The issue is heating up again for the legal profession. What kinds of questions in regard to candidates' mental health treatment can the Connecticut Bar Examining Committee ask of fledgling attorneys applying for admission to the bar?
A recent article by Jay Stapleton of "The Connecticut Law Tribune" gives you a taste of the kinds of questions the Bar is currently asking. According to Stapleton, the recent application for admission to the bar asked the question, "During the past five years, have you engaged in conduct or behavior which caused you to be voluntarily or involuntarily treated for...disorders [such as] schizophrenia, bipolar or major depressive mood disorder, drug or alcohol abuse, impulse control disorder, kleptomania, pyromania, explosive disorder, pathological or compulsive gambling."
(Personally, I think if they are interested, they should really check out narcissistic personality disorder as well since, as I understand it, a good majority of lawyers have that disorder.)
What will be done if the candidate responds in the affirmative? Apparently, "If the applicant does have a relevant history, they are required to turn over mental health records, for the CBEC to review."
Attorneys who have been subjected to such inquiries speak about them as being degrading, humiliating, and traumatic.
Let me reach across the great divide and embrace my brother and sister attorneys for understanding what we parents in CT Family Court have been saying ever since mental health professionals started to make their way into the court system and began their reign of terror on us. You are absolutely correct. Inquiries in regard to our mental health as parents has no bearing on the legal proceedings in family court, or our ability as parents, any more that such inquiries have relevance in regard to how an attorney practices law.
As parents who have been discriminated against, stigmatized, scrutinized, labeled and subjected to the worst kind of invasion of privacy based upon our mental health history, or the fabricated reports generated by the courts once we arrived, let us say to you our brother and sister attorneys who are stuck in the same exact boat, we share your pain.
Attorney Kathleen Flaherty's story is a case in point. According to an article published in "The New York Times" on August 5, 2013 by Melody Moezzi, Attorney Flaherty is a CT attorney who graduated from Harvard Law School and who has bipolar disorder. She was a member of the Massachusetts and New York bars. Then in 1990, she applied for admission to the Connecticut Bar and was denied. Upon appeal, she had to endure a year of hearings regarding her mental health which, according to Moezzi, "one questioner characterized as torture."
Ultimately, Attorney Flaherty was granted conditional admission which required her to provide "a doctor's report and affidavit semi-annually" confirming she was fit to practice for a period of nine years. According to Moezi, "No one should have to experience such humiliation. Not just because such mental health inquiries are irrelevant and unethical, but also because they can be illegal. The regulations implementing Title II of the Americans With Disabilities Act forbid public entities to administer licensing programs that discriminate against qualified candidates on the basis of disability."
Eureka! Just fabulous! Again, we are on the same ground. Because you see, my attorney friends, and now compatriots and soulmates, (let me kiss your cheeks!) the Americans With Disabilities Act also forbids public entities such as the Connecticut Judicial Branch from discriminating against litigants on the basis of disability, which includes in its definition, "mental health disability."
For those who need clarification, in essence, Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity, 42 U.S.C. Sec. 12132.
The issue of mental health inquiries on the application to the bar has been boiling for over a decade. In 2006, it became particularly relevant when the CBEC included depression as part of their general inquiry regarding mental health treatment. This significantly extended the net in terms of people who would be identified and subjected to increased scrutiny.
The spotlight again shone on this issue when Dr. Michael J. Herkov, a mental health consultant with the Forida State Board of Bar Examiners, published an article entitled "Mental Illness and the Practice of Law" in the March 2013 edition of "The Bar Examiner"
In this article, Dr. Herkov attempted to provide some guidelines for when it would make sense to investigate a candidate further before allowing him or her to proceed with practicing law. This article prompted a written response in a Letter to the Editor of "The Bar Examiner" signed by 43 "lawyers with mental health conditions, mental health experts, and disability civil rights practitioners" who protested the presumptions behind Dr. Herkov's attempt to establish some guidelines for screening applicants to the bar who have mental health disabilities.
