Washington Bar reforms eliminate discriminatory mental health inquiries

Scale of Justice, law book and gavelLawyers seeking to practice in Washington State will no longer be singled out for seeking mental treatment under new revisions to the state bar application process, approved by the Washington State Supreme Court on June 10.

“These revisions are critical because they confront sanism and challenge how we perceive the character and fitness of attorneys who seek mental health treatment,” said Emily Cooper, staff attorney with Disability Rights Washington. “The revisions are deeply personal for me as I have routinely sought treatment and feel this insight has made me a better lawyer, not one whose character should be questioned.”

In addition to passing the bar examination, people seeking to become licensed to practice law in Washington State must fill out the state’s bar application that includes character and fitness questions.

As currently written, the Washington State Bar Association’s character and fitness questions force applicants to disclose if they have “experienced, been diagnosed with, or undergone treatment” for any mental health condition in the past five years, as well as speculate to the potential impact of their conditions on their ability to practice law, according to the DRW Questions of Discrimination Project Page. If applicants answer yes, they may be forced to turn over private treatment records.

A video from DRW, titled “Questions of Discrimination,” prompted the WSBA to convene a working group in July 2014, to look into ways to reform the process. DRW joined the working group and proposed revisions with support from the ACLU of Washington, the state Attorney General, the national American Bar Association, and law school deans and advocates from throughout the state.

The approved changes remove the inquiries into whether the applicant sought mental health treatment. Applicants will also no longer be forced to share protected health information.

Moreover, the states definition of “fitness” to practice law will no longer include “the absence of any current medical impairment.” Instead, the Admission to Practice rules make clear that any physical, sensory or mental disability cannot be a factor when making a character and fitness decision consistent with the Washington Law Against Discrimination.

The changes are largely modeled off similar reforms taken in Louisiana, pursuant to a settlement reached with the Department of Justice in 2014. Other states to recently eliminate mental related questions from their bar admission practices include Arizona, Illinois, Massachusetts, Pennsylvania, and Tennessee.

“By the winter of 2017, applicants will no longer have to choose between their privacy rights and ability to practice law,” Cooper said. “Washington State is now a leader in ensuring the diversity of the legal community reflects the clients that we serve.”

Disability Rights Washington, publisher of Rooted in Rights, is the protection and advocacy agency for Washington, and a member of the National Disability Rights Network.