The Mental Health Question: Focus Shifts to Conduct on Character and Fitness Review
7.8.2026
This past April, the National Conference of Bar Examiners announced that it was changing its guidance on what has become a controversial question on state bar applications. The change, as shown in the organization’s new sample application, eliminates the requirement of mental health disclosure. The sample application the bar examiners provide is used by many states, so this is a significant change, albeit one that reflects a growing trend across the country.[1]
The movement to change or withdraw the mental health question began in 2011, when the Department of Justice investigated Louisiana’s bar admission policies after a complaint was made by the Bazelon Center for Mental Health Law. The complaint argued discrimination against an applicant to the bar because of a mental health diagnosis. In 2014, the DOJ concluded that questions about mental health on the exam, in addition to other bar admissions practices, was a violation of Title II of the American with Disabilities Act.[2]
The issue was gaining attention in other states and on a national level, too. A survey on law student well-being in 2014 showed that the “[p]otential threat to bar admission was the fourth most cited reason for not seeking help” for mental health problems, leading to new attention to and scrutiny of mental health questions as part of the character and fitness portion of state bar exams.[3]
In 2020, New York State became the eleventh state to change its bar application to eliminate the mental health question.[4] This followed a New York State Bar Association working group task force report that recommended doing so.[5] However, after removing the question, the New York Court System reinstated question 34(f), a question about long-term hospitalization.
Historical Role of Mental Health Questions
Character and fitness evaluations have long been a central component of bar admissions. Their purpose is to ensure that applicants possess the integrity, judgment and reliability necessary to practice law and to uphold the administration of justice. Historically, these evaluations extended beyond questions about conduct to include inquiries into an applicant’s personal history, including mental health diagnoses and treatment.
The rationale for such questions was grounded in concerns about impairment. Admissions authorities sought to identify individuals whose condition might affect their ability to meet professional obligations, reflecting a broader regulatory objective of protecting the public from unprofessional behavior. In that context, inquiries about mental health were viewed as one way to assess potential risk to the public and to the integrity of the legal system, alongside financial responsibility, criminal history and academic integrity.
This approach developed during a period in which regulatory bodies often relied on broad indicators of risk rather than narrowly tailored measures of conduct. Mental health disclosure was treated as potentially relevant information, even if the condition was not likely to affect professional performance. As a result, the scope of inquiry frequently extended beyond what is now considered necessary to assess an applicant’s present fitness to practice law.
Over time, particularly throughout the past decade, this approach drew increasing scrutiny, particularly as the legal profession began to more closely examine the relationship between mental health, stigma and professional responsibility. This scrutiny prompted a reevaluation of whether such questions were appropriately tailored to their intended purpose. It also led to broader conversations about how regulatory frameworks should evolve to reflect contemporary understandings of health and professional competence, including a more nuanced appreciation of mental health and its relationship to professional performance.
A National Reassessment
The shift away from mental health disclosure questions is best understood as part of a broader national reassessment of how bar admissions should evaluate character and fitness to practice law. Several factors have contributed to this change, each reinforcing the others. These factors reflect both external legal pressures and internal professional developments.
First, legal considerations have played a central role. The move toward conduct-based inquiries aligns more closely with the principle that licensing decisions should be based on an individual’s ability to perform professional duties. By focusing on behavior rather than diagnosis, admission authorities reduce the risk of overly broad screening, where generic inquiries capture information unrelated to an applicant’s present ability to practice law, and better align their processes with disability law principles. Under the ADA, licensing bodies must ensure that their inquiries are appropriately tailored to assess relevant qualifications without unnecessarily burdening individuals with disabilities.[6] A conduct-based approach, by contrast, focuses on observable behavior and demonstrated capacity, aligning more closely with legal requirements for individualized assessment.
Second, the legal profession has increasingly recognized the importance of attorney well-being. Studies and professional initiatives have detailed the high prevalence of stress, anxiety and depression within the profession. A 2017 ABA task force indicated that approximately 28% of attorneys experience depression and nearly 20% report significant anxiety.[7] Against that backdrop, disclosure requirements that might discourage individuals from seeking treatment have come under scrutiny. The profession has begun to consider how its own regulatory structures may be reinforcing any messages that attorneys should not seek help for fear of losing work.
Third, there is a growing understanding that past treatment is not a reliable proxy for present impairment. Many individuals who have sought mental health care do so responsibly and effectively, with no impact on their professional performance. In some cases, treatment may reflect sound judgment rather than cause for concern. This recognition has contributed to a more nuanced understanding of what information is relevant to assessing fitness.
Together, these factors have contributed to a reframing of the issue: from one centered on disclosure of medical history to one focused on evaluation of professional conduct, which can provide a more accurate reflection of a lawyer’s fitness to practice law. This reframing reflects a more precise and functionally relevant approach while maintaining the core objective of ensuring standards are met.
