Law students who need mental health counseling aren’t getting it for fear they will be denied admission to the state bar, according to organizations across the state that are demanding changes to the application.
Student groups at the University of Richmond and Washington & Lee University have sent letters to Virginia’s Board of Bar Examiners asking it to ax a portion of the application that prompts the disclosure of mental health conditions.
The University of Virginia Student Bar Association plans to join the effort, and law students at the College of William & Mary, George Mason University and Liberty University also are considering taking action.
Efforts to strip applications of mental health-related questions have surged since the national bar association recommended action on the matter this year across the four in five U.S. states that include some form of mental health question on their bar applications.
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“It’s kind of contradictory that we’re preparing these lawyers and when we go to law school, these law schools are filled with counseling services during this stressful time, but when we’re going to be barred, it could potentially harm their entry to become a professional,” said Catherine Woodcock, the Student Bar Association president at Washington & Lee.
The outpouring follows a shift the group that grants entry into the state bar made to the application three years ago, which critics say does not do enough to prevent a chilling effect.
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The Board of Bar Examiners, the five-person Supreme Court of Virginia panel that grants or denies entry into the bar, says a law license is not based on health diagnosis or treatment. A board spokesperson said the students’ input will be funneled through a committee.
“We do not want students to feel like they need to avoid seeking help if they need it for fear that it will become a problem later,” said Catherine Hill, the secretary-treasurer for the Board of Bar Examiners. “That is absolutely not the case.”
No applicants were denied a law license in Virginia last year based on their responses to the mental health question, Hill said.
Law students and law school leaders argue, however, that students fear decisions are made based on their answer to that part of the character and fitness questionnaire, leading them to not seek treatment.
“While we appreciate that it’s not going to prevent admission, the fact that law students have to disclose it does prevent them from seeking services,” Woodcock said.
The issue is personal for Gray O’Dwyer, the leader of Virginia’s push to scrap the question.
While O’Dwyer was a first-year law school student at UR, she broke her left leg so severely in a rugby game that a steel rod had to be put in.
She struggled with the pain and sitting through her six- to eight-hour law classes. O’Dwyer had been diagnosed with anxiety and experienced panic episodes before. So as she fought the pain of the broken leg and the stress of her first year of law school, she decided to be proactive. Still, she worried about potential ramifications for her bar application after ultimately deciding to seek counseling.
“It was very hard to deal with that on my own,” O’Dwyer said.
A year later, a bad breakup that meant the loss of her Forest Hill house left her at the same crossroads: Seek counseling and disclose it on her bar application, or go through it alone.
Again, she decided to seek treatment.
“I have risked it, but there are so many law students who wouldn’t and don’t,” said O’Dwyer, 30. “The ability for me to have access to mental health services and access to counseling was so important for my success as a law student, and nobody should be denied that.”
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While O’Dwyer lived in Washington, D.C., she worked at the Lawyer Assistance Program. Still on the program’s mailing list, she received a distribution this winter notifying her of a resolution passed by the American Bar Association that recommends lawyer regulators, such as Virginia’s Board of Bar Examiners, re-evaluate bar application inquiries about mental health history, among other things.
Resolution 105, the resolution passed by the ABA, is part of a nationwide effort to discard the questions across the 80 percent of states that retain language about mental health on bar applications.
In Wisconsin, for example, a lawyer petitioned that the state’s character and fitness process does not comply with the Americans with Disabilities Act, saying that someone who disclosed a mental health disorder and treatment on a specific question on the state’s questionnaire would be subject to more scrutiny than someone who did not.
In Virginia, students are specifically objecting to Section 18.2 of the character and fitness questionnaire, which asks: “Do you currently have any condition or impairment, including, but not limited to, (1) any related to substance or alcohol abuse, or (2) a mental, emotional, or nervous disorder or condition, which in any way affects your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical and professional manner? ‘Currently’ means recently enough so that the condition could reasonably have an impact on your ability to function as a practicing lawyer.”
Hill, of the state board, said the question’s focus is on conduct and behavior and not diagnosis and treatment. This isn’t the first time the board has grappled with mental health on its character and fitness questionnaire.
The board, which is the body that has the authority to amend the questionnaire, changed the focus of the question from treatment to conduct three years ago after a 2015 ABA resolution encouraged such agencies as the board to focus questions on conduct and behavior. Those changes were made in consultation with the Office of the Attorney General, Hill said.
Two decades earlier, an applicant, Julie Ann Clark, claimed that two questions on the board’s application about treatment and counseling for mental and nervous disorders violated the ADA.
The District Court for the Eastern District of Virginia ruled that the questionnaire was framed too broadly and violated Clark’s rights under the act.
In its rules for the character and fitness questionnaire, the board explicitly “encourages applicants who may benefit from treatment or counseling to seek it.”
“The board has a statutory duty to find, prior to licensure, that each applicant has the requisite fitness to perform the obligations and responsibilities of a practicing attorney. In making those determinations, the board has to conduct investigations into each applicant’s character and fitness,” she said. “That’s why we ask questions about conduct and behavior.
“We’re trying to balance what is obviously a very sensitive issue with our duty to protect the public and really it’s as simple as that.”
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An ABA survey of about 3,300 law school students found that more than one in six students screened for depression and nearly one in four screened for anxiety. Forty-two percent of the survey respondents said they needed mental health help.
Of those respondents, only half of them ended up receiving counseling because of concern over how it would affect their bar admission, academic standing and job prospects, according to the ABA.
Both Woodcock at Washington & Lee and Kurt Lockwood, UR’s Student Bar Association president, said they have heard from students expressing concern that if they get treatment, it will affect their bar admission.
“As soon as (students) found out it was part of the character and fitness part of the questionnaire, it was a hindrance to them seeking help,” Lockwood said. “Students struggle with these issues — at this point, it’s common knowledge — and we need to be doing more to address those concerns.”
While the question is worded so students use their own discretion on what to include, Lockwood said students are given advice from “all corners of the legal profession,” including professors and practicing lawyers, to disclose everything.
“You’re made very aware that it’s your burden to answer that character and fitness to the best of your ability and the advice that you’re given is to put everything down,” he said.
Hill, the state board representative, said such feedback as the students’ letters will be received through the Supreme Court of Virginia’s Attorney Well-Being Committee, which she serves on with four law school deans and a Board of Bar Examiners member.
O’Dwyer, the leader of the state movement, will have been through the confidential bar application process by the time a change would be made, but said it’s the right thing to do.
“Change doesn’t happen unless you ask for it,” she said, “and I’m asking.”