Confidentiality in bar admissions

February 12, 2014 9:41 AM

I have a friend in law school who sees a therapist. She is worried that her therapist's notes can and will be accessed by the bar admissions people as part of the background check process. She has been told this, either by fellow students or professors. Is this true?

Evidently the therapist even told her that he would write in shorthand and keep a lot of mental notes to avoid having much information about her sessions recorded on paper. So, when you are applying for admission to the bar, do they really contact your therapist and ask for session notes? Are therapists required to comply? This seems to me like a major breach of doctor patient confidentiality that would not be tolerated by most bar applicants and doctors, but she seems to think it's perfectly normal. This is in Louisiana, if it matters. I'm sorry if I'm not using the correct terminology regarding the bar application process, obviously I'm not a lawyer. Also this is just for my own curiosity regarding the process; I'm not worried about my friend or anything.

posted by CheeseLouise to Law & Government (8 answers total)

I did not complete the character and fitness process because by then I knew I was leaving school, but I was told that it was basically going to boil down to needing a letter from my psychiatrist that basically certified that I was fit to practice law, not anything particularly personal. In general, you can call the state bar and ask anonymously about potential C&F issues and whether things need to be disclosed, etc, so don't discount that as a resource when stuff like this comes up.
posted by Sequence at 9:51 AM on February 12, 2014

I've only gone through it in NY, but no, that does not seem normal to me. Here is the Louisiana Bar Association page on character and fitness issues with case references. There are a few issues that would cause them to investigate further, like substance abuse, extreme psychiatric disorders, gambling addiction, or other things that could jeopardize your representation of your clients (and more importantly their money). If it came to it, I think they'd just ask for a letter from your doctor stating your condition and treatment plan and they wouldn't just "get" the doctor's notes without you explicitly giving a waiver of your doctor-patient rights.

And when it comes to character and fitness, lying is the worst thing you can do. If you lie or fail to disclose something on the application, they will find out and you will not be admitted. Ever. In any state.
posted by melissasaurus at 9:55 AM on February 12, 2014 [1 favorite]

Let me clarify: no, they will not necessarily ask for all documentation related to your friend's interactions with the therapist, and no, the therapist is not legally obligated to provide the same.

Law schools, the good and reputable ones anyway, care about who the applicant is now. If you had a condition, problem, or disorder in the past and have gotten effective treatment which renders you capable, that should be fine; or in other words, if you're not currently suffering from impaired judgment, behavioral abnormalities (as from untreated mental illness), inability to recognize reality, or a sub-normal ability to cope with the stresses of normal life, you should be fine. What they want to flag are applicants who 1. have potentially problematic mental / emotional health issues, who 2. have not gotten effective and appropriate professional help. And this principle extends to bar admissions, too.

Here's a memorandum from an assistant dean at the University of Michigan Law School which deals with this basic issue. Bottom line: needing help doesn't jeopardize your law career, needing help and not getting it does.
posted by clockzero at 10:00 AM on February 12, 2014 [1 favorite]

The Louisiana Bar page that melissasaurus linked above gives one example of an "emotional/mental issue case." The judicial decision in that case is available here.

From the Louisiana court's decision:

"On his application to sit for the Louisiana bar examination, petitioner revealed that he is currently undergoing professional treatment for post-traumatic stress disorder and a chronic form of depression known as dysthymia. These disclosures caused the Committee to question petitioner's fitness to practice law, and as a result, the Committee sought additional information from petitioner's treating physicians with respect to both his current condition and his prognosis. Based upon the information it received, the Committee allowed petitioner to sit for the July 2002 bar examination, but informed him that he would likely be recommended for a conditional, rather than unconditional, admission to the practice of law."
posted by Bentobox Humperdinck at 10:04 AM on February 12, 2014

This is in Louisiana, if it matters.

Yes, it might matter. I belong to bars in multiple states, and the admissions processes varied greatly including what information they wanted. I understand you're asking out of curiosity so it may not matter much, but I would take with a grain of salt any answers not specific to Louisiana.

I've never been to Louisiana and I'm not licensed there. Good luck to your friend.
posted by cribcage at 10:18 AM on February 12, 2014

Best answer: This is a hot issue right now. See Bazelon Center page on another Louisiana case: https://www.bazelon.org/In-Court/Current-Litigation/Louisiana-Bar-Conditional-Admissions.aspx. See DOJ letter on same Louisiana case (a big deal): http://www.ada.gov/louisiana-bar-lof.pdf.
posted by ClaudiaCenter at 10:35 AM on February 12, 2014 [3 favorites]

Best answer: Lawyer here who took the Louisiana bar in 2002. I also was seeing a therapist at the time for OCD and I was required to provide an authorization to the bar admissions people to contact my therapist. I was a little concerned about this, but ultimately did not worry for two reasons 1) my mental health issues were not serious (i.e. schizophrenia, etc) where I would pose a threat or the condition would affect my practice and 2) my therapist took no notes. There wouldn't be much for them to see.

If she is concerned, she should contact the Louisiana Bar Admissions committee and discuss with them the level of review, what mental issues raise flags, etc.

Above all, they are mostly concerned with disclosure. As in, if you have had issues, they want you to be honest that you have had them. The issues themselves may not be a problem, but hiding them is.

FWIW - I had a friend who took the bar the same year as I did who had numerous drug arrests and had been to rehab. He disclosed all and is now a very successful member of the bar. Honesty wins the day.
posted by tafetta, darling! at 1:13 PM on February 12, 2014 [1 favorite]

Mod note: Folks, OP is currently seeing a therapist, please answer if you have knowledge of the current situation
posted by jessamyn (staff) at 7:18 AM on February 13, 2014