The nation’s top state judges and the U.S. Department of Justice have teed up a tricky issue for state bar examiners in Georgia and around the country: Do questions about new law school graduates’ mental health do more harm than good, and do they violate the Americans With Disabilities Act?

The Conference of Chief Justices in February urged bar examiners to eliminate questions about mental health history, diagnoses or treatment. The group argued the questions may violate the ADA and “are likely to deter individuals from seeking mental health counseling and treatment.”

The director of the Georgia bar examining office said the state wasn’t considering a change the questions, but several other states are.

In April the U.S. attorney in Connecticut agreed to end an investigation into ADA complaints when Connecticut bar examiners said they would no longer ask bar applicants about their mental health histories. The chair of Connecticut’s bar examining panel said that, although her group didn’t concede the questions violated the ADA, they’d already decided to get rid of the inquiries.

Anne Dranginis

“The data didn’t demonstrate we achieved any useful information” from questions about candidates’ mental health, said Anne Dranginis, a former Connecticut appeals court judge. “It is [applicants'] conduct we need to assess.”

Other states, such as New York and California, are mulling whether to keep applicants’ mental health history secret from bar examiners.

A recent study reported that 3 of 10 lawyers are depressed, and 2 of 10 suffer from anxiety or problem drinking.

In Georgia and 35 other states, bar fitness applications ask a question about mental health that is nearly identical to the one Connecticut agreed to remove, according to a national survey of bar fitness questions reported by the Bazelon Center for Mental Health Law in February.

Heidi Faenza, the director of bar admissions for Georgia, said the Board to Determine Fitness of Bar Applicants has no plans to change its questions.

“The Board believes the current fitness application is appropriately limited in scope and focuses on diagnoses, conditions, and impairments that have affected or reasonably could affect an applicant’s conduct, behavior, or ability to practice law in a competent, ethical, and professional manner,” she said.

Chief Justice Harold Melton of the state Supreme Court noted that, in 2014, the fitness board amended the questions “to focus more on conduct rather than on mere diagnosis.”

“In the current application, one question is forward-looking and inquires about current conditions that might reasonably be expected to affect the ability of the applicant to practice law; the other question is backward looking and inquires about conditions that actually have affected the ability of the applicant in the past to function at work or school,” Melton said. “Just as we have done a number of times before, we will continue to evaluate our process to minimize intrusion of applicants while endeavoring to protect the public.”

The national legal community has been debating the issue for at least five years. In 2014, the Justice Department explored complaints that a handful of states were violating the ADA. It settled one matter in Louisiana.

In 2015, the American Bar Association urged bar examiners to avoid inquiries into applicants’ mental health. Supporters of the resolution said they didn’t want would-be lawyers to shy away from treatment for their mental health struggles on a fear they’d have to disclose it on their bar fitness applications. Critics said mental health questions could find issues bar examiners need to know.

Amanda Farahany

Amanda Farahany, who represents plaintiffs in employment cases, said the questions violate the ADA. “Decisions should not be made by taking in to consideration someone’s mental health,” she said.

Myra Creighton, a partner at employment law boutique Fisher & Phillips who focuses on ADA compliance, reviewed Georgia’s questions at the Daily Report’s request.

The question asked by 36 state bar examiners—No. 25 in Georgia—is, ”Do you currently have any condition or impairment  (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner?”

“‘In any way?’” asked Creighton. “That’s a little overbroad.”

In Georgia, Question 26 asks, “Has your functioning at school or at work ever been  sufficiently impaired (as the result of substance abuse, alcohol abuse, or  a mental, emotional, or nervous or behavior disorder or condition) as to require inpatient or  outpatient treatment?”

“Too broad,” said Creighton, referring to inquires about outpatient treatment and suggesting a time limit of the past three to five years might help, too. Any question starting with, “Have you ever …” is problematic, she said.

Georgia Question 27 is, “Within the past five years, have you asserted any condition  or impairment as a defense, in mitigation, or as an explanation for your conduct in the  course of any inquiry, any investigation, or any administrative or judicial proceeding by an  educational institution, government agency, professional organization, or licensing  authority, or in connection with an employment disciplinary or termination procedure?”

That question does not violate the ADA, Creighton said, adding that bar examiners may not necessarily reject applicants who acknowledge mental health challenges.

Dranginis of the Connecticut board emphasizes that point: ”People aren’t disqualified for mental health alone.”

Yet she acknowledged that the questions have unnecessarily delayed bar admission for perfectly qualified candidates over the years.

The Department of Justice did not respond to a request to discuss its approach to the ADA compliance of bar examiners’ mental health questions.

Asked why the process of changing bar questions hasn’t moved much since the Justice Department and the ABA started working on it in 2014 and 2015, Dranginis said, “I don’t know if it’s the combination of a lack of explicit law or discomfort talking about mental health.”

“People naturally go slowly because of uninformed concerns that are entrenched in public notions about mental health challenges,” she added.

Chief Justice Matthew Durrant of the Utah Supreme Court co-chaired the chief justices’ conference panel that created the February resolution. He said the ADA issues are “a critical driver” behind potential changes of the questions. But he said it’s important to destigmatize mental health treatment so lawyers and law students feel comfortable getting help.