The high court bid of a rejected applicant to the Illinois bar is raising fresh questions about whether members of state bar admissions boards are best suited to make decisions about candidates’ mental disabilities, especially amid calls across the legal industry to take mental health issues more seriously.
Thomas Skelton in June urged the U.S. Supreme Court to review his case so it can clarify whether the Americans with Disabilities Act is applicable to considerations of admission to state bars, and whether an applicant’s disability and any related “reasonable” accommodations should be factors to be considered in making such determinations, according to his petition for certiorari.
Skelton had requested conditional admission, a practice in which he’d be admitted to the bar, but his ongoing mental health treatment would be supervised by the Illinois Attorney Registration & Disciplinary Commission, the agency responsible for disciplining attorneys in Illinois, for an agreed upon period of time — typically two years, unless a longer period is ordered.
Trisha Rich, a Holland & Knight LLP attorney who represents Skelton, told Law360 that conditional admission would have been the “perfect remedy” in his situation, where her client has a track record of being under treatment.
“Since we filed this we’ve heard from a few people across the country who have had similar issues,” Rich said. “I do see this as a systemic problem.”
But some mental health advocates say that conditional admission isn’t necessarily a better alternative, and can relegate attorneys who are fully qualified to practice law despite a mental illness diagnosis to “second-class citizenship.”
Other attorneys say members of character and fitness committees have a duty to protect the public first and foremost, and that can mean making some tough calls about whether an applicant is truly ready to be a lawyer.
“We’re handling people’s lives. We can’t mess up,” said Carol Langford, a California attorney who works on admissions cases.
Bringing in Experts
Skelton graduated from the University of Illinois at Chicago John Marshall Law School and passed the Illinois bar in 2017, but was rejected by the Committee on Character and Fitness for the First Judicial District, which is appointed by the Illinois Supreme Court and reviews the “general fitness” and “moral character” of those seeking to practice law in the state, according to his petition to the Supreme Court.
During the course of the committee’s review of his application, he sent approximately 40 emails to the member of the committee assigned to review his case and to staff members contending that they lacked integrity, using “charged language, including political rhetoric and themes of persecution” in his writings, according to the petition.
Skelton was subsequently diagnosed with a delusional disorder, began taking medication to treat the diagnosis, and met with a psychiatrist and a psychotherapist, according to his petition. His boss at the City of Chicago Department of Law, where he worked as a Freedom of Information Act officer, also reported that he was adjusting well to the pressures of the job.
Yet an inquiry panel of the committee voted in March 2018 against recommending that Skelton be certified for admission, citing his mental health history, his “misconduct” in sending the emails, their own opinions of his “self-reported internal thoughts” and his ongoing symptoms, without attempting to offer accommodations for his disability, according to the petition.
But it’s not doctors or therapists or social workers who sit on that committee, Rich said, and the committee ignored Skelton’s doctors’ testimony that he has his illness under control.
“That testimony was unrebutted, and the committee disregarded it,” she said. “His medical providers show up and say the treatment is working, and we say, that’s still not good enough for us, that really undercuts our goal to tell people to get help.”
Licensing boards should involve mental health professionals or social workers in this process, Rich argued.
Robert Dinerstein, director of the Disability Rights Law Clinic at American University Washington College of Law, told Law360 he shares Rich’s concerns that members of character and fitness committees don’t necessarily have the skills required to make conclusions about an applicant’s mental health.
“We can all play armchair psychiatrist, but we’re not all trained to make those kinds of distinctions,” Dinerstein said. “This is an element of character and fitness that people doing the assessment don’t really understand unless you’ve got the expertise … it’s not that they’re bad people, but they’re part of a society that is still figuring out what it means to have a mental illness, and how to treat it.”
The ADA is premised on individuals and looking at their situations in an individual way, Dinerstein said. Not everyone with the same diagnosis has the same experience, and boards making decisions about who can practice law have to bear that in mind, he said.
“For one person, [a mental illness] may be debilitating, for another who may have the same diagnosis, it isn’t that limiting for that person,” Dinerstein said.
