A University of Richmond T.C. Williams School of Law student is leading the effort to write a letter to the Virginia State Bar asking for the termination of the requirement that aspiring lawyers disclose their entire mental health history on Virginia State Bar applications.

Gray O’Dwyer, a third-year law student and leader of the initiative, knew a fellow law student who was dealing with a family emergency and needed someone to talk to. The student was quickly informed that if she sought professional help, it would actively complicate the character and fitness portion of her bar application, O’Dwyer said.

The character and fitness section of the Virginia Board of Bar Examiners’ rules currently states that an applicant has to disclose only what might be pertinent to his or her practice, O’Dwyer said. The application itself, however, asks for very specific information, and any omission is considered a “willful omission.”

“You are encouraged to give them all the information because willful omissions can affect your integrity as a lawyer,” O’Dwyer said. “They say that what you write about your mental health will never be the reason you are denied, but there is no way to know that.”

In 1994, policy was set to limit, but not totally eliminate, mental health inquiries for bar admission. Advocates pushed for more, and an updated policy in 2015 urged screening questions to focus on addressing conduct rather than condition, according to an article by the American Bar Association.

Recent research shows the severity of mental health and substance abuse issues in the legal profession. Nearly half of all lawyers have had depression at some point during their career, according to a recent law.com article.

In January 2018, the ABA issued Resolution 105, urging state bar associations to stop the requirement to disclose mental health information on bar applications. This was a direct response to a comprehensive report revealing that the current policy was preventing law students from seeking professional mental health assistance.

Of the 42 percent of respondents who revealed mental health struggles, only about half of them had received counseling. The respondents reported that their reluctance was a result of concern over “bar admission, academic standing, and job prospects.”

Although 19 states have since changed their policies in response to Resolution 105, 31 states, including Virginia, are still asking questions.

One of the primary issues that O’Dwyer sees with the current Virginia application is that none of the application readers are medical professionals, she said.

“The main problem is that the people who are reading the applications are the Virginia Board of Bar examiners, and not one of them is a medical professional,” O’Dwyer said. “People who are not medical professionals are making medical decisions about people’s careers.”

At UR, law students are unable to seek counseling at an organization such as Counseling and Psychological Services without having to report it on the application. If they do choose to seek counseling, they must list the name and address of all healthcare professionals involved, according to the character and fitness questionnaire of the July 2017 Virginia bar exam. The professional is then required to complete the character and fitness healthcare form.

Healthcare professionals are required to fill out a form revealing an applicant’s personal treatment programs and mental health diagnoses to be included in their Virginia State Bar application. Image courtesy of the July 2017 Virginia Bar exam.

Peter LeViness, director of CAPS and a licensed psychologist, said law students had been bringing him the required forms for the 16 years that he has worked at UR.

“They don’t seem to be asking for physical health conditions, and that seems like a double standard to me,” LeViness said. “It says that it’s a healthcare questionnaire, yet the only questions I see are asking about mental health and substance abuse.”

Applicants want to be forthcoming because they do not want to be accused of lying on an application that determines their future career, LeViness said, a fear that is not unreasonable based on the character and fitness instructions listed on the Virginia Board of Bar Examiners website.

“If you have any doubts about whether any matter should be reported on the Questionnaire or any subsequent update, report it. Any omission, untruthful answer, or incomplete answer may result in your being denied the privilege of taking the Virginia Bar Examination and practicing law in Virginia,” the instruction page reads.

People who are proactive are put in an especially difficult position because they worry that if they seek help at any point of their lives, they risk the chance of never becoming a lawyer in Virginia, Leviness said.

“I am sure this is not what the bar intends, but it is having an unfortunate consequence of people not getting services that they could really use,” LeViness said.

O’Dwyer is leading the joint effort to submit the letter. Participating organizations include the Black Law Students Association, the Public Policy and the Common Good Organization, the American Bar Association Student Division and the Virginia State Bar Association Law School Council.

The student body and school administration have been overwhelmingly supportive in this process, O’Dwyer said. Wendy Collins Perdue, dean of the law school, was complimentary of O’Dwyer’s efforts.

“Issues surrounding mental health are of utmost importance in legal education and in the legal profession,” Perdue said in an email interview. “I’m proud to see our students are taking such an active interest in this issue.”

The letter is addressed to Doris Henderson Causey, president of the Virginia State Bar. Causey was named as the speaker for the T.C. Williams School of Law 2018 commencement ceremony.

Copies of the letter will be sent later this week to all members of the Bar Executive Council, as well as to the board of governors at the Virginia Bar Association.

O’Dwyer reached out to other law schools in Virginia and asked whether they were interested in participating. At the time of publication, Washington and Lee University and the University of Virginia have committed and will be sending their own letters, she said. 

Contact contributor Kim Smith at kim.smith1@richmond.edu.

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