Trisha Rich, left, and Laurie Webb Daniel of Holland & Knight.

Thomas Skelton was poised to join the Illinois bar after graduating from John Marshall Law School and passing the statewide exam in 2017. But he was tripped by one final hurdle when the committee on character and fitness declined to certify him, pointing to ongoing symptoms of mental illness. Experiencing delusional thoughts while his application was under review, Skelton sent approximately 40 emails to the committee's members impugning the integrity of their organization and the wider legal system.

Skelton's attorneys, Holland & Knight legal profession co-chair Trisha Rich and appellate chair Laurie Daniel, say the committee ignored testimony showing that he has his symptoms under control, thanks to medication. And they're now asking the U.S. Supreme Court to review a ruling by the Illinois justices that let the state bar committee's decision stand. They contend that the licensing board is violating the Americans with Disabilities Act by not providing Skelton reasonable accommodations in certifying his admission. Rich and Daniel spoke with ALM this week about the significance of their case, after filing their petition with the Supreme Court on Friday.

Dan Packel: How did the board go wrong on this issue?

Trisha Rich: Mr. Skelton's alleged bad behavior was a direct result of his medical condition. It's a behavior that is a manifestation of a diagnosed, and now treated, medical condition. For the board to point to that behavior, which frankly is fairly low-level inappropriate behavior, and say, "We're going to keep you out of the bar because of this," we think is a violation of the Americans with Disabilities Act. 

DP: Has this issue, or variants on this issue, been litigated before?

TR: Not at this level. One of the frustrating things about not only character and fitness cases but bar discipline cases is that in most cases the petitioner is disincentivized from appeal processes like this one. Our client, for instance, could wait two years and apply again. In most cases, it is better for petitioners to not rock the boat, keep their nose clean and try again in two years. 

Laurie Daniel: It's something of a case of first impression. That's partly because it's coming up through a unique forum. Every once in a while, though, you have something that comes up in a different avenue and presents a compelling issue, and we're hoping the court will recognize that here.

DP: With the increased focus in the profession on mental health pressures, is that one of the explanations for bringing the case forward in this fashion, rather than just the waiting for two years for another crack at it?

TR: I think our client's going to do both, right? Certainly, the increased visibility of mental health issues in the profession makes this a really interesting case for this time. Here, we have our client, who behaved in some pretty low-level inappropriate behavior that was a result of a mental health disorder that he subsequently was properly diagnosed with, properly treated with, and now has completely under control—and still is being frozen out of the Illinois bar.

Pe⁠rsonally, I think that if we are going to be a profession that does care about mental health issues in the way that we say that we care about mental health issues, we have to do better by the lawyers and law students who go out and do all the things we asked for: get diagnoses, get treatment, are consistent with their treatment, are doing better. The frustrating thing is they can't prove that they're worthy of a second chance unless we're willing to give them a second chance.

DP: You make the argument in your brief that the Illinois Supreme Court's ruling will have a wider impact on attorneys dealing with mental health issues. What do you fear will happen if that decision stands?

TR: I think it has a chilling effect. We have a problem in the profession with mental health, and we want to encourage people to get better: enter the program, get the health they need and maintain that healthful lifestyle. What we think is really important is that when people do that, we show them that there is a path forward.

DP: Are there any other pieces of the puzzle that I haven't touched on?

LD: [This case] reminded me of a really significant mental health case that came down just slightly over 20 years ago, when I was asked to represent the ACLU as amicus curae in the Olmstead v. L.C. case. It wasn't your typical circuit-split type case. What that case entailed was the state of Georgia was taking mentally ill individuals and restricting them into institutional care even though their treating physicians had recommended that they be placed in community housing. 

It was not a constitutional issue in front of the Supreme Court. The question there was whether the state had an obligation under the ADA to provide a reasonable accommodation. The Supreme Court granted cert and ruled in favor of L.C. For me, it was resounding, and that Olmstead case was a landmark decision for mental health. There's an institutional arrogance that I see coming through here that reminds me of institutional arrogance we saw by the state of Georgia, saying it could do whatever it wanted to segregate people with mental health issues.

It seems to me that the Illinois bar issue similarly reflects some institutional arrogance, where the bar acts like a sovereign and it's just going to decide things without providing the accommodation that's required by the ADA.

One of the disappointing things is that this case did have the treating physician testify, and there was not counter-testimony to what they were saying. You had five lawyers, who are laypeople who've not had any medical training, analyzing the medical testimony and substituting their own judgment over that of the treating physician. 

My second point—you're probably familiar with the Stanford study [on expanding access to the legal profession for those with criminal records] that got released last year. One of the most helpful things they had in there is that the character and fitness committees should include people that have backgrounds in psychological disorders or mental health disorders. I think that would be really helpful for people like Mr. Skelton. We know that one-third of lawyers and law students have had some sort of mental health illness. I think it would make a lot of sense to incorporate people with that kind of training and background into the process.

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