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Should Mental Health Questions Be on the Bar Application?

By Noah C. Hagan posted 04-08-2019 11:29

  

On January 23, 2019, the Michigan Supreme Court issued an order giving notice that it is exploring “whether questions regarding mental health should be included on the personal affidavit that is part of the application for the Michigan Bar Examination, and if so, what form those questions should take.”

Question 54a on Michigan’s bar exam application asks:

Have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or ability to cope with ordinary demands of life? If yes, provide the names and addresses of all involved agencies, institutions, physicians or psychologists or other health care providers and describe the underlying circumstances or the diagnosis, treatment or hospitalization.

Question 54b asks:

Have you ever had, been treated or counseled for, or refused treatment or counseling for, a mental, emotional, or nervous condition which permanently, presently or chronically impairs your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?

This issue implicates the Americans with Disability Act, 42 USC 12101 et seq. In 2014, the Department of Justice, in response to the complaint of a Louisiana bar applicant, concluded that Louisiana’s application should focus on an applicant’s conduct, not diagnoses or treatment (like questions 54a and 54b). In response, the National Conference of Bar Examiners revised its standard mental health questions to focus on conduct. Michigan’s questions, above, are focused not on conduct, but on diagnoses.

Nine states have eliminated mental health questions. Yale Law School compiled a chart summarizing bar exam application questions pertaining to mental health, among other issues. 

Some are concerned that continuing to ask questions about mental health and addiction will prevent applicants from seeking treatment. Others are concerned with how states handle applicants who have disclosed mental health or addiction treatment.

The State Bar of Michigan’s Lawyers and Judges Assistance Program offers confidential mental health and addiction-related services for law students, bar applicants, and practicing attorneys.

Comments are due May 1, after which the court will schedule a public hearing. Comments can be emailed to ADMcomment@courts.mi.gov or mailed to the Office of Administrative Counsel, PO Box 30052, Lansing, MI 48909.

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