Attorneys applying for admission to the New York State Bar would no longer be asked for details about their mental health, as they currently are, under legislation set to be introduced Monday by state Sen. Brad Hoylman, D-Manhattan.

The legislative proposal follows a meeting Saturday from the New York State Bar Association's governing body, which voted to recommend that the state stop asking applicants about their mental health.

Hoylman, who chairs the Senate Judiciary Committee, decided to sponsor the legislation after a working group convened by the State Bar recommended that prospective attorneys not be asked about their mental health while applying for admission.

"Bottom line—law students feel more stressed and experience more mental health issues than ever before, whether it's student debt or the job market, or the demands of being a law student," Hoylman said. "This is the last thing they should have to contemplate as they apply to the bar."

The legislation would also make the section of state law on attorney admission gender neutral. That law currently only includes male pronouns.

Attorneys who've sought admission in New York, recent law school graduates in particular, may already be familiar with the question Hoylman and the State Bar Association want to ban. It's asked on the application for admission in each of the state's four judicial departments.

About halfway through the application, a question asks the applicant if they have "any condition or impairment" including a "mental, emotional, psychiatric, nervous, or behavioral disorder." 

If the applicant responds that they do have such a mental health condition, the application then prompts the individual to explain, specifically, what the nature of that challenge is. The application then asks if the individual receives ongoing treatment or support for their condition.

The content of the application is largely within the discretion of state court officials, who have yet to take a public position on whether the question about mental health should be removed.

But if Hoylman's bill is approved by state lawmakers, any application for admission to the state bar in New York would be barred from asking prospective attorneys about their mental health or history of substance abuse, according to bill language obtained by the New York Law Journal.

"Such questionnaire shall not include any questions requiring the disclosure of the applicant's history, diagnoses or treatment of mental health conditions or impairment, substance abuse or addiction," the bill text says. 

Questions that would require applicants to disclose prior conduct that may be relevant to their character and fitness would still be allowed. Applicants could also be given the option to voluntarily disclose material that might explain prior misconduct or demonstrate their character.

The legislation falls in line with other measures approved in recent years, with bipartisan support, that have been intended to reduce the stigma of mental illness and those who've sought treatment for those conditions.

That's also part of what drove the State Bar Association's House of Delegates to recommend, on Saturday, that the state stop asking prospective attorneys about their mental health.

The House of Delegates overwhelmingly approved an action calling on state court officials to remove the question about mental health from applications for admission to the state bar. The action isn't binding but does carry weight within the legal profession.

Hank Greenberg, the current president of the State Bar Association and a shareholder at Greenberg Traurig, lauded the vote in a statement Monday.

"The hard truth is that stigma around mental illness remains a significant barrier to treatment within the legal profession, and society at large," Greenberg said. "There is compelling evidence that mental health questions on bar applications are ineffective and unnecessary, and several states have already done away with them."

It was the result of a report published in August by the State Bar Association's Working Group on Attorney Mental Health, which was launched in June to study the question about mental health. The panel ultimately recommended in its report that the question be scrapped.

The 22-member group of attorneys looked at the impact of the question on applicants, whether it had any justifiable purpose, and if it was even legal for the state to include it. 

Among the report's findings was that, because of the question, many law school students have avoided seeking treatment for mental health issues out of fear it would negatively impact their bar admission. 

"When developing question 34, there was little or no consideration of its impact on law students," the report said. "New data suggests that an inquiry into mental disability, in and of itself, may have harmful effects on law students seeking to be admitted to the Bar."

Hoylman, while speaking to the New York Law Journal, said that finding was particularly troublesome, as were the report's other conclusions on the question's inclusion.

"The concern raised by the State Bar [Association] that applicants might avoid seeking help regarding their mental health because of this question is alarming," Hoylman said.

Law school students, the report said, are under more pressure today than in previous generations, which can negatively affect their mental health. 

Aside from the more traditional pressures of law school, like exams and anxiety about the job market, students today also have the added weight of student loan debt. It's not uncommon for recent graduates to leave school with debt exceeding $200,000, the report said.

It could also be illegal for the state to ask prospective attorneys about their mental health history, the report said.

The Americans With Disabilities Act outlaws any denial of participation to someone based on their disability. So, anyone who discloses a mental health condition on the state's application for admission to the State Bar is entitled to ADA protections, the report said.

"Screening out otherwise qualified applicants with mental disabilities is not only impossible and unnecessary, it is ultimately detrimental to the profession of law and those we serve," the report said. "As such, it violates the proscriptions against discrimination of Title II of the ADA."

While few attorneys—less than 2%—report a mental health condition on their application for admission to the state bar in New York, research has estimated that the number of attorneys who share those challenges is actually much higher.

About a fifth of law school students reported a diagnosis of depression or an anxiety disorder in a survey conducted five years ago by the Survey of Law Student Well-Being and published in  the Journal of Legal Education, for example.

The executive committee of the State Bar Association also approved a proposal Friday calling on the state Legislature to add a provision to the state constitution establishing mental health as a matter of public concern.

The state constitution already labels the protection and promotion of physical health as a matter of public concern. The State Bar Association's proposal would add mental health to those protections.

"Our society still has so much to learn about mental health issues and how they can impact our daily lives," Greenberg said. "Establishing in the State Constitution that mental health is a matter of public concern will benefit all New Yorkers by recognizing that it is as important as physical health to our well-being."

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