Bar Admissions Process Bends Toward Justice—With a Little Help
Connecticut Bar admissions questions no longer target a diagnosis—an immutable but often irrelevant characteristic—but instead focus on known behaviors that affect the candidate's ability to practice law.
June 14, 2019 at 10:24 AM
4 minute read
State bar examiners' recent decision to eliminate all questions about mental health, switching instead to behavior-based questions, has made Connecticut an early leader nationwide.
According to the Bazelon Center for Mental Health Law, others in the vanguard are Arizona, Illinois, Massachusetts, Washington state and Mississippi.
The change now aligns Connecticut's character and fitness questioning with federal disability law. It is the culmination of nearly three decades of effort by a cast of unsung Connecticut attorneys and disability advocates.
In a nutshell, the questions no longer target a diagnosis, an immutable but often irrelevant characteristic, but instead focus on known behaviors that affect the candidate's ability to practice law.
A good example of the behavior-based questioning is Connecticut's question 33. It asks whether the candidate has been arrested, fired, disciplined or breached a fiduciary obligation, or broken various other rules in the past five years.
This small change illustrates the evolution of something larger—how society seeks justice.
From caveman days, humans have been making quick-and-dirty decisions based on a stranger's appearance, race or other immutable quality. The primitive savage, confronting a stranger in the jungle, instinctively had a fight-or-flight response.
Potential foes, checking for rocks, began the custom of shaking hands, in self-defense. Humans evolved highly developed facial-recognition skills, but only, it turns out, for those of one's own race. In a “kill or be killed” world, those who were clearly “other” didn't merit deliberative evaluation, according to the anthropologists.
Modernly, this atavistic instinct has been at the root of pogroms, genocide and “ethnic cleansing.”
It's taken far too long to realize that it's unjust to prejudge people based on features they were born with or can't change: race, gender, ethnic origin, sexual preference, religion or, most recently, a diagnosis of a disability.
The same learning curve applied to bar examiners, and nothing was happening overnight.
With passage of the Americans with Disabilities Act in 1990, the general public was forced to consider disability access issues.
Four years after the ADA's passage, the American Bar Association passed a resolution urging bar examiners to narrowly tailor their questions about mental health status. Connecticut changed the questions, but still focused on finding a diagnosis. Meanwhile, studies were indicating that having a mental health diagnosis in one's past did not predict the likelihood of harm to clients. More often, it only served to subject candidates to long and often expensive probes of their private medical records and treatment histories.
In 2001, Jon Bauer, a UConn law clinical professor, published “The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act” in the UCLA Law Review. One of his conclusions was that “there is simply no empirical evidence that applicants' mental health histories are significantly predictive of future misconduct or malpractice as an attorney.”
Bauer's law review articles and other scholarly surveys of the data found that mental health histories were useless as a predictor of misconduct. The U.S. Department of Justice, in 2014, notified Louisiana and Vermont that their bar application questions targeted people with disabilities unnecessarily—and perhaps illegally.
Questions asking whether a diagnosis, “if left untreated[,] could affect” ability to practice law reduced the question to “do you have a diagnosis.” Framing it as a future hypothetical actually shed no light on the candidate's fitness to practice.
In the 2015 report by the ABA's section on individual rights and responsibilities, these arguments were raised to support of a new resolution calling for complete elimination of any questions asking about mental health history. Connecticut heeded the call.
In nearly three decades of effort to vindicate ADA principles, no one has worked longer or harder than Bauer to bring fairness to the bar exam questions, as reflected in Law Tribune coverage of his clinic's efforts from the 1990s forward, and Bauer's recognition by the Law Tribune as a nominee for Attorney of the Year.
Throughout its history, the legal profession has the challenge of policing itself to protect the public. Bauer's work has now elevated the fairness and justice of meeting that challenge
In a letter notifying law students of the change, Bauer downplayed his own role, and was broadly generous in his praise of many Connecticut lawyers, judges and others who joined in the effort.
|This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllADVANCE Act Offers Conn. Opportunity to Enhance Carbon-Free Energy and Improve Reliability With Advanced Nuclear Technologies
Trending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Election 2024: Nationwide Judicial Races and Ballot Measures to Watch
- 3Guarantees Are Back, Whether Law Firms Want to Talk About Them or Not
- 4How I Made Practice Group Chair: 'If You Love What You Do and Put the Time and Effort Into It, You Will Excel,' Says Lisa Saul of Forde & O'Meara
- 5Abbott, Mead Johnson Win Defense Verdict Over Preemie Infant Formula
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250