Doorley, Tracy Kelly

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Roger Williams University Law ReviewVolume 2 | Issue 2 Article 7Spring 19971996 Survey of Rhode Island Law: Cases:Attorney-ClientTracy Kelly DoorleyRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Survey of Rhode Island Law is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion inRoger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationDoorley, Tracy Kelly (1997) "1996 Survey of Rhode Island Law: Cases: Attorney-Client," Roger Williams University Law Review: Vol.2: Iss. 2, Article 7.Available at: http://docs.rwu.edu/rwu_LR/vol2/iss2/7Attorney-Client. In re Petition and Questionnaire for Admissionto the Rhode Island Bar, 683 A.2d 1333 (R.I. 1996). Questions re-garding an applicant's substance abuse and mental health historyviolate the Americans with Disabilities Act (ADA).In In re Petition and Questionnaire for Admission to the RhodeIsland Bar,I the Rhode Island Supreme Court held that two ques-tions on the Rhode Island bar application, which inquired aboutthe applicant's substance abuse and mental health history, vio-lated the ADA. 2 According to the court, the questions must bemodified to ask only whether the applicant is currently sufferingfrom a mental disorder or currently using illegal drugs.3FACTs AND TRAVELIn 1993, the American Civil Liberties Union (ACLU), on behalfof an unnamed applicant, challenged the validity of four questionson the application for admission to the Rhode Island bar, contend-ing that the inquiries violated both the ADA and an applicant'sprivacy rights.4 The Committee on Character and Fitness of theBoard of Bar Examiners (Committee) petitioned the Rhode IslandSupreme Court5 concerning what action it should take regardingthe challenged questions.6 The court deferred the matter pendinga "fact-finding and revision process" by the Committee.7 After therevision process and a face to face meeting between the ACLU andthe Committee, two of the revised questions remained unaccept-able to the ACLU.8 In 1995, the supreme court appointed a special1. 683 A.2d 1333 (I. 1996).2. Id.3. Id. at 1337.4. Id at 1333.5. The Rhode Island Supreme Court oversees the process of admission to thestate bar. R.I. Sup. Ct. R. Art. II.6. In re Petition for Admission to the Rhode Island Bar, 658 A.2d 894, 895(RI. 1995). The ACLU challenged questions 26-29. See infra note S.7. Id. To make its revisions, the Committee sought the assistance of a psy-chiatrist with extensive experience in the treatment of substance abuse andmental illness, the United States Department of Justice, and opinions from otherjurisdictions. Id8. Id. The ACLU withdrew its challenge to two questions after the Commit-tee modified the questions. In re Admission, 683 A.2d at 1333 n.1. The remainingcontested questions, 26, 29(a) and 29(b), read:405406 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:405master to conduct inquiries into the propriety of the two chal-lenged questions, elicit responses from community members, andsubmit findings, along with newly proposed questions, to thecourt.9 Following the submission of the master's report, thesupreme court sought and received numerous written commentson the report, and assigned the matter for a public hearing.10BACKGROUNDThe ADA was enacted toprotect the rights of disabled Ameri-cans.11 Its employment protections extend to "qualified" 12 individ-uals, who do not pose a "'direct threat' to the health or the safety of26. Are you or have you within the past five (5) years been addicted to ordependent upon the use of narcotics, drugs, or intoxicating liquors or beendiagnosed as being addicted to or dependent upon said items to such anextent that your ability to practice law would be or would have been im-paired? YES__ NO__. If yes, please state the details, including dates andname and address of the individual who made the diagnosis if one wasmade.29(a). Have you ever been hospitalized, institutionalized or admitted toany medical or mental health facility (either voluntarily or involuntarily)for treatment or evaluation for any emotional disturbance, nervous ormental disorder? YES_. NO_. If yes, state the name and complete ad-dress of each hospital, institution or treatment facility; the dates of treat-ment or evaluation; and the name