Does the Americans with Disabilities Act apply to bar examiners? If it were only that simple. Taking the approach with respect to entries that I’ve developed recently, part one discusses the facts of the case. Part two discusses the court’s reasoning and my responses. Finally, part three give the reader takeaways. The reader is free to delve into any or all of the various parts. Finally, please note that the opinions contained in this blog entry are my own and do not necessarily represent the views of any organizations that I may be a part of or of clients that I represent.

Consider:

I
The Facts

1. Person in law school visits the student counseling center and reports that he has experienced racing thoughts followed by a great deal of energy followed by a period of feeling down.

2. He then takes the Mini International Neuropsychiatric Interview, which indicates that he met the criteria for major depressive episode and manic episode thereby making a diagnosis of bipolar disorder most likely. In fact, he is given a formal diagnosis of bipolar two disorder.

3. Subsequently, he visits the clinic to address his level of depression and anxiety and is prescribed an antidepressant mood stabilizer, which he takes for two weeks but then stops due to financial constraints or perhaps due to the side effects of the medication. He also reports that he was depressed and that his mood fluctuated frequently.

4. Student completes his second year of law school and this continues counseling because: he had not had any episodes; was no longer affected in any way; and didn’t really see the point in wasting the counselor’s time.

5. Student returns for the third year law school and informs the student counseling center that his prescribed medications seem to be stabilizing and he was not as fatigued. That was the last counseling session of record while he was at the law school.

6. During the winter of his third year of law school, he consumed two alcoholic drinks prior to driving home and was stopped by law enforcement and was arrested for DUI with a blood-alcohol content of .09. He subsequently pleaded guilty to the reduced charge of reckless driving and paid a fine.

7. A month later, while drinking with some friends, he received a call from another friend requesting a ride home and despite being inebriated, decided to give her a ride home. Of course, he was stopped by law enforcement on the drive home with a blood-alcohol content of .104 and was arrested and charged with DUI. He pleaded guilty to that charge as well paid a fine, and lost his license for 30 days.

8. Student graduated from law school and prior to graduation, had applied to take the Iowa bar examination. However, because of the DUI arrests, the Iowa board of law examiners requested that he complete a substance use and need for treatment evaluation. That evaluation determined that he did not meet the criteria for substance abuse related disorder and there were no indications of substance use interfering with his ability to practice law. Even so, the Iowa board refused to allow him to sit for the exam because his arrests were too recent to allow for admission. They also requested a psychological evaluation, which revealed that he exhibited low levels of anxiety and that he did not presently meet the criteria for any psychological disorders. It also stated that his bipolar two disorder was considered to be in full remission since he had not experienced either a depressed or hypomanic episode in approximately one year. That evaluation concluded that there was no evidence to suggest any impairment in his ability to practice law in the state of Iowa due to problems in his psychological functioning. Iowa allowed him to sit for the Iowa bar exam and he passed and was admitted to practice law in Iowa.

9. He then sought admission to the South Dakota’s bar and took the bar examination a year after being admitted to the Iowa bar. He passed the exam. However, the South Dakota board of bar examiners determined that his application did not meet his burden to prove by clear and convincing evidence that he possessed a good moral character necessary for admission to the South Dakota bar and as a result scheduled a hearing.

10. Shortly after taking the South Dakota bar exam, he went to a clinic at the University of Iowa to follow up on his bipolar disorder since he had just acquired health insurance. At the time, he was experiencing some depression and indicated that he had one episode of low mood about once a year with each episode lasting about two weeks. He also thought he might have a milder form of mania. The evaluation concluded that he had clear manic/hypomanic symptoms in his lifetime but that it was less likely for him have bipolar disorder. He was prescribed medicine for anxiety and low mood and expected to follow up in six weeks, but did not do so. He reported that he discontinued the medication due to severe side effects and since he believed that he did not have bipolar disorder and the disorder was not affecting his quality of life or abilities, he decided that it was not worth the money to continue.

11. The hearing before the South Dakota board of bar examiners went on and the South Dakota board of bar examiners concluded that he did not meet his burden to show good moral character by clear and convincing evidence. In particular, the Board noted that he did not appear to be forthright in his presentation to the board; the board believed that he withheld some of his mental health records ; his decision to discontinue recommended treatments without consulting the prescribing physician were found to be problematic; there were periods in his life affected by mental health condition; he showed, at least the board of examiners believed so, disrespect to its members; and he evidenced poor judgment and lack of maturity. Accordingly, despite having passed the bar exam, he was denied admission to the South Dakota Bar. He then filed suit arguing that the South Dakota board of bar examiners violated title II of the ADA by denying him the ability to practice law in South Dakota due to his disability.

