Should the Character and Fitness Application Include Questions Pertaining to Mental Health?

By: Rachel Carroll

In the last 10 years, the United States has slowly, but surely, started the process of destigmatizing topics surrounding mental health. The COVID-19 pandemic has spurred this topic of conversation even more, as many Americans face the consequences of prolonged burnout and stress. As the World Health Organization notes, people across the world report symptoms of depression, anxiety, and even post-traumatic stress disorder since the start of the pandemic.

Even before the pandemic, the legal profession has been no stranger to mental health-related illnesses and substance abuse concerns. Yet many law students and attorneys still struggle to seek support due to the profession’s continued stigmatization of mental illness and those who choose to receive appropriate treatment. Perhaps one of the best demonstrations of this is the required Character and Fitness (C&F) application third-year law students and recent graduates must submit to their state bar association. The extensive questionnaire is often described as the “ultimate background check,” used to determine whether a potential lawyer is morally fit to enter the legal profession.

The topics on the application range from employment history to academic misconduct to criminal and civil violations, but some states go as far as to ask the prospective attorney about their history of mental health and/or substance abuse related incidents. The controversy surrounding such questions pre-date the pandemic, with legal scholars having tracked this issue for decades. Many of the states differ in the exact range of content included in their Character and Fitness applications, but there are a few states that have begun removing mental health-related questions. For example, New York became the 11th state to abolish such questions on February 26, 2020. Some states have opted to keep these questions, but limit their scope, the most recent of which is Ohio. The American Bar Association recently identified the states that do and do not ask mental health-related questions on their applications. In the same post, they explain that these questions tend to fall into four categories:

1. diagnosis or existence of a mental health condition that could affect an applicant’s ability to practice law;
2. treatment, in-patient or out-patient, of the aforementioned condition;
3. role or use of the condition or impairment as an explanation or defense in legal or administrative proceedings; and
4. whether the applicant has ever been party to conservatorship or court-appointed guardianship proceedings.

Regardless of to what degree a state’s C&F contains mental health questions, it’s important to recognize that the mere fact such questions exist affect current and future law student’s decisions regarding their own well-being. In a Teen Vogue article, Samantha Beaver, a then-recent graduate from Colombia Law School, expressed her own relief at New York’s decision to exclude these questions. Beaver also demonstrates how detrimental the legal profession can be to a person’s mental health, telling the story of how her friend’s fiance, an attorney, committed suicide after battling depression in 2019. Brian Cuban details how his own friend experienced near-interrogation from the state bar after choosing to honestly disclose his own mental health problems. Despite his friend lacking a criminal record or drug and alcohol abuse problem, the bar examiner had told him that his application “reflected someone not equipped to practice.” A blog dedicated to sharing anonymous law student’s mental health-related stories posted a submission from a law school graduate who describes how their diagnosis and treatment for PTSD caused the denial of their admission to their state’s bar.

Of course, the goal of the C&F application is to determine the prospective lawyer’s ability to successfully enter the legal field. On the one hand, questions related to mental health do help state bar associations make this decision (no matter how ill-equipped to handle this information they may be). After all, the most common piece of advice one receives before filling out your own C&F is: when in doubt, disclose, disclose, disclose. Besides, how can one be completely and wholly truthful if they are not given the opportunity in the first place? However, the most common outcome when students face these questions is that they either lie, and claim they’ve never faced mental health challenges, or they refuse to seek treatment for fear of denial to the bar.

This ultimately begs the question of whether or not C&F applications should include mental health and substance abuse-related questions. If states insist on keeping such questions in their applications, perhaps they should consider reforming how C&F hearings are conducted. First, if a C&F board decides that further proceedings are required in order to assess an applicant’s fitness, they do not disclose to the applicant what area of their application the board is concerned about. Instead they often begin meetings with a variation of the question: “Do you know why you’re here today?” This elusive behavior forces applicants to play a guessing game, and defend themselves in front of the board for concerns they themselves have not even been made aware of. Further, C&F hearings do not proceed in front of a judge or jury, and instead are heard by a panel of board members. Although a court reporter is present, and testimony is offered under oath, the formal rules of evidence do not apply.

Applicants are arguably at a huge disadvantage, and placed into a “damned if you do, damned if you don’t” situation. If someone decides to honestly disclose their history of mental illness and treatment, they face the possibility of rejection from the C&F board. However, if someone decides not to disclose their history, for fear of denial, they could face disbarment if the board later discovers their dishonesty. In addition, this further deters struggling law students from seeking support, as previously mentioned. In summary, the board that claims to value honesty and full disclosure, punishes those that do exactly that, the irony of which is not lost on students and attorneys alike.

If you’re like me, and knew the C&F application existed prior to law school, but assumed it would only matter if you had racked up criminal charges, it can seem like a gut punch to realize these additional obstacles exist. I have battled with my own mental health issues for many years. The fear I have regarding the C&F application does not stem from pondering whether or not to disclose these issues. I am extremely proud, honest, and vocal of the growth and progress I’ve made over the years – both of which would not have been possible without treatment and an extensive support network. Rather, I’m afraid of being punished for choosing to pursue what has been in my best interest, something already difficult for many of us to do. Right now, my stomach twists at the thought of undergoing three years of law school, simply to be told I am unfit to practice law because of something that is, ultimately, part of who I am. Contrary to popular belief, mental illness is not something you can erase. It is not something you can wish or work or will away. It is however, something you can work on, if provided the right tools. As Shakespeare wrote in his play Henry V: “self-love… is not so vile a sin, as self-neglecting.” I urge students and attorneys to seek appropriate counseling and treatment, regardless of existing stigma around mental illness. Like any other area of law, with enough advocates and support, we can reshape the process by which prospective attorneys are deemed fit, and destigmatize the narrative surrounding mental health.

Rachel (she/her) graduated from the University of Texas at Austin with a B.A. in Cultural Anthropology and a B.A. with honors in Rhetoric and Writing. She is currently a 2L in the Indian Legal Program at the Sandra Day O’Connor College of Law. As a citizen of The Cherokee Nation of Oklahoma, she is interested in issues surrounding Tribal Sovereignty. Additionally, she identifies as part of the LGBTIA+ community, and is eager to explore social justice issues specifically involving queer native persons. When Rachel is not in law school, you can usually find her exploring her local cultural centers, coffee shops, and restaurants. Occasionally, you may even find her singing Fleetwood Mac songs during Thursday karaoke nights.