Law school graduates not only have to pass the bar in order to practice. They also have to pass a “moral character” inquiry – and, as part of that inquiry, many have to disclose sensitive information about their mental health. Bar examiners have long insisted that the disclosure of this information is necessary to ensure that would-be attorneys can practice competently and ethically. Yet critics have long countered that this inquiry is not only ineffective, it’s actively harmful, in that it deters law students from getting the help they need, perpetuates stigma, and potentially even violates federal law.
In a new report, “Mental Health Screening in Lawyer Licensing,” Stanford Law School’s Graham Ambrose, JD ’24, Rhode Center Fellow Brianne Holland-Stergar, and Professor Nora Freeman Engstrom investigate how states screen bar applicants for mental health conditions. They find a profession in transition: While most states have stopped asking the terribly intrusive questions of yesteryear, the vast majority continue to ask about an applicant’s mental health challenges through more targeted inquiries.
Here, Freeman Engstrom and Holland-Stergar discuss their key findings and how those findings implicate longstanding debates.
What does mental health have to do with the process of becoming a licensed attorney?
Brianne: The mental health crisis affecting American society hasn’t spared professionals. In the legal world, mental health problems affect every stage of the pipeline – from college students cramming for the LSAT, to experienced practitioners. Law student mental health raises special concern. Students self-report alarmingly high levels of anxiety, depression, and substance abuse.
Nora: An important caveat is that many believe that lawyers are experiencing a “mental health crisis” or that lawyers are “uniquely unhappy.” There are even some studies that support that idea. But those studies tend to rely on self-reported survey data, which is notoriously unreliable. A robust, peer reviewed study, by contrast, found that attorneys suffer mental health issues at rates comparable to other highly educated professionals – and that lawyers suffer rates of mental illness much lower than the general population. This study, to my mind, puts to rest the idea that there’s something wrong with lawyers in particular. That said, millions of Americans suffer from depression, anxiety, substance use disorders, and other mental health challenges, and lawyers and law students are not immune from these broader trends.
Brianne: Exactly. And, critically, a significant portion of law school students report a reluctance to seek help. There are numerous reasons for this reluctance, but one, we feel, deserves special attention: Law students fear that getting help might delay or imperil their law license. State bar examiners have historically required applicants to disclose diagnosis of, or treatment for, mental illnesses, broadly defined. These questions are typically part of the “moral character” or “character and fitness” inquiry which purports to assess whether an applicant is capable of performing the duties of a lawyer. States have explained that these questions exist to weed out applicants who are incapable of ethically and competently practicing law. The thinking goes that mentally unwell applicants might drop the ball and hurt a client.
But whatever the intent, the evidence is weak that these screenings protect the public. In fact, the evidence suggests the opposite: Screening might imperil the public because mental health inquiries might discourage prospective lawyers from getting the help they need.
Rhode Center Fellow Brianne Holland-Stergar | Courtesy Stanford Law School
Have there been reform efforts? How have they fared?
Nora: Definitely. In the early 1990s, about three-quarters of states asked applicants whether they had sought mental health treatment. But in 1994, spurred by disability rights advocates, the ABA recommended that these inquiries be pared back, and the influential National Conference of Bar Examiners (NCBE) concurred.
Brianne: Additional reforms followed. The ABA passed additional resolutions in 2015 and 2018 urging states to rein in their inquiries. In 2019, the Conference of Chief Justices called for dropping questions about mental health history and diagnoses. The Department of Justice also took action, contending that states’ free-wheeling inquiries violated the ADA.
As a result of these official actions – combined with grassroots advocacy by disability advocates, law students, and law schools – many states modified their mental health screening questions.
How exactly have states modified their mental health questions?
Brianne: That’s the question we sought to answer. Prior to the publication of this White Paper, we did not have a comprehensive picture of whether – or how – states had responded to the push we just described. While a few organizations and scholars had conducted previous surveys, those surveys were outdated and, in some cases, incomplete. So, we dove in, creating a comprehensive repository of mental health screening questions.
Nora: We found that, today, only six states continue to ask applicants about specific mental health diagnoses or substance abuse issues – a dramatic decrease from the mid-1990s. Then, at the other end of the spectrum, seven states have scrapped mental health screening entirely.
The vast majority of jurisdictions take a middle path. Thirty-four states no longer pose free-wheeling questions about mental health diagnoses or treatment and instead ask questions that indirectly inquire into an applicant’s mental health, including whether applicants have asserted mental health difficulties as a defense in prior proceedings, or whether they have any condition that might affect their ability to practice law.
What has the response been to this switch?
Brianne: Curiously, many advocates, including the American Psychiatric Association, continue to focus on – and criticize – overtly intrusive questions, although, in most states, that battle has been fought and won. Far less attention has been paid to the indirect screening methods that are now far more common.
Nora: That isn’t to say that the shift has totally escaped attention. Professors David Jaffe and Janet Stearns, for instance, argue that even these more targeted questions continue to deter students from seeking necessary treatment. And Professor Frederick Vars contends that some of the more targeted mental health questions are “no improvement over previous iterations.” Some critics also point out that there’s simply no reliable empirical evidence linking any form of mental health screening to attorney quality or susceptibility to discipline. That strikes me as important. If there’s no evidence that the inquiry protects the public – and there’s sometentativeevidence that the inquiry hurts prospective lawyers because it deters them from seeking the counseling or therapy they need – that seems to suggest that the states that have entirely jettisoned this line of questioning have the right idea.
What impact do you hope “Mental Health Screening in Lawyer Licensing” has on bar screening practices, and the legal profession more generally?
Nora: We have a few hopes for the paper’s impact. First, we hope that it will encourage the half-dozen states that continue to ask free-wheeling questions to reconsider those questions’ utility, given the clear trend toward narrowing. Second, we hope the paper will encourage more critical thought regarding continued mental health screening, even in its current guise. As noted above, currently, there’s no evidence (none!) that shows that, by asking these questions, bar examiners meaningfully protect the public. That gives us pause.
Brianne: Third, we hope that the paper will motivate state bars to share more data on how they use mental health screening in their admissions decisions. Bar admissions suffer from a black box problem. Bar examiners don’t explain why this or that applicant was denied admission, so we don’t know how many individuals do not become lawyers because of past mental health challenges. But admission denials are only part of the picture. We need a clearer picture of the decision-making process to better evaluate the necessity of mental health screening.
Nora: Finally, we hope that the paper will encourage more inquiry into the deterrent impact of mental health screening questions. While, as we noted, there are hints that law students don’t get the help they need because they worry about disclosure – and there are also hints that the specter of disclosure might deter some individuals from trying to become lawyers in the first place – we have few hard facts. More research is needed.
Why did you choose to focus on this issue?
Nora: The Rhode Center believes in protecting the profession and the public. Mental health problems have long been ignored by legal professionals, including law schools. But there’s a notable exception: Deborah Rhode. A prolific and visionary scholar, Professor Rhode wrote about mental health among lawyers decades before the topic became mainstream. This topic was long important to her, and in deciding to train our attention on it, we remember and honor her pioneering career.
Nora Freeman Engstrom, Professor of Law and Deane F. Johnson Faculty Scholar, is a nationally recognized expert in both tort law and legal ethics. Her work explores the day-to-day operation of the tort system, particularly its interaction with alternative compensation mechanisms.
For more information
This story was originally published by Stanford Law School.