ABA strengthens policies on mental health forms for bar admissions, law school financing

The American Bar Association wrapped up its 2015 Annual Meeting Aug. 4, after approving new policies related to the mental health inquiries for bar admissions and more transparency for law school financing.

The action by the House of Delegates - made up of 559 members representing state and local bar associations, ABA entities and ABA-affiliated organizations - covered two days and closed the ABA Annual Meeting in Chicago that began on July 30.

The change in mental health questions expands policy set in 1994 that sought to limit but not eliminate mental health inquiries. States typically employ a form similar to one provided by the National Conference of Bar Examiners that asks about a wide range of mental health history, including out-patient treatment, major depressive disorder or other conditions that significantly impair behavior, judgment or understanding. Rather than a condition, the new policy urges these screening questions address conduct. Under the policy, licensing agencies, which act independently from the ABA, would still have the ability to explore past impairment if they are "reasonable and narrowly tailored" based on circumstances.

Advocates for revised policy argued that many states in their admissions to the bar process now ask for mental health information related to a diagnosis rather than conduct of an applicant. This presents a dilemma for law students who might want to seek professional treatment for a mental health issue but are afraid that they would need to self-report that detail to the licensing agency during the admissions process or risk being accused later of lying to the licensing body. Opponents of the change criticized the policy as being vague, ambiguous and unnecessary.

The House also adopted the recommendations of the 15-member ABA Task Force on the Financing of Legal Education, chaired by former ABA President Dennis W. Archer (2003-04), In June, the task force released its report that called for enhanced debt counseling for law students, wider collection and publication of law school financial data, and innovation to lower costs for law students. The new policy encourages the ABA Council of the Section of Legal Education and Admissions to the Bar, an arm that serves independently as the ABA's law school accrediting agency, to mandate enhanced financial counseling and more easily understood loan and repayment programs.

For the first time, the ABA adopted standards for monitors - individuals who serve as external compliance officers or inspector generals who have become popular judicial, regulatory and conflict resolution tools. The ABA Criminal Justice Section proposed the ABA Standards for Criminal Justice: Monitors, which provide guidelines that cover a range of areas from the selection process of monitors to their filing reports.

In other measures, at the request of the Section of Individual Rights and Responsibility, the House approved a proposal to change the entity's name to the Section of Civil Rights and Social Justice. The Board of Governors earlier approved the change, and the section leaders made the recommendation because they thought it would resonate more with younger lawyers than the previous moniker IRR.

Turning toward internal governance, the House approved changes to the ABA's Constitution and Bylaws as part of a decennial review. The changes add 41 additional members of the House to bring membership up to 600. Also, the changes add two more members to the committee that nominates prospective officers, and three new members to the Board of Governors that serves as the administrative body of the association. The governance resolutions are aimed, in part, at emphasizing the ABA's continuing focus on more diversity in the legal profession and in its internal matters.

In other resolutions the House:

- Adopted a resolution that urges courts, probation officers and law enforcement agencies keep juvenile records in their custody confidential.

- Approved a resolution that called upon election officials and legislators at various levels adopt and implement policies aimed to achieve a 30-minute maximum per voter wait time at the polls during elections.

- Voted to enact a policy that recognizes that lesbian, gay, bisexual, transgender, and queer people have the right to be free from attempts to change their sexual orientation and gender identity and urges governments to enact laws that prohibit state-licensed professionals from using conversion therapy on minors.

- Urged legislatures and government agencies to provide the funding necessary to develop, implement, and maintain appropriate cybersecurity programs for the courts. The resolution notes that cybersecurity threats could affect the judicial system and may pose a risk to the fair and efficient administration of justice.

- Adopted separate policy resolutions that address domestic and sexual violence that:

- Urges the federal government to enact legislation and appropriate full funding to support the U.S. Department of Education Office for Civil Rights, in support of its efforts to enforce Title IX of the Education Amendments of 1972 and other activities designed to promote access to education free from gender-based violence. (109A)

- Asks governments to enact civil protection order statutes regarding domestic, intimate partner, sexual, dating, and stalking violence that extend protection to lesbian, gay, bisexual, and transgender individuals.(109B)

- Recognizes freedom from domestic, dating and sexual violence and stalking and all other forms of gender-based violence as a fundamental human right and urges governments to recognize, enact and adopt resolutions affirming the right of all women, men and children to live free from domestic, dating and sexual violence and stalking.(109C)

Published: Thu, Aug 13, 2015

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