Exploring mental health of law students and admission to practice

In this guest blog, Keith Rizzardi explores his recent paper exploring the handling of the mental health of law students applying for bar admission…

Like the Wizard of Oz, the Florida Board of Bar Examiners wields great power, but it is time to expose and rethink the abuses of that power when it is directed at modern law students and their mental health. To some extent, it is impossible to peer behind the Florida curtain, because the Board is protected by a sweepingly broad rule of confidentiality, and even the most elementary of information about meeting agendas remains hidden from public scrutiny.  Nevertheless, based upon a review of the existing rules, evaluation of caselaw, survey data, and a comparison with other states, there are significant problems with Florida’s bar admissions process, and its use of mental health criteria in character and fitness investigations.

The Board needs the scarecrow’s wisdom.  Florida’s approach to mental health investigations deters mental health treatment, stigmatizes people who apply for admission to the Florida Bar, and distinguishes between physical and mental disabilities by asking about the latter but not the former.

Florida’s approach, therefore, presents potential concerns based on the Americans with Disabilities Act – a problem being discussed all over the nation.

But the simple facts and black letter law reveal another problem unique to Florida.  Specifically, Rule 5-15 of the Rules of the Supreme Court Relating to Admissions to the Bar, states that “Conditional admission is limited to persons who will live in Florida, who will be engaged in the practice of law primarily in Florida, and who will be monitored in Florida during the entire period of conditional admission.”  This rule stands in sharp contradiction with a wide range of legal principles, including the privileges and immunities clause of the U.S. Constitution, federal cases disallowing residency considerations in bar admissions, and even Florida’s own constitutional jurisprudence regarding the right to travel. It simply cannot withstand logical scrutiny.

The Board needs the tin man’s heart, too.  According to actual survey data, at least some Florida law students admitted that they chose not to obtain mental health treatment because of the Florida bar admissions rules.  One anonymous student heartbreakingly recounted how, after his father died of cancer, and after Hurricane Ike destroyed his family home in Galveston, Texas, he suffered from insomnia, anxiety, grief, loss, and stress.  There may be no place like home, but that student was prohibited from finding a new one.  The Florida Board of Bar Admissions offered him conditional admission, with significant consequences for the student. “I have lost amazing job opportunities in other States, while being forced to remain in a job market that has none (the license hasn’t helped me much), all for seeking grief counselling at one point of my life.”  Compounding the job-related opportunity losses, the conditional admissions rules and their implementation also result in thousands of dollars in direct expenses for students who must pay for their own monitoring.

The Board needs a lion’s courage and should explores alternative paths.  Florida can rethink how it protects the public and follow the yellow brick roads already laid by other large states.  For example, bar admissions rules in California and New York are wholly silent on mental health issues, leaving the matter to be explained in supplemental policy documents, and often in favor of the applicant.  A second group of states, including Georgia, Michigan, Minnesota, North Carolina, Ohio, Texas and Virginia, offers an even-handed approach, encouraging responsible mental health treatment while ensuring personal accountability for failing to obtain treatment when needed. Finally, Illinois, New Jersey, Massachusetts and Pennsylvania largely eliminate consideration of mental health disorders altogether.

Ultimately, Florida’s bar admissions rules are an exercise in irony.  The effort to protect the public from unhealthy lawyers has created a process that causes aspiring lawyers to make unhealthy choices. Conditionally admitted lawyers, sworn to uphold the constitutional rights of others, suffer the undignified denial of their own constitutional rights of interstate travel and residency.  Reasonable barriers to entry into the legal profession are appropriate, barriers to treatment are not.

The complete text of this peer reviewed article can be found in “Victims of Disorganized Thinking: When Law Students with Mental Health Issues Confront Florida’s Unconstitutional Inquisition,” 4 Mental Health Law & Pol’y Journal 88 (2015)

Keith W. Rizzardi is an Assistant Professor in Law at St. Thomas University School of Law.  You can access his other papers at http://ssrn.com/author=1706197