Clark v. Virginia Bd. of Bar Examiners, Civ. A. No. 94-211-A.

• Decision Date: 23 February 1995
• Docket Number: Civ. A. No. 94-211-A.
• Citation: 880 F. Supp. 430
• Parties: Julie Ann CLARK, Plaintiff, v. VIRGINIA BOARD OF BAR EXAMINERS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

880 F. Supp. 430

Julie Ann CLARK, Plaintiff, v.VIRGINIA BOARD OF BAR EXAMINERS, Defendant.

Civ. A. No. 94-211-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 23, 1995.

Victor M. Glasberg, Alexandria, VA, for Plaintiff.

Peter R. Messitt, Asst. Atty. Gen., Richmond, VA, for defendant.

MEMORANDUM OPINION

CACHERIS, Chief Judge.

The issue before the Court is whether a question appearing on the Virginia Board of Bar Examiners' "Applicant's Character and Fitness Questionnaire" addressing an applicant's history of mental or emotional disorders violates the Americans with Disabilities Act,42 U.S.C. §§ 12101 et seq.(1994).Following a preamble explaining that the Virginia Board of Bar Examiners is concerned only with "severe forms of mental or emotional problems,"Question20(b) asks: "Have you within the past five (5) years been treated or counselled for any mental, emotional or nervous disorders?"If Question20(b) is answered affirmatively, applicants must then give specific treatment information pursuant to Question 21.

For the reasons set forth below, the Court finds that Question20(b) is framed too broadly and violates the Plaintiff's rights under the Americans with Disabilities Act.Accordingly, judgment is entered in favor of the Plaintiff and the Virginia Board of Bar Examiners is enjoined from requiring that future applicants answer Question20(b).

I.FINDINGS OF FACT

PlaintiffJulie Ann Clark brings this action against the Virginia Board of Bar Examiners(the "Board") to have Question20(b) stricken from the Board's "Applicant's Character and Fitness Questionnaire"(the "Questionnaire") because it violates the Americans with Disabilities Act(the "ADA").The Board maintains that Question20(b) is posed appropriately and is necessary to identify applicants with mental disabilities that would seriously impair their ability to practice law and protect their clients' interests.The Court, after reviewing the evidence, authorities and arguments of counsel, makes the following findings of fact.¹

A.The Parties to the Case

PlaintiffJulie Ann Clark, a resident of Virginia, graduated from George Mason University Law School in June of 1993.She is currently employed as a children's program specialist at the Bazelon Center for Mental Health Law.During law school, Ms. Clark worked as a law clerk for the National Senior Citizens' Law Center, the American Bar Association Commission on Mental Disabilities, and the law firm of Landsman, Eakes & Laster.Additionally, Ms. Clark worked at various times as a paralegal for Legal Services of Northern Virginia and Virginia Legal Aid, and held several positions at the Loudon County Abused Women's Shelter.

Ms. Clark suffers from a condition previously diagnosed as "major depression, recurrent".Plaintiff's Exhibit68(a).²Because the details of Ms. Clark's condition were disclosed in an affidavit filed under seal, they are not reviewed here.In an unsealed affidavit, Ms. Clark avers that, as a result of her condition, she"effectively lost much of her ability to concentrate, act decisively, sleep properly, orient herself, and maintain ordinary social relationships."Pl.Ex. 68(a).This condition, which occurred a few years ago, affected her for thirteen months.

The Virginia Board of Bar Examiners, an entity created under the authority of Virginia Code § 54.1-3919(1994), is responsible for the examination of applicants for licenses to practice law in Virginia.Under Va.Code § 54.1-3925.1(A), the Board must determine, prior to licensing, that each applicant is a "person of honest demeanor and good moral character, is over the age of eighteen and possesses the requisite fitness to perform the obligations and responsibilities of a practicing attorney at law."The Board makes this determination "from satisfactory evidence produced by the applicant in such form as the board may require."Id.As a precondition to licensure, the Board requires that applicants answer all of the questions contained in its Questionnaire, including Question20(b).

