Judge Justin Walker on Bar Bureaucracies, Mental Illness, and More

"[One day, t]he Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive."

|The Volokh Conspiracy |

From Friday's decision in Doe v. Supreme Court of Kentucky; Judge Walker (known in part for the coronavirus / drive-in church services / Free Exercise Clause decision) is a federal judge in the Western District of Kentucky, but has been confirmed for the D.C. Circuit:

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. The problems begin in law school, where "law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations." After graduation, lawyers suffer from depression at higher rates than non-lawyers. Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as "disproportionate" and "disconcerting."

Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn't want her to. They thought her mental disability [apparently depression or Bipolar I Disorder or both] made her unfit. For over two years, they stopped her. But she didn't give up. And they eventually relented.

Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists' notes from their counseling sessions, and illegally treated her like a criminal because of her disability.

This case is not only about Jane Doe. It's also about the lawyers who decide who else can be a lawyer.

Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. The court, in turn, delegates that job to its Bar Bureaucracy:

  • The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.
  • The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral or unfit.
  • The Board of Bar Examiners prohibits people from practicing law if they can't pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about.
  • The Kentucky Bar Association decides who gets to stay a lawyer.
  • The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.

Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.

If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can't blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy's lawyers to let you join their club, it isn't a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution.

Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe's federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe's state-law claims.

The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants—and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive….

Several federal and state courts have held that the Americans with Disabilities Act prohibits Bar Bureaucracies from unnecessarily interrogating applicants about their mental health. So too did the Department of Justice. In 2014, it concluded that questions about applicants' mental health do "not provide an accurate basis for predicting future misconduct." Instead, they likely "deter applicants from seeking counseling and treatment for mental health concerns, which fails to serve the Court's interest in ensuring the fitness of licensed attorneys." In other words, according to the Department of Justice, a Bar Bureaucracy's decision to ask applicants about their mental health status makes aspiring lawyers less fit to practice law.

{To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant's relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant's status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it's fair game to ask, "Have you ever been fired?" Or, "Have you ever robbed a bank?" Applicants' mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank).} …

[Doe, who was a member of the Florida bar, applied to join the Kentucky bar.] [S]hortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a "consent agreement" for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida's rules and Kentucky's rules and reporting requirements; and 3) "residency in Kentucky … unless" Doe was relocating for work and the Bar Bureaucracy approved.

The consent agreement did not provide details about the Kentucky Contract. Yvette Hourigan, Director of the Kentucky Lawyer Assistance Program, said the contract would mirror the monitoring arrangement Doe had with the Florida Lawyers' Assistance Program, which was tailored to Doe's diagnosis.

Doe passed the bar exam. She paid the dues and swearing-in fee.

Although Hourigan had promised to send a proposed contract, she didn't. Instead, she arranged to meet with Doe the morning of the new lawyers' swearing-in ceremony at the State Capitol. That day, Hourigan "texted that she was running late and they would meet on the steps of the Capitol" minutes before the swearing-in.

At this point, you might be thinking that a public place with many of Doe's peers isn't an ideal place to discuss private medical issues. (It isn't.)

You might also wonder if other bar applicants could overhear their discussion.26 (They could.)

Instead of the personalized contract Hourigan had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor but plays one on the Capitol steps, also said Doe's medications required abstinence from alcohol. (They don't.)

Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and "the ADA does not permit the disabled to be treated like criminals." (It doesn't.) …

There's much more; if you're interested, read the whole opinion. A bit more from the end:

By this point, you might be wondering how a plaintiff could ever challenge the way a Bar Bureaucracy asks applicants about their mental health and puts them through the ringer if they truthfully disclose a mental disability. The answer is that a plaintiff could sue for prospective relief—a declaration that the questions violate federal law and an injunction prohibiting the Bar Bureaucracy from asking them. To have standing, the plaintiff would need to be a bar applicant, not an unconditionally licensed lawyer like Doe was when she filed this suit….

