Starr Initiative on Character and Fitness

The Starr Initiative on Character and Fitness continues the Dave Nee Foundation’s (DNF) mission of reducing the stigma around disclosing one’s mental health challenges, creating pathways for treatment and recovery, and educating the public about mental health and suicide prevention.

The initiative is named in memory of Michael Starr, an attorney who died by suicide. As Mike was an attorney with Akin Gump in their Washington, DC office at the time of his death, Akin Gump has dedicated pro bono support as a thought partner, donor and researcher to this project.

The Dave Nee Foundation’s law student surveys have found that 64% of law students will not seek professional help for any mental health challenges because they fear the professional consequences.


 

The Bazelon Center for Mental Health Law with the U. S. Department of Justice have been at the forefront of actions to address the character and fitness discriminatory questions. State Protection and Advocacy nonprofits, have also been actively involved in bringing this issue to light. We are grateful to Disability Rights New York for their attention to this issue. Our advisory board member, Theresa Esquerra, was a 2009 Scattergood Fellow with Active Minds. Her research at that time focused on Character and Fitness. Please follow this link to read her final research paper. Finally, the Scattergood Foundation’s Anti-Stigma Fellow, Tim Clement has been instrumental in providing his guidance on developing the contact strategy approach to eliminate stigma.

 


 

Character and Fitness: Brief History and Context

In 1994, the American Bar Association (ABA), the accrediting body for law schools in the U.S., adopted a resolution to encourage state and territorial bar examiners to revise their character and fitness standards in the area of mental health. Specifically, the resolution called upon states and territories to “tailor questions concerning mental health and treatment narrowly in order to elicit information about current fitness to practice law, and take steps to ensure that their processes do not discourage those who would benefit from seeking professional assistance with personal problems and issues of mental health from doing so.” (1)

Since 1994, there has been uneven progress among bar examiners to tailor questions as suggested by the ABA. Indeed, anecdotal evidence suggests that the character and fitness standards continue to discourage law students from sharing their histories and more importantly seeking and obtaining mental health care.

Character and Fitness tests are the result of a need to protect the credibility of the profession while ensuring some measure of protection for clients and the public from any misdeeds that might be attributed to an attorney’s mental health status. (2) While these dual needs of ensuring credibility and protecting clients and the public might be grounded in good intentions, the unintended consequences have a chilling effect for those law students or attorneys with mental health issues.

Gaining acceptance into and maintaining one’s status in the Bar, which determines one’s ability to maintain a livelihood and pursue a profession for which they have demonstrated talent and expertise, never mind a passion for, weighs heavily upon students and attorneys should they find themselves struggling with depression or another mental illness.

In 2014, the U.S. Department of Justice (DOJ), prompted by a complaint filed by the Bazelon Center for Mental Health Law (Bazelon) on behalf of two Louisiana attorneys, issued a “letter.” According to a press release from the Bazelon Center for Mental Health Law, the DOJ letter, noted “Louisiana’s bar admissions process violates Title II of the Americans with Disabilities Act by needlessly screening out applicants with disabilities. The letter states that questions about an applicant’s mental health diagnosis or treatment, unlike questions about conduct and performance, do not accurately gauge fitness to practice law. Moreover, the letter finds the conditions the bar imposed were not tailored to perceived risks.” The DOJ’s Civil Rights Division issued a similar letter in January 2014 in response to an inquiry from the Vermont Human Rights Commission. (3)

Subsequent to the DOJ issuing these letters, the National Conference of Bar Examiners (NCBE), which conducts character and fitness investigations on applicants seeking either admission to the bar or a limited license to practice law, and which devises model language available for adoption by state examiners made some changes to its character and fitness questions. The change was likely in response to the investigations by DOJ and Bazelon; and while the intention may have been to avoid violations of Title II of the Americans with Disabilities Act (ADA), Bazelon issued a public alert identifying the shortcomings of the changes. (4)

In August 2014, the DOJ announced as a follow up to its earlier letter to Louisiana that it had entered into a settlement agreement with the Louisiana Supreme Court. For the DOJ, the agreement “ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the Americans with Disabilities Act (ADA).” (5)

The settlement agreement is likely to put some states, with practices similar to Louisiana “on notice.” Although progress made by individual state bar examiners remains mixed and uneven.

If you are interested in learning more about the efforts underway by the Dave Nee Foundation with the Starr Initiative, please email Katherine Bender at Kbender@daveneefoundation.org


We view the character and fitness requirements as helping to perpetuate stigma, while creating unnecessary barriers for law students who will chose to forego asking for help because they fear professional consequences. While we are still in the early stages of implementing our plan of action, the Dave Nee Foundation is hopeful that through the Starr Initiative, we will eliminate the barriers to help seeking for law students.

 


Sources:

(1) http://www.americanbar.org/content/dam/aba/directories/policy/1994_am_110.authcheckdam.pdf

(2) For a comprehensive review of the context for Character and Fitness rules, see Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and the Individual, by Laura Rothstein, published in University of Pittsburgh Law Review, http://lawreview.law.pitt.edu/ojs/index.php/lawreview/article/viewFile/106/106

(3) http://www.bazelon.org/News-Publications/Press-Releases/2-10-14-LA-State-Bar.aspx

(4) http://www.bazelon.org/What-You-Can-Do/Take-Action/Alerts/Alerts-Archive/4-15-14-NCBE-Mental-Health-Questions-Alert.aspx

(5) http://www.bazelon.org/News-Publications/Press-Releases/8-15-14-LA-Bar-Applicant-Complaints-Settlement.aspx. To read complete agreement, please go here