New Jersey is the latest state to seek to abolish the mental health questions asked on the “character and fitness questionnaire” required of all Bar applicants. Late last month, the New Jersey State Bar officially requested that the NJ Supreme Court remove item 12B from the bar applicant questionnaire: Do you currently have any condition or impairment (including but not limited to substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner and in compliance with the Rules of Professional Conduct, the Rules of Court, and applicable case law?
Jeralyn Lawrence, New Jersey State Bar Association President, speaking to the New Jersey Law Journal, explained the reasoning behind her advocacy for the change. “We are a profession in crisis. The pace of our practice is not sustainable. We need to remove barriers in place for people to get help, and 12b, we believe, is a barrier to the bar. We’re advocating strongly that the court remove that question so that it’s not a detriment to people getting help,” she said.
Virginia and New York removed its mental health questions from the bar admission application in 2019 and 2020 following similar advocacy efforts by law students and interested groups. And, in January, Ohio abandoned questions related to diagnosis and only asks about mental health as it relates to disciplinary actions or guardianship/conservatorship.
According to the ABA:
Fourteen states do not request a candidate’s mental health status in evaluating their fitness for the Bar: Arizona, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Mississippi, New York, Pennsylvania, Tennessee, Washington, and Wisconsin.
Four states—Indiana, Idaho, New Hampshire, and Texas—ask about mental health only in the context of disciplinary action.
One state—Ohio—asks about mental health only in the context of disciplinary action and court appointed guardianship/conservatorship.
Two states—California and Connecticut—ask about mental health only in the context of court appointed guardianship/conservatorship.
Ten states—Louisiana, Montana, New Mexico, North Carolina, North Dakota, Oklahoma, South Dakota, Vermont, West Virginia, and Wyoming), and Washington D.C.—have adopted the three mental health questions drafted by the National Conference of Bar Examiners (NCBE) that are shown below:
Diagnosis: Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner? Note: “Currently” means recent enough that the condition or impairment could reasonably affect your ability to function as a lawyer.
Treatment: Are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment or because you participate in a monitoring or support program?
Defense/Disciplinary Action: Within the past five years, have you asserted any condition or impairment as a defense, in mitigation, or as an explanation for your conduct in the course of any inquiry, any investigation, or any administrative or judicial proceeding by an educational institution, government agency, professional organization, or licensing authority; or in 10 years, connection with an employment disciplinary or termination procedure?
Eleven states that do not follow the NCBE test—Alabama, Arkansas (disciplinary action only), Colorado, Delaware, Indiana (disciplinary action only), Kentucky, Nevada, New Hampshire (disciplinary action only), Oregon, Rhode Island, and Texas (disciplinary action only)—ask at least one of the NCBE questions.
Fifteen other states ask questions of their own drafting.