What this does, states this letter to the editor, is create "a rebuttable presumption that mental illness may equal an incapacity to practice law unless and until "proven" otherwise. These are the very prejudices and stereotypes that the ADA prohibits and is designed to eliminate."
Yes, yes, I agree. In the same way, attempts to screen parents in CT Family Court in order to determine whether they should be allowed to be parents creates a very similar rebuttable presumption regarding parenting, and it is just as wrong to do that to parents as it is to do that to attorneys!
The letter continues on to say, "we contend that the bar's goal of protecting the public against unfit practitioners and preserving the integrity of the profession is best served by targeting questions to a person's behaviors and conduct."
This makes absolute sense to me in regard to my parenting. What difference does it make what diagnosis I have if I feed my children three meals a day, provide them with a roof over their heads and beds to sleep in, pay their basic expenses, make sure they are clothed and have their books when they board the bus for school, and stand there waiting when they get off the bus. If I have a record of getting my children to all their after school activities and doctor's appointments in a responsible manner, why do you need to put me through a psychological examination, when it is what I have done to further my children's best interests that matters, not what labels you can slap on me.
Seriously, in the scheme of things, if you have full information regarding what I have done with my children, what difference does a label make?
The letter continues on to say, it is a well-established fact "that a mental health condition or history of treatment does not in itself preclude one from a successful, productive, responsible life as an attorney."
Likewise, the same material does not, "in itself preclude one from" having a successful, productive, and responsible life as a Mom or Dad.
That is the bottom line.
The letter continues on to say more. Apparently, Dr. Herkov wrote extensively about what he saw as the correlation between mental health diagnosis and good character. The signers of the letter to the editor, however, find this correlation completely offensive stating, "The empirical evidence for this kind of prediction is notoriously limited, and, thus, when used in this way, in many contexts, legally impermissible and ethically approaching what many would deem as unconscionable."
Unconscionable. Unconscionable. That is what I call the behavior of judges in CT Family Court who point their fingers at litigants and accuse them of having mental health disorders without any kind of testimonial or documentary evidence.
That is what I call it when judges and attorneys deny litigants their rights to due process as well as their human, constitutional and parental rights based upon a mental health diagnosis or history.
Further, the writers of this letter state, "no evidence indicates that mental health providers or bar examiners can predict inappropriate behavior on the basis of a person's mental health history. What the evidence does show is that past behavior and not mental health condition is the most reliable predictor of future behavior."
Right, that is exactly right. This is why assigning psychiatrists to do custody evaluations and ordering psychological evaluations are completely irrelevant, because the ability to parent, in the same way as the ability practice law, has nothing to do with a mental health label, and everything to do with a persons behavior up to that time.
Finally, the letter states that assessments in regard to a candidate's fitness to work as an attorney "should comply with the ADA's mandate that persons with disabilities, including mental disabilities, be assessed as to their abilities, not disabilities."
Parents, also, should be assessed in regard to their parenting based upon their abilities, not their disabilities.
I couldn't agree more.
More recently, on January 31, 2014, Attorney David McGuire and Sandra Staub of the American Civil Liberties Union of Connecticut sent a letter to retired Judge Anne Dranginis, Chair of the CBEC asking the Committee to remove these questions in regard to mental health background from the applications to the Bar.
In addition, recently the U.S. Department of Justice indicated that states which inquire into mental health condition or treatment when assessing a candidate's fitness to practice law are in violation of Title II of the ADA.
Samuel Bagenatos, a University of Michigan professor and disability law expert agrees that under Title II of Federal ADA law, the focus should be on what people are capable of doing, not on their medical condition. And further Bagenatos stated, "That is the law, plain and simple. As the gatekeepers to the legal profession, the bar should know and follow the law."
Likewise, litigants in CT Family Court think that Family Court should obey the law as well. For once, we all have common ground. It seems no one likes to be bullied, harassed, stigmatized or discriminated against based upon a label, particularly when it is against the law.