Let's recap. For her federal-law claims, Doe lacks standing for prospective relief. She also lacks standing to sue the institutional defendants other than the Supreme Court of Kentucky and the Character and Fitness Committee because the others didn't cause her injuries. Judicial immunity and legislative immunity shield the Supreme Court of Kentucky and Character and Fitness Committee from damages.

Doe's federal claims must therefore be dismissed. And the Court declines to exercise jurisdiction over her state-law claims….

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won't. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him—as Kentucky's did against Jane Doe.

It is not a matter of if, but when.

I'm not sure whether all this analysis is sound—it's not quite my field—but I thought it was quite interesting. (Note also that there is some doubt about whether lawyers are any more likely to suffer from mental illness than other professionals, see Yair Listokin & Ray Noonan, Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey.)

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  1. So basically the bar can create whatever rule they want, and as long as they back down right before a judgement is called the rule can never be overturned legally?

    1. Not necessarily. If the complained of conduct is capable of repetition yet evades review, that might avoid mootness. Here it didn’t, likely because she’s a lawyer and there’s nothing to resolve. But in some hypothetical where the bar repeatedly erects barriers, tears them down at the last second, and then erects new ones, some plaintiff is going to get by mootness.

      1. Okay, good to hear. That addresses my only concern.

  2. I thought that ADA was a Federal law with Federal remedies….

    1. It’s my understanding as an ADA consultant (IANAL) that the remedies don’t generally include significant money damages to the plaintiff but do include removing the barriers. The most common type of ADA lawsuit I see is a lawyer attached to a repeat plaintiff and “expert” who demand changes but get little direct compensation although the lawyer gets his or her fees paid. I suppose in an employment case it might be possible to get actual damages in the form of lost wages etc, that might have been the case here since they delayed her license for two years.

      1. And I’m in education where folks are more worried about OCR than any court or judge. But I have heard about people going around and getting big bucks from little convenience stores that didn’t have their HP parking space properly marked. I think the NYPost wrote about someone doing that.

        1. That’s one of the type of cases I’ve worked on. I doubt they’d get big buck for a minor infraction like a parking sign, unless the owner was a complete jerk.

              1. If you look at the articles no single case is going to get a lot of money. They make it up in volume. What I see is owners getting hit with the cost of corrections plus $5-7,000 in legal fees.

                In reality most of these changes should have been made long ago and there would have been no lawsuit. The most expensive one is probably the public/commercial swimming pools which generally require lifts which cost a couple of thousand dollars plus installation.

  3. I think that Trump’s judicial appointments have, on the whole, been excellent, but hey—bonus dormitat Homerus.

    1. Well, they’re young. Inexperienced in a number of cases, and ideological, so there’s that.

  4. The bars will be challenged like all self-regulating professional boards, since the Supreme Court narrowed Parker antitrust immunity.

  5. Why are the lawyers running the bar association immune for their official actions? That seems like a really terrible rule.

    1. Some combination of union bosses tending to have lots of power, and judges tending to rule in favor of those in the legal profession, especially those with more power?

    2. They aren’t immune in the sense they can be restrained by an injunction. But they are immune from damages, just like the state itself, under the 11A.

      1. Didn’t the enforcement clause of the 14th supersede the 11th in civil rights cases?

  6. I’m definitely sympathetic to his concerns about the bar admission process generally and mental health in particular. But I think it’s highly inappropriate for a judge to essentially refer to some of the parties in front of the court by a cute nickname he came up with. It’s disrespectful. These organizations obviously aren’t sympathetic, particularly in this fact pattern, but it’s still not a good look for the judge. I hope this doesn’t become a habit for him.

    1. I think Judge Walker has made it clear that his barometer for a “good look” isn’t a very discriminating one. Perhaps if he had ever tried a case, he might have a better feel for these things.

