
I don’t have any words beyond condolences for clients burned by an impaired lawyer, just as I have little to offer the 150 victims of the last airline pilot mass murder/suicide and their families. No system made by man is going to be perfect. The debate should consider how to strike an appropriate balance, and how to evaluate that balance going forward.
Pilot licensing works fairly well, although this is not the only case of deliberate misbehavior. A lesson for the law license debate is that opening private details to scrutiny by bars or other authorities will certainly cause some who would benefit from treatment not to seek it, and those who seek treatment will be motivated to conceal it.
It is at least possible, even if practically quite difficult, for a defendant to seek competent counsel, and to switch if they don’t like their first choice. No such choice for airline passengers; they have no way to tell who will sit up front, and have to trust the airline and the regulatory process. That difference suggests the balance for this case might tip a little more towards the interests of lawyers with mental illness who want to practice as compared to pilots with similar conditions.
I generally agree with both Greenfield and Tannebaum here. The duty to the client is the most important issue to consider, and if a person is unable to provide adequate representation then they should not be a lawyer. There are two points I’d like to add to the conversation:
1) Very often, mental illness *is* a physical ailment. It shouldn’t be separated out – a question about a history of any physical ailment that would impede one’s ability to adequately represent a client is appropriate.
2) People are affected by mental illness to varying degrees and a great majority of those with a mental illness are undiagnosed. So any question specifically about having a mental illness would likely yield honest, yet incorrect, answers.
As the quoted question reflects, it asks whether someone has been “diagnosed or treated,” not whether they are mentally ill. But if you didn’t agree with TANNEBAUM and I, would that mean the client doesn’t matter?
Ah! I see in my haste caused by my excitement at not 100% disagreeing with you, I failed to read the quotation correctly. Apologies.
In all matters of lawyering and the delivery of legal services, I always put the duty to the client first.
Apology accepted.
I think you’re supposed to be honored that she agrees with you, you unappreciative bastard
I am, but I don’t want her to get a swelled head about it.
1) A lawyer who can’t get the job done because X, or who can get the job done despite X, rises or falls based on their reputation and past performance. X is anything at all: physical frailty, mental disability, problems at home, laziness, unfortunate fashion sense. A bad lawyer is a bad lawyer, who cares why?
2) A lawyer who seeks treatment is penalized under this scheme, while a lawyer who allows her mental illness to go unchecked is not. How does that benefit anyone? It’s like concluding someone is dirty because they take baths.
Not all murderers are deterred because it’s a crime. Therefore, we shouldn’t criminalize murder.
It’s the general problem of licensure. Pick the task for which a license is required (e.g., driving, doctoring, lawyering, braiding hair). Now eliminate the tasks for which a license shouldn’t be required (e.g., braiding hair; but golly gee my braids are all screwed up and I’m just barely a survivor and didn’t get a trigger warning in this comment and . . . . Sorry, I got lost there for a minute).
The question isn’t really about what questions to ask. It’s about how to evaluate the answers and what to do with the results. Sure it’s about the clients, but since anyone can screw up (and lots of lawyers with impeccable backgrounds and credentials do, just as usually fine surgeons sometimes leave a dead or further damaged body on the table), and we can’t protect against the lightening strike, there are really only two choices. Either we take a broad brush and say that nobody with X can get licensed or we make case by case determinations. I’d support the latter, which I think puts me in TANNEBAUM’s camp.
And remember e.e.cummings who didn’t believe in uppercase letters at all?
Seriously? You’re in TANNEBAUM’s camp? And you admit it? Ewww.
Makes me edgy, but he does choose a good wine.
(Sorry, but there was no “reply” link under your reply to me, Scott). You wrote:
“Would it? Seems that those examples aren’t good analogies either, as they’re discrete events that come and go, and not at all like being bipolar.
It could be very much like it, depending on the subtype of Bipolar. If a person has periods of normal mood with occasional periods/episodes of “hypomania” or occasionally dips into mild depression, they’re not likely to pose a representation problem, even though they’re “Bipolar” – very much like the individual who’s typically fine but experiences discrete episodes of acute environmental stressors. Indeed, the hypomania can help some Bipolar patients boost their productivity.
So if you wouldn’t ask the candidate going thru a nasty divorce about their “discrete episode,” perhaps the state bar shouldn’t be asking about “Bipolar” or “Depression,” as both have subtypes and a range of symptom severity.
