The California Bar Has Apparently Already Stopped Asking About Mental Health on the Moral Character Application—They Just Haven’t Spread the Word

(This post has been updated–scroll to the bottom).

After writing my prior post, I’ve been engaged in fruitful discussions both in comments and via email about the issue of law student mental health.  In one of these conversations, someone suggested going to the

Bazelon Center website, telling me that they have a campaign about getting rid of mental health questions on moral character applications.  When I clicked through, I saw the following statement (without attribution) that “In California, the State Bar has removed its question asking about mental health diagnosis and treatment.”  For the past year or so, I’ve been talking to law professors, lawyers, disability rights/mental health advocates, law school administrators, and health care professionals throughout the state, and either people never knew there was a mental health question or knew about it, were upset by it, and didn’t know that it had been removed.  So it was news to me, and my reactions, in order, were:

  1. Yay!  (For reasons noted here.)
  2. Whoops!
  3. Why on earth is this information so hard to find/not more widely known?

The reason I care about this issue is to remove a barrier to law students in crisis getting help.  A recent national survey found that “at many law schools, students believe that seeking help for alcohol/drug issues or mental health problems will result in negative consequences for bar admission.”  Around half of students say they don’t want to talk to appropriate parties—including deans of students—for fear that it will hurt their chances to be admitted to the bar.  I want this information readily accessible, given that such a large number of students say they’ll avoid talking to me or other administrators.

But this information isn’t, I think, accessible enough to the average student (though it probably should have been to me).

When I wrote the prior post (which I have now corrected) I searched the California Bar website, only to find, among several waiver forms, links to an online version of the application that is accessible to applicants only.  I found a copy of what I now know is an outdated application by running a search for “California bar ‘moral character’ application” on Google (the link is to a time-limited version of my search to avoid inadvertently strengthening the results).  This search returns a moral character application hosted at the California Bar website, so I relied on it, having done some other keyword searches and news searches to confirm this was an issue.  None of the academic literature or news sources I surveyed mentioned anything about California removing its question.  No excuse for me, but, again, not a terrible proxy for the average student.

Even trying to confirm what I learned on the Bazelon site has been difficult.  As I already mentioned, none of the people I’ve been consulting with knew about this.  I called the San Francisco office of the California bar and was told that, unless I was applying for the bar (I’m already a member) that I can’t get access to the moral character questions.  The person I spoke to “believed” that the mental health questions had been removed but wasn’t sure (she said she’d check on it and get back to me).  She did tell me, however, that the questions on the application for an extension to the moral character determination are “very similar” to the questions on the online form.

So there is no public way to access the questions, unless you happen to look at the document entitled “Instructions for Application for Extension of Determination of Moral Character”—though, again, I can’t necessarily confirm that these are the exact same questions as those on the online version.  This extension actually contains the moral character application itself, not just instructions and not just the application for an extension.  Scrolling through 25 pages, you arrive at Question 12.4, which now asks “Is there any issue that would currently interfere with your ability to practice law in accordance with the duties and ethical obligations of an attorney?” but does not ask about mental health in particular, leaving students, I think, a reason to answer “No” if they are currently getting treatment.  Question 12.5 asks about incompetence and conservatorship, and Question 14.1 asks about addiction but includes diagnoses in addition to treatment (“Have you been diagnosed or treated for a chemical dependency that would currently interfere with your ability to practice law?”).  All of this seems reasonable.

So mea culpa, good news, and spread the word.  Students in California have no reason not to seek help if they are depressed.  All we need to do now is spread the word.  (There are still issues to be worked out in other states’ moral character applications, as well as trying to figure out why law students are so depressed in the first place.)  Fortunately, for my purposes—removing at least one barrier to student mental health—writing this blog post (and correcting my other one) is both the means and the end.  Changing the policy was the first step—but unless and until students know it has changed, it won’t make any difference.

UPDATE:

I just got my call returned from the California bar.  Initially, the person I spoke to said “the form of the question has changed,” that mental health was still an issue, and “Overdisclosure will clear the file more quickly.”  But when I asked if this meant depressed students should not get treatment, she told me that “Of course they can get treatment” and “They don’t have to disclose depression.”  She said the concerns were about those gravely disabled enough to be in a conservatorship, or who pose a danger to the public.  Someone who is on an SSRI “doesn’t need to disclose that.”

When I asked why the moral character application questions weren’t disclosed to the public so that students could know what was and what wasn’t at issue, she told me that there was some concern that people could use that knowledge to get around compliance.  Having the questions revealed only to those who are applying got “more honest” answers.

Ultimately, she said, mental health issues can still come up, but usually because someone has done something very unusual on their application or a referee has talked about a mental health issue.  She estimated that this was a very small number (around one percent).  She concluded by saying “Someone should not avoid treatment—you won’t be denied for that.”

I’m already hearing from people that this is (a) news to them and (b) very welcome indeed.

[Cross-posted at The Reality-Based Community]

David Ball

David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.