12. Prior to law school and for a time during law school, the plaintiff had a substantial number of littering and speeding violations.

All these facts are taken from the case of In re Application of Henry

II
The Court’s Reasoning and my responses:

1. Since the board of bar examiners is a public entity, it is subject to the ADA and both the court and the board of bar examiners have to comply with its provisions.

2. In order to be a person with a disability, a person must have a physical or mental impairment that substantially limits one or more major life activities. However, the record is very unclear as to whether he had bipolar disorder. He even agreed that the diagnosis was uncertain. Further, his medical records appeared to confirm that he may not be bipolar. Accordingly, the court could not conclude that he was a person with a disability under the ADA.

Response: There are two things that are interesting about this. First, there is a footnote that cites a case from the Seventh Circuit long before the amendments to the ADA, which held that a person with bipolar disorder may not be substantially limited in any major life activity and therefore, would not be protected under the ADA. However, it is hard to believe that a person with either bipolar one or bipolar two , especially with the advent of the amendments to the ADA, would not be considered being substantially limited in a major life activity when compared to most people in the general population. Further, the amendments also provide that an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, I find it very interesting that the record of a disability prong was not discussed by the court considering at one point the plaintiff did have a diagnosis of bipolar disorder.

3. The court found that the board of bar examiners perceived that the plaintiff was bipolar. In particular, the court noted that the plaintiff’s character and fitness hearing was prompted in part by indication on his bar application that he had suffered from bipolar disorder in the past. Also, the board made a number of inquiries into his mental health. Finally, the court’s reading of the board’s conclusion clearly show that the board had concerns about the status of his mental health. Accordingly, the plaintiff was covered by the ADA under the regarded as prong.

4. However, that is not the end of the matter because besides having a disability as defined by any of the prongs under the ADA, a person must also be qualified. With respect to a title II situation, qualified refers to whether the individual meets the essential eligibility requirement for the receipt of services or the participation in programs or activities provided by a public entity with or without reasonable modifications. An essential eligibility requirements for receiving a license to practice law in South Dakota is being of good moral character, which the plaintiff bears the burden of showing by clear and convincing evidence. The term good moral character includes but is not limited to qualities of honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility, and respect for the rights of others and for the judicial process. Also, statutory authority provided that certain conduct may prompt further inquiry into a person’s good moral character. Such conduct includes: unlawful conduct; making a false statement, including omissions; misconduct in employment; acts involving of dishonesty; evidence of mental or emotional instability; and denial of admission to the bar in another jurisdiction on character and fitness grounds.

Response: First, clear and convincing evidence is a high burden to show. One wonders why the burden is not placed upon the people seeking to deny admission. I suppose that is because practicing law is a privilege and if a person wants to be granted that privilege, it would be up to them to show that they are entitled to the privilege. Even so, clear and convincing is a high standard. Second, the essential eligibility requirements of a job or of a program or activity are usually not so vague. Could everyone really agree on what honesty, candor, trustworthiness, diligence, reliability, and respect for the rights of others and for the judicial process means? I do think broader agreement could be reached on fiduciary and financial responsibility.

5. The court said that the board of bar examiners at no point said that he cannot practice law in the state of South Dakota solely because of a diagnosis of bipolar disorder, but rather the board considered a variety of factors in recommending that admission be denied for the practice of law in the state.

Response: Causation under the Americans With Disabilities Act and under the Rehabilitation Act are different animals as we have discussed previously. Under the Rehabilitation Act, causation is, “solely by reason of disability.” However, under title II of the ADA, causation is, “by reason of disability.” As we have discussed, and other courts have noted, the two standards are not the same. The court seems to be focusing on the Rehabilitation Act, which was not at issue in this case, rather than on the causation language of title II of the ADA.

6. The court distinguished between a general denial of all applicants with a history of bipolar disorder versus an individualized assessment to determine whether a person meet the essential eligibility requirements to practice law in the state. Since the board did the latter, there was no violation of the ADA’s prohibition on screening out persons with disabilities from a governmental service, program, or activity.

7. When questions of public safety are involved, whether a person meets an essential eligibility requirement also involves consideration of whether the person is a direct threat to the health and safety of others. The court then cites to the Code of Federal Regulations as to what direct threat means.

Response: This is curious. Usually when one thinks of public safety, one thinks of things like fire, police, air traffic controllers, and the like. One doesn’t usually think of lawyers, though I can see the logic of it. Also, while the court cited to the federal regulations as to how direct threat is determined, which regulation is based upon a U.S. Supreme Court opinion ( School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987)), there isn’t any application in the opinion of direct threat, let alone using current medical evidence or the best available objective evidence, that the applicant was a direct threat to the public.

