NYSBA Makes Progress in Effort to Remove Mental Health Question From Bar Application

By Brendan Kennedy

Lauren Sharkey

In response to a campaign by the New York State Bar Association to protect the well-being of law school students, a controversial question about mental health treatment on the application for the state bar will hopefully be removed.

The Office of Court Administration has referred the matter to the Chief Judge’s Committee on Admission to the Bar, chaired by Court of Appeals Associate Judge Jenny Rivera. If the committee decides to remove the question, as is expected, New York would be the 11th state to do so.

Realizing a Change Is Needed

In February 2019, the Conference of Chief Justices passed a resolution asking that “any questions that ask about mental health history, diagnosis or treatment” be replaced by questions that only focus on the applicant’s conduct.

The resolution prompted then-President-elect Hank Greenberg to establish a Multi-Disciplinary Working Group to review the New York Bar Admission questionnaire and report to the House of Delegates. The working group was asked to determine whether the New York questionnaire complies with the chief justices’ recommendations.

“The Working Group on Attorney Mental Health was unique in NYSBA history,” said Greenberg. “It was a multi-disciplinary body, drawing on the strengths of multiple NYSBA committees and a section, and working with extraordinary speed and skill to assist policymakers solve a serious problem.”

Engaging Key Stakeholders

Lauren Sharkey, the new chair of NYSBA’s Young Lawyers Section, was asked to assemble a diverse group that could lead on this issue.

“Personally, it was rewarding having our voice being sought out by leadership and it has engaged our members to be more active within the State Bar,” Sharkey said.

Sharkey began the outreach by asking members of her section’s Executive Committee and members of other committees to participate. The Working Group took shape with 16 NYSBA members, from the Young Lawyers Section, Lawyer Assistance Committee, Committee on Disability Rights and two law students.

The announcement of the Working Group struck a chord with legal media, and outlets like the New York Law JournalLaw360 and Bloomberg Law reported on the group’s creation and goals. Separately, a change.org petition created by second-year Columbia Law School student Samantha Braver began circulating on social media and Sharkey, as did many of her colleagues in the Young Lawyers Section, lent their signatures to the petition. It has now been signed by more than 1,300 people.

“The Working Group’s report and recommendations drew praise from within and without the legal profession,” said Greenberg. “It has already been cited by policymakers as a catalyst and blueprint for change.”

A Cross Section of Support From the Legal World

The Working Group’s report, which recommends the elimination of all mental health inquiries from the application for admission to the New York State Bar, was adopted by the House of Delegates at its most recent meeting in November.

Once again, the legal media as well mental health publications were there to report on the adoption of the group’s recommendations. Just two days after the recommendation were approved, state Sen. Brad Hoylman, chair of the Senate Judiciary Committee, introduced a bill that would bar the state from asking prospective attorneys about their mental health.

In a show of solidarity, deans from 14 of New York’s 15 law schools submitted a letter to Chief Administrative Judge of the Court Lawrence K. Marks urging the Administrative Board of the Office of Court Administration to remove question 34 from the state bar’s application.

“The deans of New York State law schools responded swiftly to my invitation to go on the record supporting the report’s recommendation to remove the question on mental health,” said CUNY School of Law Dean Mary Lu Bilek. “Law school deans take seriously both their obligation to support the professional development of their students – including their physical, emotional and mental health – and their role in the maintenance of the integrity of the profession through vigilant regulation.”

Sharkey continues to advocate on this issue, having recently written an article for the American Bar Association’s Before the Bar Blog, where she notes that “many states have already removed questions like these from applications, so why not New York too?”

“The legal profession talks a lot about how we can make others feel ‘whole’ through providing a discrete remedy – whether that’s damages, an injunction, a change in policy,” wrote Columbia Law School student Samantha Braver in a recent NYSBA Blog post. “Why aren’t we asking this question to ourselves? How can we ensure we are getting the support we need as we help others cross the moats in front of them?”

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