of each individual in charge of yourtreatment or evaluation.29(b). Are you now or have you within the past five (5) years been diag-nosed as having or received treatment for an emotional disturbance, ner-vous or mental disorder, which condition would impair your ability topractice law? YES__ NO. If yes, explain, stating the name and com-plete address of each psychologist, psychiatrist, counselor or other medicalpractitioner who made such diagnosis or from whom you received treat-ment, and the relevant dates.Id. at 1334.9. Id. at 1333-34.10. Id. at 1334. The court received more than 18 briefs and comments on thisissue. Id. at 1335. However, the court noted that the Rhode Island Bar Associationtook no stand on the challenged questions. Id. at 1335 n.2.11. See id. at 1335; Americans with Disabilities Act of 1990, 42 U.S.C.§§ 12101-12213 (1994).12. The ADA protects "qualified individuals who either have a physical or amental impairment that substantially limits a major life activity or have a recordof such an impairment. To qualify for such protection, an individual must meetthe essential eligibility requirements for receipt of services or for participation in apublic entity's program activities, or services." In re Admission, 683 A.2d at 1335.1997] SURVEY SECTIONothers."13 Under the ADA, both private employers' 4 and public en-tities' 5 are prohibited from conducting discriminatory employmentpractices. 16 In order to prevent discrimination in the hiring pro-cess, the ADA limits an employer's inquiry to areas relevant to the"applicant's ability to perform job related activities."' 7 An em-ployer may not make "unnecessary inquires into the existence [orseverity] of a disability, nor may [a public entity] discriminate inits licensing, certification and regulatory activities."' 8Other states 19 have applied the ADA to their bar applicationswith differing results. Virginia 20 and Florida 2 ' courts have foundthat application questions similar to Rhode Island's question 29(b)violate the ADA. A Texas court, however, upheld a bar questionthat asked whether the applicant has been diagnosed with ortreated for "bipolar disorder, schizophrenia, paranoia, or any otherpsychotic disorder."2 2 In light of the ADA, the American Bar Asso-ciation (ABA) has recommended that states "tailor questions con-cerning mental health and treatment narrowly" so as not todiscourage applicants from seeking mental health services. 2 313. The court defines a direct threat as "a significant risk to the health orsafety of others that cannot be eliminated or reduced to an acceptable level by themodification of the public entity's policies, practices, or procedures or by the provi-sion of auxiliary aids or services." Id.; see 42 U.S.C. §§ 12111, 12131.14. 42 U.S.C. §§ 12111-12117.15. Id. §§ 12131-12134. "Public entity" is defined as "any department, agency,special purpose district, or other instrumentality of a State, or States, or local gov-ernment." Id. § 12131(1)(B) (emphasis added).16. It appears that the court included the commission in the latter categorybased on its frequent use of the term "public entity." See Clark v. Virginia Bd. ofBar Exan'rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (The Board conceded its publicentity status under the ADA.).17. 42 U.S.C. § 12112(d)(4).18. In re Admission to the Rhode Island Bar, 683 A.2d 1333, 1335 (R.I. 1996).19. Although all 50 states and the District of Columbia have questions con-cerning an applicant's character on their bar applications, no unanimity exists asto mental health questions. Arizona and Massachusetts do not ask such questions.Five other states have removed mental health questions from their applications.Ten states ask "about hospitalization or institutionalization for mental impair-ment or illness." Broad mental health questions are asked by 32 states. Clark, 880F. Supp. at 438-40.20. Id.21. Ellen S. v. Florida Bd. of Bar Exam'rs, 859 F. Supp. 1489 (S.D. Fla. 1994).22. Applicants v. Texas State Bd. of Law Exam'rs, No. A 93 CA 740 SS, 1994WL 776693, at *3 (W.D. Tex. Oct. 11, 1994).23. In re Admission, 683 A.2d at 1335 (quoting Proposal 110, A.B.A. House ofDelegates (August 9, 1994)); Clark, 880 F. Supp. at 440-41.408 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 2:405ANALYSIS AND HOLDINGFirst, the