      1. He’s not quite grown up yet, but he’s got a very good friend in the Senate.

    2. Blackman’s analysis of the On Fire Christian Center case is relevant:

      https://reason.com/2020/04/12/courts-should-not-decide-issues-that-are-not-there/

      But I guess being this ridiculous gets you fast-tracked to a Circuit Court position, so…why not?

      1. The way he handled that case was so bad even Josh thought so.

        Weirdly I am actually glad that some of Trump’s most ridiculous nominees are on the circuit courts. Judges like Walker and James Ho probably should not be interacting with lawyers and litigants on a day-to-day basis.

  7. “And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims.

    This I do not understand — and would like to as I was of the opinion that the “under color of law” was an absolute in terms of civil rights.

    Could the Bar Bureaucracy say “No Niggers” — as explicitly and crudely as that — and get away with it? This would lead me to think they could — it would still be the same 14th Amendment exception to the 11th Amendment, a different Federal statute under the 14th, but still the same Section 1983 claim.

    And when a Black applicant persisted and they finally let him (or her) in, could they then claim “no harm, no foul because we let you in three years later”? I don’t think so.

  8. I’ll go further on this — Kentucky was quite outrageous here. There is supposed to be something known as reciprocity and much as Florida would recognize their bar discipline (etc.), aren’t they obligated to recognize Florida’s? And to at least give the presumption to Florida’s saying that they weren’t having any problems with her?

    NB: That is an ethical question, not a legal one.

    I am not a lawyer, but I am a professor and as such I got asked to make an inquiry on behalf of a former student (unnamed) to, in this case, the Connecticut bar. And when I finally got to the right person, I was told pretty much what I expected to hear, that they were mostly concerned with people who went off their meds and someone with a documentable history of medical compliance didn’t have anything to worry about, and that they were required to comply with ADA, etc.

    Now maybe I was lied to — she was a lawyer — but I don’t think so as the individual didn’t have any problem becoming a member of the CT bar.

    And that’s why I used the N word because I consider what happened here every bit as egregious.

    1. “And that’s why I used the N word because I consider what happened here every bit as egregious.”

      The 11A protects states from money damages. SCOTUS has held that Congress can abrogate 11A immunity under Section 5 of the 14A. But SCOTUS has also held that Title I of the ADA, prohibiting discrimination on the basis of disability, went beyond Congress’s authority under Section 5. Plaintiffs can still sue state actors in lawsuits that don’t implicate the 11A (some injunctive relief).

      Title II of the ADA may allow direct suits against states in cases where citizens are suing the state to make state property accessible, to remedy a history of discrimination. I don’t know whether access to become a lawyer would be treated the same. In any event, state bars that banned blacks would be prohibited from doing so by either injunctive relief or money damages, since that is the sort of discrimination that Congress can abrogate 11A immunity.

      1. “But SCOTUS has also held that Title I of the ADA, prohibiting discrimination on the basis of disability, went beyond Congress’s authority under Section 5.”

        Do you have a cite on that?
        I always thought that should be true, but never knew it was.

        1. scotuslink.com/531/356

        2. United States v. Georgia, IIRC.

          1. I was thinking of Board of Trustees of U. of Alabama v. Garrett (Noscitur has the link). In US v. Georgia SCOTUS held that under Title II of the ADA, a prisoner could go directly against the state for damages. But their claims would be limited to those claims alleging independent violations of the Constitution.

  9. He’s not a big fan of bureaucrats. Here’s a case where he denied QI to a CPS case worker (and a cop) who strip-searched kids without consent.

    1. Or cause, which was the bigger issue. And it was a 4-year-old, BTW.

      I didn’t realize it was the same judge — I like this guy.

  10. Two other thoughts here — again, I genuinely don’t know /

    1: what does HIPPA say about Private Medical Information which goes to a state entity with the patient’s permission. That’s not a blanket release, and the rules on mental health are even stricter.

    Did the state bar babe (I am thinking of worse adjectives) violate HIPPA in discussing Doe’s medical information in hearing of others?

