Mental health screening as part of the attorney licensing process has been a controversial practice, with its critics arguing that it discourages law students and prospective attorneys from seeking help, stigmatizes mental health conditions, and lacks empirical evidence supporting its utility in predicting future misconduct. While state bar associations have gradually moved away from broad inquiries into applicants’ mental health, most continue to ask questions related to mental health history, substance abuse, or behavioral concerns under the guise of “character and fitness” evaluations.
This article explores the evolution of mental health screening in lawyer licensing, the criticisms it faces, and the role Attorney Therapists —licensed psychotherapists and psychologists who also possess law degrees and legal practice experience—should play in shaping future bar admission policies. Attorney Therapists are uniquely positioned to guide state bar associations in reforming mental health evaluations, ensuring they serve both public protection and applicant well-being.
The Evolution of Mental Health Screening in Attorney Licensing
Historically, state bar associations have included mental health-related questions in their moral character evaluations, often asking applicants whether they have been diagnosed with or treated for mental, emotional, or nervous disorders. The rationale for these inquiries has been the assumption that attorneys must be emotionally and psychologically fit to handle the pressures of legal practice. Research suggests, however, that such questions may deter law students from seeking necessary mental health treatment out of fear that disclosure could lead to additional scrutiny or even denial of bar admission.
Over the past two decades, many states have narrowed their questions to focus on conduct rather than mental health history. For example, the National Conference of Bar Examiners (NCBE) updated its model character and fitness questionnaire to inquire about behaviors rather than diagnoses, asking applicants if they have exhibited any conduct that could impair their ability to practice law. Despite this shift, many states still include vague and potentially intrusive mental health-related questions, leading to continued criticism and legal challenges.
The Case Against Mental Health Screening in Attorney Licensing
Mental health screening in the bar admissions process has been criticized on multiple fronts, including legal, ethical, empirical, and harm-based arguments.
Legal Arguments: Violations of the ADA
Critics argue that broad inquiries into mental health violate the Americans with Disabilities Act (ADA) by discriminating against applicants based on disability. Courts have ruled against bar examiners who frame mental health as a barrier to competence without demonstrating a direct connection between an applicant’s condition and their ability to practice law.
Ethical Arguments: Stigmatization and Deterrence
The legal profession faces a well-documented mental health crisis, with high rates of anxiety, depression, and substance abuse among lawyers and law students. Bar application questions about mental health history may perpetuate stigma and discourage help-seeking behavior, thereby exacerbating the problem rather than addressing it.
Empirical Arguments: Lack of Predictive Value
Research indicates that mental health diagnoses or prior treatment do not reliably predict future professional misconduct. Studies show that attorneys with mental health conditions do not commit ethical violations at a higher rate than their peers. Moreover, substance use disorders—often conflated with mental health concerns—are more strongly correlated with professional misconduct, yet bar associations continue to focus disproportionately on mental health rather than behavioral indicators of risk.
Harm-Based Arguments: Chilling Effects on Treatment-Seeking
Numerous studies have demonstrated that law students avoid seeking treatment due to fears about disclosure on bar applications. A 2014 study found that 45% of law students cited concerns about bar admission as a primary reason for not seeking mental health care. A 2021 follow-up survey confirmed that these fears persist despite reforms in some states.
The Potential Role of Attorney Therapists in Reforming Mental Health Screening
Given their dual expertise in law and mental health, Attorney Therapists should play a leading role in shaping bar admission policies that balance public protection with applicant well-being. Their involvement is particularly critical in three key areas:
Reforming Character and Fitness Evaluations
Attorney Therapists can work with state bar associations to revise character and fitness evaluations so that they focus on conduct rather than mental health history. Instead of asking whether an applicant has ever been treated for a mental health condition, the focus should be on whether the applicant has demonstrated behavior that raises concerns about their ability to practice law competently and ethically.
Providing Expert Assessments in Character and Fitness Proceedings
When bar examiners do require further evaluation of an applicant’s mental health history, Attorney Therapists should serve as independent experts in these proceedings. Unlike general mental health professionals, Attorney Therapists understand the unique demands of legal practice and can assess whether an applicant’s mental health condition genuinely impacts their professional competence.
Developing Attorney Wellness Programs
State bars should integrate attorney wellness programs that encourage proactive mental health care without penalizing applicants for seeking treatment. Attorney-therapists can design and lead confidential support programs, offering mental health resources tailored to the needs of law students and early-career attorneys.
Policy Recommendations
To ensure a fair and effective approach to mental health screening in attorney licensing, state bar associations should adopt the following reforms:
Eliminate Broad Mental Health Questions
Bar applications should not ask about an applicant’s history of mental health diagnoses or treatment. Instead, questions should focus on specific conduct that directly impacts professional competence.
Require Evidence-Based Justifications for Mental Health Inquiries
If a state chooses to inquire about an applicant’s mental health, it should be required to demonstrate—through empirical evidence—that such inquiries are necessary to protect the public and the profession.
Engage Attorney-Therapists in Fitness Evaluations
Qualified Attorney Therapists should be integrated into the character and fitness process as evaluators, expert witnesses, and policymakers to ensure that mental health considerations are assessed fairly.
Encourage Early Mental Health Intervention Without Penalization
State bars should implement policies that encourage law students and attorneys to seek mental health care proactively. This could include conditional admissions policies that allow applicants to practice under supervision while receiving necessary support.
Conclusion
Mental health screening in attorney licensing remains a contentious issue, with ongoing debates about its necessity, effectiveness, and ethical implications. While reforms have narrowed the scope of mental health inquiries, many state bars still include questions that deter law students from seeking care. Attorney Therapists — professionals uniquely positioned at the intersection of law and mental health — should be at the forefront of efforts to reform character and fitness evaluations. By leveraging their expertise, state bars can create a licensing process that prioritizes both attorney wellness and public protection, ensuring that mental health challenges are addressed with fairness, empathy, and evidence-based policies.