Rhode Island Supreme Court stated that the ADAwas applicable in this case, since the Committee acts as an em-ployer in screening applicants, and the procedures for admission tothe bar are the "functional equivalent of a hiring process."2 As aresult, questions 26, 29(a) and 29(b) would violate the ADA unlessthe Committee could prove they were linked to a direct threat topublic safety.2 5 The court stated that in order to demonstrate thisthreat, the Committee must show:(1) applicants with mental-health and substance-abuse-treatment histories actually pose an increased risk to thepublic, (2) the admission process has effectively protected thepublic by using questions Nos. 26, 29(a), and 29(b) to identifythose persons with mental-health or substance-abuse-treat-ment histories who are a danger to the public, or (3) attorneyswho have become a danger to the public in their practice oflaw, when retrospectively reviewed, could have been identi-fied with any degree of reliability by such questions.2 6This burden, the court held, was not satisfied since research hasfailed to establish a link between "previous psychiatric treatment* . . [and] an individual's capacity to function in the workplace."27The court also added that the record was barren of any evidencesupporting the proposition that a history of psychiatric treatmentleads to a higher rate of disciplinary action.2 8 Furthermore, in"nearly all" recorded cases of attorneys with disciplinary problems,there were "no indicators of future difficulty" exhibited at the timeof the licensure. 2 9 Finally, the court took issue with the fact thatthe initial screening process is not conducted by individuals withmental health training.3 0The court also placed emphasis on studies showing that manylaw students would only seek psychological or substance abuse24. In re Admission, 683 A.2d at 1336.25. Id.26. Id.27. Id.28. Id.29. Id.30. Id. The court noted that even mental health professionals would "experi-ence difficulty in predicting with accuracy the future threat posed during a lifetimeof practicing law." Id. (citing W.E.B. Narrow et al., Use of Services by Persons withMental and Addictive Disorders, 50 Archives of Gen. Psychiatry 95 (1993)).9 SURVEY SECTIONcounseling if they were assured the information would not beavailable to bar officials.31 The inclusion of questions such as num-bers 26 and 29 on the bar application "may discourage future barapplicants from taking advantage of [counseling] opportunities."3 2The court concluded by recommending the adoption of themaster's proposed questions. 33 The court said questioning appli-cants about current psychological and substance abuse problems ispermissible under the ADA, and fulfills the competing goals of"protect[ing] the public from incompetent counsel," and protectingthe privacy rights of the applicants.34CONCLUSIONThe Rhode Island Supreme Court followed the recommenda-tions of the ABA, and the trend seen in many other jurisdictions,by limiting the scope of mental health and substance abuse ques-tions on the bar application. As a result of this case, an applicantfor the Rhode Island bar may not be asked questions concerningpast mental or substance abuse treatments. This case shows thebreadth of the ADA's influence over any process deemed a "hiringprocess," as well -as the continued importance placed on privacyrights and the protection of the "handicapped" from discrimination.Tracy Kelly Doorley31. Id.; see Report of the AALS Special Committee on Problems of SubstanceAbuse in the Law School, 44 J. Legal Ed. 35, 55 (1994); Dickerson, PsychologicalCounseling for Law School Students, One Law School's Experience, 37 J. Legal Ed.82, 89-90 (1987).32. In re Admission, 683 A.2d at 1336.33. The questions will now read:Question 26: Are you currently using narcotics, drugs, or intoxicatingliquors to such an extent that your ability to practice law would be im-paired? Yes__ No__'Currently' means recently enough so that the condi-tion could reasonably be expected to have an impact on your ability tofunction as a lawyer ....Question 29: Are you currently suffering from any disorder that impairsyour judgement or that would otherwise adversely affect your ability topractice law? Yes_ No_Id. at 1337.34. Id.1997] 409

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