Turning the Tide
One significant catalyst on the national level was guidance from the American Bar Association, which urged jurisdictions to focus on conduct rather than diagnosis when assessing applicants.[8] In addition to pointing out the problem of assessing character and fitness based on a diagnosis, the ABA argued that questions about mental health history could discourage law students and applicants from seeking treatment, thereby undermining both individual well-being and the profession’s broader interest in competent practice. This guidance helped reframe the issue from one of information gathering to one of how bar admission processes are structured to evaluate an applicant’s fitness to practice law.
Across jurisdictions, responses to these concerns have varied in form but not in direction. Some states have eliminated mental-health questions entirely, while others have narrowed them to focus on conduct directly relevant to professional responsibilities. For example, jurisdictions such as New York and Virginia have eliminated broad mental health disclosure questions, while others, including California and Illinois, have revised their character and fitness inquiries to focus more narrowly on behavior indicative of current impairment or inability to meet professional obligations.
While the pace of reform has not been uniform, and some jurisdictions have retained broader inquiries about mental health diagnoses, the overall trend is toward greater specificity and relevance to the standards of professional behavior.
The result has been a gradual but meaningful shift across the United States in the framework used to evaluate applicants. Bar applications are now changing to place greater emphasis on behavior, performance and demonstrated judgment. This evolution continues to influence how jurisdictions approach character and fitness determinations today, shaping both policy design and administrative practice. By using methods that emphasize evaluating candidates for precision, resilience and fairness, this shift ensures that standards are met while also accounting for a new, more evolved understanding of mental health in the 21st century. The shift does not eliminate the obligation to ensure that those admitted to the bar are capable of meeting the demands of legal practice. The question is no longer whether applicants have sought treatment, but whether they have demonstrated the judgment and reliability required to practice law.
The Bar Question and NYSBA
New York’s approach illustrates how reform can occur through a combination of legal analysis, professional leadership and institutional action. It also highlights the importance of collaboration between regulatory bodies and professional organizations in shaping policy that is both effective and responsive.
Through its committees and policy work, NYSBA has contributed to the broader conversation about attorney well-being and the importance of reducing barriers to seeking treatment. Its engagement helps frame the issue not simply as a matter of individual disclosure, but as one of professional responsibility and institutional design. The push to change the question was supported by the New York State chapter of the National Alliance on Mental Illness, the Mental Health Association of New York, the New York City Bar Association, the Women’s Bar Association of the State of New York, the New York Association on Independent Living, the Erie County Bar Association, the Nassau County Bar Association and Capital District Lawyers Helping Lawyers.
NYSBA’s involvement reflects the broader role that bar associations can play in shaping regulatory reform. By convening stakeholders, advancing policy discussions and providing institutional leadership, organizations like NYSBA can influence how complex issues are understood and addressed.
Charles A. Montorio-Archer is an assistant district attorney, small claims court arbitrator, and senior executive with extensive experience in governance, compliance and fiduciary oversight across public, nonprofit and educational institutions. His legal and executive background spans child welfare, education, housing, and public service systems, with a focus on process integrity, oversight, and decision-making under legal scrutiny. He holds a Ph.D. in public policy and has published on governance, leadership, and institutional performance.
Endnotes:
[1] Karen Sloan, U.S. Bar Group Scraps Questions on Mental Health from Lawyer Fitness Review, Reuters (April 23, 2026), https://www.reuters.com/legal/litigation/us-bar-group-scraps-questions-mental-health-lawyer-fitness-review-2026-04-23.
[2] Graham Ambrose, Brianne Holland-Sterger and Nora Freeman Engstrom, Mental Health Screening in Lawyer Licensing, Stanford Law School Deborah L. Rhode Center on the Legal Professions (September 2024), https://law.stanford.edu/wp-content/uploads/2024/12/Mental-Health-Screening-in-Lawyer-Licensing-Final.pdf.
[3] Marilyn Cavicchia, A New Look at Character and Fitness: Bar Leaders, Lawyers, Others Urge Elimination of Mental Health Questions, Bar Leader Magazine, v. 44, no 3, (Jan-Feb 2020), https://www.americanbar.org/groups/bar-leadership/resources/bar-leader-magazine/2019-2020/january-february/a-new-look-at-character-and-fitness-bar-leaders-lawyers-others-urge-elimination-of-mental-health-questions.
[4] Press Release: New York State Bar Association Succeeds in Getting Mental Health Question Removed from NY Bar Application, NYSBA (Feb. 26, 2020), https://nysba.org/february-26-2020-new-york-state-bar-association-succeeds-in-getting-mental-health-question-removed-from-ny-bar-application/
[5] Working Group on Attorney Mental Health, The Impact, Legality, Use and Utility of Mental Disability Questions on the New York State Bar Application, NYSBA (2019), nysba.org/wp-content/uploads/2020/02/Working-Group-Report-FINAL-11.04.19-Following-adoption-by-HOD.pdf.
[6] U.S. Department of Justice, Civil Rights Division, guidance on licensing and disability-related inquiries.
[7] ABA National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being (2017).
[8] ABA, Resolution 102 (2015), available at https://americanbar.org/content/dam/aba/directories/policy/annual-2015/2015-annual-102.pdf.
