Anxiety or Rule Against Perpetuities?: Mental Health Inquiries in Bar Admission Post-Louisiana

Abstract

Despite years of litigation on whether mental health inquiries in bar admission are discriminatory and violate the ADA, courts and state bars still disagree over them. A recent settlement between the DOJ and the Louisiana Supreme Court removing these inquiries from Louisiana’s bar application has some proclaiming mental health questions are now definitively illegal. Since Louisiana had copied a standard form used by twenty-five states, the agreement could have had far-reaching consequences.However, the DOJ’s findings that invalidated mental health inquiries ignored twenty years of established federal and state case law supporting narrowly tailored questions into serious mental illnesses. Moreover, the settlement lacks legal precedential effect, and in practical terms will not influence other states to settle given the weaknesses of the DOJ’s ADA enforcement scheme in the bar admittance context. Thus, in the likely case this issue is litigated again, the settlement is unlikely to have much influence.While the DOJ’s arguments were weak, changes to mental health questioning are still necessary as a matter of policy. In contrast to scholarship calling for a unilateral ban on such inquiries, I advocate for questions into mental illnesses that may excuse prior misconduct or current ailments affecting the ability to practice law. Also, bars must clarify how they use such mental health information, particularly that treatment will only serve as a mitigating factor to excuse past misbehavior or present illnesses. Finally, although narrow inquiries into serious mental diseases are permissible, they should be removed to encourage treatment for all disorders.