    2: In general — there are exceptions to everything — the rule in academia is that a university can not demand to see psych records. All they can do is ask the treatment provider to document either the need for an accommodation or the student’s ability to return to school. It gets grey with the latter because they can ask to have their own voodoo scientist also examine the student, and I’m not sure if that’s ever been challenged.

    So what right did the have to ask for her treatment records? They aren’t even voodoo scientists, how are they supposed to even understand them?

    1. HIPAA does not apply because the bar association is not a “covered entity” under that law. In other words, HIPAA protects your medical information when it’s in the hands of medical providers (or of the people and companies who support them) but not when it’s in the hands of Facebook, your employer or your neighbor.

      Okay, that’s a broad over-generalization of HIPAA’s scope and there are some important exceptions. The point is that it’s about as likely to be HIPAA as it is to be RICO – mostly no.

      1. Due to the current moment in history, @badlegaltakes isn’t enough to handle HIPAA. So there’s @BadHIPPAtakes.

      2. What’s the penalty for a HIPPA violation? What’s the maximum anyone has every paid?

        1. No one has ever paid a penny for a HIPPA violation.

        2. “What’s the penalty for a HIPPA violation?”

          They send you a case of HIPPA cups.

    2. 1: what does HIPPA say about Private Medical Information which goes to a state entity with the patient’s permission. That’s not a blanket release, and the rules on mental health are even stricter.

      Did the state bar babe (I am thinking of worse adjectives) violate HIPPA in discussing Doe’s medical information in hearing of others?

      Given that there is no such statute as “HIPPA,” I’d say you should once again stick to IANALNDIWTBO.

  11. Before you start opining on HIPAA, you may want to learn how to spell it.

  12. I don’t think a federal court has any business calling a duly constituted state agency derogatory names, especially one that is a party to a case before it, even if it decides the case in the agency’s favor. Doing so is totally lacking in respect for others. It expresses arrogance and hubrus.

    The fact that members of the Conspiracy may dislike bar associations having the powers that they do, or even a belief thst their having those powers is a bad idea on policy grounds, is no reason for federal judges to insult them.

    A judge is entitled to express some sympathy for a plaintiff, who feels and may well be genuinely wronged, when dismissing a case on technical grounds. But not that way.

  13. I saw “Bar Bureaucracies” and immediately had something to say about the apparent assigned seating at my local pub. Bar restrictions are obsolete: we’re all in this together!

  14. Wow.

    I have long had some animus with the way that most state bars handle things. Many are too restrictive on supposed character issues (such as mental health!) on entry, and none of them are active enough in attorney discipline afterwards in anything that matters (except trust accounts). This results in keeping people out artificially for made-up reasons that are offensive (such as mental health) while refusing to act to discipline egregious professional issues (oh, you extorted sex from your client? well, we might have to reprimand you, maybe).

    So I am generally in favor the results of this decision. But a federal judge who writes in this manner, demeaning litigants with pet names he concocted to show his disdain? That is thoroughly unprofessional. It detracts from the power of a decision, and detracts from the credibility of the judiciary as a whole.

  15. Real life twist. Attorney licensed in two other states, with no bar complaints, etc, applies for admission in UT. Rejected based on lack of character of alleged alcoholism, based on single DUI arrest of just under .08% BAC dismissed sua sponte by prosecutor for lack of probable cause. Attorney had not acquiesced to a roadside sobriety test. Instead he asked if he could leave. He was repeatedly told that he would be arrested for DUI if he didn’t take the roadside sobriety test, and ultimately was. State law was that the purpose of roadside sobriety tests was to develop probable cause, implying that a repeated demand for such was an admission that the police lacked sufficient probable cause for an arrest.

    The relevance here is that the board determining fitness was dominated by members of the LDS church, which prohibits drinking of alcohol, and the rejected attorney was a gentile (non LDS).

    1. Bruce-

      Is the issue character, or was it a lack of candor?

      In other words, was there a failure to disclose? The degree of unfairness is different for the two.

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