Facing the Klieg Lights: Understanding the "Good Moral Character"

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CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 292 AKRON LAW REVIEW [40:255 law school, she might raise character issues while being priced out of insurance coverage. 380 4. Defending Questions on Mental Health Bars defend mental health questions as necessary to protect the public “from mentally troubled lawyers” who could commit legal malpractice. 381 Lawyers are particularly susceptible to stress because of working long hours 382 and a perfectionist work ethic. 383 The bar should combat unintended deterrent effects on mental health treatment, given the otherwise wide acceptance of such treatment for attorneys. 384 Critics also claim that scrutinizing the mental health of otherwise suitable candidates is unwarranted because those succeeding in law school despite a mental health disability have already proven that they are “able, intelligent, and most important, highly motivated.” 385 5. Limits Under the ADA Many applicants find the mental health inquiry “intrusive and discriminatory,” particularly after delays for applicants admitting mental health treatment. 386 After the Americans with Disabilities Act (“ADA”), applicants may challenge the bar’s questions, which “must comply with the ADA under Titles II and III.” 387 Challenges under the ADA to the bar’s mental health questions for stigmatizing applicants by focusing on mental health, rather than past behavior, have been partially successful. 388 In the pre-ADA case Florida Bd. of Bar Exam’rs Re: Applicant, 389 the court “determined that the public nature of legal practice requires deference to state bar examiners’ ‘probing’ questions.” 390 But in Ellen S. v. Fla. Bd. of Bar Exam’rs, 391 the federal 380. Whitney Morrill, Pricey Therapy: The Downside of Making Postpartum Depression Sexy, SLATE, Aug. 30, 2005, http://www.slate.com/id/2125233/. 381. Shapiro, supra note 366, at 940 (citing Herr, supra note 20, at 638). 382. Voss, supra note 369. 383. Elizabeth Kelley, Practice Points, 29-DEC CHAMPION 59 (2005). 384. The bars do encourage treatment for admitted lawyers. See Allison Wielobob, Bar Application Mental Health Inquiries: Unwise And Unlawful, 24 WTR HUM. RTS. 12, 14 (1997). 385. Shapiro, supra note 366, at 940 n.178 (quoting Sande L. Buhai, Practice Makes Perfect: Reasonable Accommodation of Law Students with Disabilities in Clinical Placements, 36 SAN DIEGO L. REV. 137, 180 (1999)). 386. Id. at 939 (citing Coleman & Shellow, supra note 371, at 147-48). 387. Id. (citing Herr, supra note 20, at 635-36). 388. Id. (citing Bauer, supra note 367, at 98). 389. 443 So.2d 71, 74 (Fla. 1983). 390. Id. (citing In re Applicant, 443 So.2d at 74).
CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 2007] THE “GOOD MORAL CHARACTER” EXAMINATION 293 district court recognized that the court in the pre-ADA Bar Examiners only considered whether the application question “violated the Florida and United States Constitutions,” not whether it violated the ADA. 392 The court in Ellen S. held that “the Board is not permitted to conduct such investigation in violation of federal law,” rejecting the bar’s argument that attorneys were not covered by the ADA. 393 The court added that questions on mental disabilities “and the subsequent inquiries discriminate against Plaintiffs by subjecting them to additional burdens based on their disability.” 394 Besides the court in Ellen S., “[v]irtually all of the courts that have considered the ADA’s application to mental health inquiries in the bar admissions process have determined that the ADA prohibits at least some disability-related inquiries.” 395 Most states have removed the broad question, whether “an applicant has ever received help or treatment for some type of emotional problem.” 396 Bars still delve into mental health, however, in narrower terms. 397 Some critics warn that even specific questioning, such as whether a person has schizophrenia, remains troubling because the answer “provides little insight into an individual’s past behavior or potential ability to practice law.” 398 How probing can mental health questions be given the answers’ value? Professor Herr explained: The survey data and direction of case law in this area suggest that bar examiners will increasingly phase out their mental health inquiries. These inquiries are simply too difficult to defend in light of the speculative and doubtful gains they provide. If states like Hawaii, Illinois, and Pennsylvania have decided to discard their mental health 391. 859 F.Supp. 1489 (S.D.Fla. 1994). 392. Ellen S., 859 F.Supp. at 1492. 393. Id. at 1492. 394. Id. at 1493-94. 395. Mark Murphy and Jennifer Mathis, NAPAS FACT SHEET, Consideration of Mental Health in the Bar Admissions Process, 04/02, available at http://www.pai-ca.org/Employee/ AntidiscriminationWG/PublicEnt/MH&BarAdmission.htm [January 7, 2006] (citing Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. 430, 441-46 (E.D.Va. 1995); McCready v. Ill. Bd. of Admissions to the Bar, 1995 WL 29609 at *5-7 (N.D.Ill. Jan. 24,1995); Applicants v. Tex. State Bd. of Law Exam’rs, 1994 WL 923404 at *7-8 (W.D.Tex. Oct. 11, 1994); In re Petition and Questionnaire for Admission to the R.I. Bar, 683 A.2d 1333, 1335-36 (R.I. 1996); In re Underwood and Plano, 1993 WL 649283 (Me. Dec. 7, 1993)); cf. Doe v. Judicial Nominating Comm’n, 906 F.Supp. 1534, 1540- 42 (S.D.Fla. 1995.); Medical Soc’y of N.J. v. Jacobs, 1993 WL 413016 at * 5-8 (D.N.J. Oct. 5, 1993); see also Wielobob, supra note 384, at 13 (“The Americans with Disabilities Act (ADA) provides a convincing basis for challenging mental fitness questions on bar applications.”). 396. Shapiro, supra note 366, at 939 (citing Bauer, supra note 367, at 96-97). 397. Id. 398. Id. (citing Coleman & Shellow, supra note 371, at 148-49).
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Facing the Klieg Lights: Understanding the "Good Moral Character"

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