November 4, 2019: NYSBA Receives Overwhelming Support for Proposal to Eliminate Mental Health Questions from NY’s Bar Application

By Communications Department

NYSBA CALLS FOR STATE CONSTITUTION TO RECOGNIZE MENTAL HEALTH AS A MATTER OF PUBLIC CONCERN

The New York State Bar Association’s (NYSBA) House of Delegates has adopted a report that recommends the elimination of all mental health inquiries from the application for admission to the New York state bar.

The report was prepared by NYSBA’s Working Group on Attorney Mental Health and adopted at the House of Delegates meeting Nov. 2 in Albany. To date, the report’s recommendations have received overwhelming support from the legal community.

“The hard truth is that stigma around mental illness remains a significant barrier to treatment within the legal profession, and society at large,” said NYSBA President Hank Greenberg. “There is compelling evidence that mental health questions on bar applications are ineffective and unnecessary, and several states have already done away with them.

“I am proud to say that NYSBA is fighting to remove the stigma that many New York bar applicants fear could haunt them during their careers, for simply seeking out needed counseling or other assistance,” Greenberg continued.

Call for mental health parity in the State Constitution

On Nov. 1, NYSBA’s Executive Committee also approved a proposal calling for an amendment to the State Constitution to establish mental health as a matter of public concern. The Constitution already recognizes physical health in this way.

“Our society still has so much to learn about mental health issues and how they can impact our daily lives,” Greenberg said. “Establishing in the State Constitution that mental health is a matter of public concern will benefit all New Yorkers by recognizing that it is as important as physical health to our well-being.”

About the Working Group on Mental Health

Greenberg created the blue-ribbon multidisciplinary working group in June after recent studies showed that law school students are experiencing mental health issues at alarming rates and are not seeking the help they need because they are concerned that doing so will negatively impact their bar admission.

In February 2019, the Conference of Chief Justices passed a resolution urging its members and state and territorial bar admission authorities to eliminate from bar admission applications any questions that ask about “mental health history, diagnosis, or treatment” and to instead use questions that only focus on an applicant’s conduct.

NYSBA reviewed questions on the New York bar application’s character and fitness questionnaire that address an applicant’s mental health issues to determine if they comport with the nationally endorsed recommendations found in the Conference of Chief Justices’ resolution. Their report is entitled The Impact, Legality, Use and Utility of Mental Disability Questions on the New York State Bar Application.

The working group concluded that:

  • Law students today experience more stress and mental health issues than ever before due to student debt and an uncertain job market, in addition to the demands of law school.
  • The presence of mental health inquiries on the application may lead to many students failing to seek help for these problems.
  • The Americans with Disabilities Act prohibits the screening of candidates based on mental disability.
  • All questions related to mental disability, including Question 34, the mental health-related question, are unnecessary and should be eliminated from the bar application.

The working group consists of members from NYSBA’s Young Lawyers Section, Committee on Disability Rights, Committee on Legal Education and Admission to the Bar, Law Practice Management’s Attorney Wellness Sub-Committee, and Lawyer Assistance Committee.

Strong Support from Other Organizations

Numerous outside organizations have submitted letters of support for the proposal including the New York state chapter of the National Alliance on Mental Illness, Mental Health Association of New York, New York City Bar Association, Women’s Bar Association of the State of New York (WBASNY), New York Association on Independent Living, Erie County Bar Association, Nassau County Bar Association, and Capital District Lawyers Helping Lawyers.

“We do not see a meaningful distinction between this question and a pre-employment inquiry as to an applicant’s disability, which the Americans with Disabilities Act prohibits,” New York City Bar Association President Roger Juan Maldonado and other leadership wrote in its letter of support. “We believe that the question is anachronistic in that it presumes that a disability, and particularly a mental health condition, is a defect of character rather than a medical condition that does not necessarily impair an individual’s performance of work-related duties.”

“The Working Group’s conclusion and recommendation that ‘mental health inquiries should be eliminated from the application for admission to the bar of New York state’ is fully supported by the Women’s Bar Association,” wrote WBASNY President Deirdre L. Hay. “Attorneys should be evaluated on their competence and conduct, not on their seeking mental health treatment, or any diagnosis or treatment, which the applicant has received.”

“The inclusion of the current question on mental health issues in the bar application is an active impediment to getting help to those who may need it,” wrote David H. Keehn and Professor Joseph M. Connors on behalf of Capital District Lawyers Helping Lawyers. “Its elimination from the application will be a positive step and will help reduce stigma around seeking mental health treatment when needed. Law students, the entire profession and by extension our society will benefit from this change.”

About the New York State Bar Association

The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Christian Nolan

[email protected]

518/487-5536

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