8. An individualized assessment of an applicant with a history of bipolar disorder is necessary to protect the public and courts have routinely upheld applications that asked whether an applicant has been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder within a specific timeframe, usually five years. The court says that the particular conditions, are serious mental illnesses that may affect a person’s ability to practice law. In particular, the court said that:

“One can only imagine the risk this may pose to clients, who often entrust an attorney with their livelihood, freedom, or even life. Clients suffer as much from an unintentional misconduct such as neglect as they would from the acts of an attorney caused by an intentional evil motive. [Citations omitted]. Additionally, the fact that a person may have experienced an episode of one of these mental illnesses in the past but is not currently experiencing symptoms does not mean that the person will not experience another episode in the future or that the person is currently fit to practice law.”

Response: I find paragraph 8 and the quote that follows problematic. It is absolutely true that the particular conditions are serious mental illnesses that may affect the person’s ability to practice law. However, it is also true that if these mental illnesses are being properly managed, then that may not be the case at all. Further, it is extremely problematic that a past history of MH is deemed to be indicative of a strike against a person’s ability to practice law because that episode may or may not happen in the future. Recently, we discussed a case in the title I context, that said an employer cannot consider where a person may be within a couple of years when deciding whether to hire that individual. The quote basically allows for speculation instead of current medical evidence or the best available objective evidence at the time of the application to determine the outcome, which is arguably contrary to what is called for by Arline as well as by the implementing regulations.

8A. Perhaps, realizing that they may have gone too far, the court acknowledges that a past diagnosis of mental illness does not necessarily predict the applicant’s future behavior, but nevertheless, mental health history is important so as to provide the board of bar examiners with information regarding the applicant’s insight into his or her illness and the degree of cooperation and control he or she has over it through counseling and medication.

9. The court says that to maintain public confidence, the court must only license attorneys that are emotionally and mentally fit to practice law and that it would be derelict in its duty if it did not have the board of bar examiners investigate the mental health of prospective lawyers.

Response: The statement goes too far. Agreed that attorneys need to be emotionally and mentally fit to practice law. However, investigations into a person’s mental health should be narrowly focused on the person’s mental health in so far as figuring out how that condition would affect that person’s ability to practice law. Further, such a conclusion should not be based upon speculation, but rather upon current medical evidence or the best objective evidence available.

III

Takeaways:

1. The ADA applies to the Board of Law examiners of the various states.

2. There is a tremendous loophole that the Board of Law examiners have with respect to character and fitness investigations. That is, character and fitness is considered an essential eligibility requirement for becoming a licensed attorney. Further, as discussed above, character and fitness can be quite vague.

3. Clear and convincing evidence is a tough burden for an applicant to the bar to meet if that person has a history of MH. A person applying for the bar in a particular state will want to check if their particular jurisdiction uses the clear and convincing evidence burden of proof.

4. Numerous blog entries of mine have discussed mixed motive with respect to the various titles of the ADA. Whether a mixed motive applies may be determinative to an applicant’s ability to run the gauntlet of the character and fitness committee if that person possesses a history of MH.

5. Lawyers are not generally thought of as engaged in public safety activities, at least I hadn’t thought of it that way. Nevertheless, from the applicant’s point of view, insisting that any decision be made upon current objective evidence or the best available medical evidence may be helpful to the applicant.

6. From the applicant’s point of view, making an analogy to title I of the ADA may be helpful. In particular, what are the essential functions of being an attorney and of being able to survive being an attorney? Also, what is the applicant’s current condition rather than his or her condition in the future. Both of these questions are relevant to title I cases and arguably should also be relevant in the case of becoming an attorney. That is, is the investigation into a person’s MH history focused on these two concerns or does it go considerably broader?

7. Finally, the applicant in the case that has been discussed here actually did this pro se. He may have underestimated just how complicated the ADA can be. Whether having a lawyer familiar with the ADA would have made a difference is hard to say, but a lawyer familiar with the ADA may have been able to do some of the advocacy mentioned in my responses and in my take away section.

8. Depending on how the state goes about dealing with applicants with mental health conditions, I could see an equal protection claim. Such a claim would rise or fall based upon the classification that the court put persons with disabilities in for purposes of for applying to be a member of the bar. If the court were to put persons with disabilities in the lowest equal protection class with respect to applying for the bar, the person with a disability would most certainly lose. Such a case would inevitably have as its fulcrum the case of Tennessee v. Lane, 541 U.S. 509 (2004).

Happy New Year everyone!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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