It would make more sense (to me, anyway) to ask, “In the past two years, have you suffered from, or been treated for, mania, severe depression, or any distorted thought processes?”
I think all professional licensing boards have a right to question fitness to practice in their field, and it would make no sense to me to say that mental health is protected under the ADA while alcoholism and addiction aren’t when it comes to fitness questions. But the answers to the questions should be just part of the process, and not a necessary exclusion.
So no one said it was a “necessary exclusion,” and the question quoted in the post was essentially yours, except it was for five years. I’m not seeing your issues here.
As for your analogy between a divorce and a “subtype of Bipolar,” (which I still think is an inapt analogy, but whatever) then you think they ought to be more intrusive and more exclusionary so as to include external factors like divorce as well? I’m surprised that this is what you are suggesting.
Or are you not suggesting it, but didn’t play out your thoughts to what they would actually involved?
I’m saying that I think that certain professions – including yours – have a right to incorporate “fitness” questions, but asking about specific mental health diagnoses is not the way to accomplish the goal of protecting consumers/clients. They’re perpetuating stigma and myths about some of these diagnoses.
From my perspective, they should either refine the diagnoses they’re asking about and include non-mental health diagnoses that have the same impact, or stop asking about diagnoses per se and ask about functional impairment without respect to diagnosis.
Meh. Sorry, but this is just meaningless fuzzy-wuzzies, and you’re totally unpersuasive here, especially your persistence in analogizing psychosis with divorce. It doesn’t become more convincing by repetition.
The bar asks questions to get answers. What they do with those answers is your issue, while the point of the post is whether they should be allowed to ask the questions, per the ADA. You don’t seem to show a firm grasp of the problem at issue, which is why your ideas come off as fuzzy and confused.
And I agree that your attempt to compare divorce to psychosis is just off the wall. You seem to want to do this solely to de-emphasize the significance of mental illness, as in “there are lots of things that could be problems, so why pick on psychosis?’ No one is disagreeing that there are other things that could impair a lawyer’s ability, but that doesn’t make psychosis any better. You aren’t doing your cause much good this way. Your concern for the stigma and myth of mental illness is fine, but it doesn’t trump the concern for the welfare of clients of lawyers with mental illness. Nobody is entitled to be a lawyer, but clients are entitled to competent counsel.
I think that’s the correct guidepost.
Haha, [i]Misericordia[/i] University?
Clearly I am a WordPress master.
Yeah. Some master.
Are you saying I won’t get a trophy?
Don’t you have enough already? How about a nice ice cream cone?
The success of blind lawyers like Richard Bernstein and Matt Murdock (though Murdock’s work is largely extrajudicial) makes trying to predict the future of someone with disabilities a fool’s errand. If you can’t filter on the front end, you filter on the back – would better funding and improving the disciplinary process be a better approach? While it would not catch a lawyer so disabled as to be ineffective before he became a lawyer, it would catch the ones that turn out that way later.
They’re not mutually exclusive, which is why there has always been “filters” on both ends. As for it being a “fool’s errand,” that’s the sort of simplistic idiocy that makes me appreciate you so much.
Brilliant.
I defer to your knowledge of destructive batshit crazy lawyers incapable of controlling themselves, who are capable of passing the bar and obtaining employment and whose insanity is detectable by some undiscovered DoJ ADA compliant mechanism.
The irony is you think that’s snarky, but that’s the sanest thing you’ve said yet.
Monkeys, typewriters and Shakespeare. One day I will understand why saying it is a fool’s errand is idiocy but snarking it approaches sanity.
Maybe, but I wouldn’t hold my breath.
The State Bar asked me whether I’m crazy.
I said “No, but I’m really quite lazy.
I never cite cases.
Instead, in their places,
I cite movies by Martin Scorcese!”
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
I couldn’t help myself. There would be no lawyers if mental issue was a true measure of competency. Mental illness is to subjective to be used as a criteria for just about anything. Lincoln reportedly had two nervous breakdowns. Most of the people I know suffer from some sort of delusional rational. Anyone who disagrees with me is wrong. lol.
A psychiatrist I use as an expert witness once explained to me that we’re all crazy. Some of us just have better coping mechanisms.
I’ve never used a psychiatrist (or psychologist, for that matter) who I didn’t think was crazy. But then, that could reflect more on me than on them.