Protecting the Public
Langford told Law360 that character and fitness committees have to focus on protecting an aspiring lawyer’s potential clients above all else.
There’s simply too much at stake, she said, and the costs can be enormous if a mental disability isn’t controlled — clients could go to prison, get deported or lose custody of their kids, to name a few examples, she said.
“It is sad, because there are very bright people who have these issues. And you want to help them, but at the same time, the lodestar has to be the public interest,” Langford said. “To me everything has to be looked at from a public protection standard. You have to first step back and do that. What’s done for the potential lawyers comes second.”
“How long ago” is the first question Langford said she asks aspiring lawyers who come to her with admissions cases — and in Skelton’s case, he was having symptoms of his mental illness at the very time he was applying to the state bar, she said.
“It’s too close in time to the application,” she said. “People forget the burden is on the applicant. You’re banging at their door.”
Susan Stefan, an expert in mental disability law, told Law360 that in an unusual way, the board’s rejection in Skelton’s case represents a kind of step forward because they’re pointing to behavior, including the emails he sent to the committee, and not just his diagnosis.
“We have fought for decades the exclusion of people from licensure solely on the basis of diagnoses and receiving treatment,” Stefan said. “Our argument is that you need to look at people’s behavior, not their diagnosis or treatment.”
Stefan said she was “torn” about Skelton’s case and questioned if it was the best vehicle for Supreme Court review, or if he was the best candidate for conditional admission, a practice she says is overused and compares to “second-class citizenship.”
“A better thing for his life would be to work for a year and go back and ask for admission,” she said.
Rich knows that that’s what many would want her client to do — to put his head down, stay out of trouble and try again in a few years. But while the Illinois board concluded Skelton wasn’t ready to be an attorney, it was a conclusion “that was not borne out by the evidence,” she said.
“There wasn’t a single witness on the other side,” Rich said. “Character and fitness are volunteer lawyers doing this in their spare time. I know it’s a tough job. But it’s a really important job.”
Deterred From Seeking Help
Skelton’s petition to the high court referenced a 2017 report from the American Bar Association National Task Force on Lawyer Well-Being, addressing lawyer well-being, mental illness and addiction in the legal profession. Its findings emphasize that lawyers and law students often avoid seeking assistance for mental health or addiction issues because of fear that seeking help will impact their licensure, Skelton said.
“The majority’s decision contributes to the stigma that results in lawyers and law students avoiding mental health treatment by grounding its finding of unfitness in Mr. Skelton’s mental health status,” the petition said.
Universities and law schools some time ago had to recognize if they were going to accept more students with disabilities, then they would have an obligation to help them thrive and succeed, Dinerstein said. But it’s been more of a mixed bag at bar admissions, he said.
“The last thing I think you want is for people to not seek help that they need,” he said.
Dinerstein said he’s seen more willingness to talk about mental illness and disability in the last ten years, but stigma remains. And while there has been more focus on a bar applicant’s conduct rather than diagnostic category, “it’s been a slower development than it should have been.”
Still, some states have moved to drop bar applicant questions about mental health and treatment altogether.
In February, New York’s chief judge said the question on the bar admission form has deterred law students from seeking treatment because they fear denials and other repercussions. In June, the New Hampshire Supreme Court Committee on Character and Fitness announced it would no longer ask applicants about their mental health history or whether they have received any related treatments or diagnoses, citing the same reason.
A Kentucky federal judge in August compared the state’s bar admission system to a “cartel,” predicting that a law student will die one day over not obtaining mental health care out of fear state officials would use the treatment against the student and saying the state’s system punishes people who get help.
And the Florida Supreme Court in September changed state bar rules to no longer treat members with a history of drug, alcohol or psychological issues as a separate class of “conditionally admitted members.”
Rich told Law360 she felt it was vitally important to bring Skelton’s case, saying the legal industry can’t “feign surprise” about experiences like his anymore.
“The profession cannot talk out of both sides of its mouth on this any longer,” Rich said. “Either this is something we care deeply about and are committed to working on and fixing, or it’s not.”
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–Additional reporting by Kevin Penton, Andrew Strickler and Nathan Hale. Editing by Katherine Rautenberg.