New York Chief Judge Janet DiFiore. Photo: Tim Roske

New York court officials agreed during a closed-door meeting Tuesday to consider removing a question from the state bar's application that asks prospective attorneys about their mental health, including any diagnosed conditions.

Chief Judge Janet DiFiore and the presiding justices of New York's four appellate courts referred the question to another committee for further review Tuesday. That committee is expected to decide in the coming weeks if the question should be removed, and if anything should replace it. The question could be changed to ask about behavior, rather than specific diagnoses, for example.

Any recommendations from that committee, which is chaired by Associate Judge Jenny Rivera of the Court of Appeals and focuses on admissions to the bar, are then expected to be sent back to DiFiore and the presiding justices for a final determination.

Lucian Chalfen, a spokesman for the state Office of Court Administration, confirmed Wednesday that New York's top judges sent the question to Rivera's committee for review during their meeting Tuesday.

"The Administrative Board met yesterday and decided to send the mental health question to the Chief Judge's Committee on Admissions to the Bar for their recommendations," Chalfen said. "The next meeting of the board will be early in the new year."

A final decision on the question's removal is expected soon, said Hank Greenberg, the current president of the New York State Bar Association and a shareholder at Greenberg Traurig.

"Based on what I was told, I'm hopeful the board will act quickly and soon after it receives the committee's recommendations," Greenberg said. "I am very hopeful there will be changes to Question 34 as it now exists."

Question 34 is a reference to the specific question on the application that queries prospective attorneys about any mental health conditions they may have, and asks them to say if their ability to practice law will be impaired or limited as a result.

Earlier this year, the New York State Bar Association set out to study whether that question should be cut, and promptly issued a report two months later calling for its removal.

"I could not be more excited, or prouder of the work of the working group of the association," Greenberg said. "It moved with extraordinary speed and rapidity itself."

The report of the group, called the Working Group on Attorney Mental Health, found that the question isn't necessary to evaluate a prospective attorney's character and fitness to practice, and may not even be legal. That's because asking about mental health may violate the Americans With Disabilities Act by appearing to exclude access to someone who discloses such an issue, according to the report.

"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.

Even worse, the report said, allowing the question to remain may actually exacerbate an individual's mental illness. Some applicants, according to the report, have foregone treatment over concerns it would impair their admission to the state bar.

"It's vitally important that this not drag on," Greenberg said. "Every day the question remains on the bar admission application, there's a law student in one of New York's 15 law schools that's dissuade or discouraged from getting mental health services when they feel they need it."

Tuesday's decision was the first official action from court officials to address the inquiry since the State Bar Association's report was published in August.

That was one of several efforts in recent months to consider the question after several state and federal entities voice support for its removal.

The latest effort was from the deans of almost every law school in New York, who recently penned a letter in November to state court officials calling on the question to be dumped.

The letter was inspired by the State Bar Association's report from August, which was later approved by the organization's House of Delegates. The vote doubled as both an approval of the report, and a formal position of the State Bar Association in favor of the question's removal.

Since that vote, legislation has also been introduced that would bar state court officials from asking about mental health on future bar applications. That was introduced by Sen. Brad Hoylman, D-Manhattan, who chairs the Judiciary Committee.

Removal of the question also has support from the American Bar Association, the New York City Bar Association, the national Conference of Chief Justices and the Mental Health Association in New York State.

READ MORE:

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