Pursuant to its authority under Va.Code § 54.1-3922, the Board promulgated rules governing the admission of bar applicants.Section III of these Rules, titled Character Requirements, explains that the burden is on the applicant to produce evidence satisfactory to the Board that he or she possesses the requisite fitness to perform the obligations of a practicing attorney.Def.Ex. 4.The stated purpose of the character and fitness review is to ensure the protection of the public and safeguard the system of justice.Id.The revelation or discovery of characteristics suggesting a lack of fitness to practice law, including evidence of mental or emotional instability, may be treated as cause for further inquiry by the Board.³Id.The application does not, however, inquire into physical disabilities which may impair one's ability to practice law.

B.Application for Admission to the Virginia State Bar

On or about December 13, 1993, Plaintiff completed the Questionnaire and filed it with the Board.Plaintiff declined to answer Questions20(b) and 21 of the Questionnaire on the grounds that they violated Title II of the ADA.⁴Question20(b) and 21, and the preamble introducing these questions, read as follows:

The Board is required to assess effectively the fitness of each applicant to perform the obligations and responsibilities of a practicing attorney at law.In this regard, a lawyer's chemical dependency or untreated or uncontrolled mental or emotional disorders may result in injury to the public.Questions 20 and 21 request information essential to the Board's assessment.The members of the Board recognize that stress of law school, as well as other life factors, frequently result in applicants seeking psychiatric or psychological counseling.The Board encourages you to obtain counseling or treatment if you believe that you may benefit from it.Because generally only severe forms of mental or emotional problems will trigger an investigation or impact on bar admission decisions, your decision to seek counseling should not be colored by your bar application....

* * * * * *

20.(b) Have you within the past five (5) years, been treated or counselled for a mental, emotional or nervous disorders?

* * * * * *

21.If your answer to question 20(a), (b) or (c) is yes, complete the following that apply:

(a) Dates of treatment or counseling;

(b) Name, address and telephone number of attending physician or counselor or other health care provider;

(c) Name, address and telephone number of hospital or institution;

(d) Describe completely the diagnosis and treatment and the prognosis and provide any other relevant facts.You may attach letters from your treating health professionals if you believe this would be helpful.

SeePl.Ex. 1(emphasis in original).

On February 8, 1994, the Board advised Ms. Clark that her refusal to provide relevant information would prevent her from taking the bar examination.Pursuant to agreement of counsel, the Board subsequently agreed to allow Ms. Clark to sit for the February bar examination without answering Questions20(b) and 21 of the Questionnaire.However, the Board indicated that it would not grant her a license until she completed the Questionnaire.

Ms. Clark took the Virginia bar examination on February 22 and 23, 1994 and passed it.She completed all of the application procedures with the exception of answering Questions20(b) and 21.The Board concedes that, but for her refusal to answer Questions20(b), it has no reason to believe that Ms. Clark lacks the requisite character and fitness to practice law in Virginia.Pl.Ex. 6.As the only thing preventing Ms. Clark's licensure is her refusal to answer Question20(b), the issue of whether Question20(b) violates the ADA is properly framed for the Court.

C.Application Procedures of the Virginia Board of Bar Examiners

Prior to 1994, only non-resident applicants were required to provide mental health information as part of their application to the Virginia bar.These applicants completed the character and fitness questionnaire created by the National Conference of Bar Examiner's (the "NCBE"), which included a broad question on mental health.⁵Conversely, resident applicants and those enrolled in Virginia law schools could obtain fitness certification from their local circuit court judge or their law school dean.SeePl.Ex. 5.The procedure for resident applicants included no required disclosure of or inquiry into mental health status or counseling history.

For the February 1994 bar examination, the Board modified its practices to conform to Va.Code § 54.1-3925.1, which removed the ability of circuit court judges and law school deans to certify applicants' fitness to practice law.The Board developed a character and fitness questionnaire based in part on the NCBE's questionnaire.The Board modified the mental health question by explaining its purpose, in a preamble to Question 20, and by limiting the scope of inquiry to the last five years.

The Board reviews approximately 2,000 applications per year.Because it lacks the resources to review all of these applications in-depth, the Board relies on the self-reporting of verifiable facts to obtain relevant information about each applicant.The Board sends the applications to the NCBE, which prepares a character and fitness report on each applicant.The NCBE verifies all of the answers to the Questionnaire, including Question20(b).To verify an affirmative answer to Question20(b), the NCBE inquires from the health care professional disclosed in Question 21 whether the information disclosed is true.

After preparation of the character and fitness report, the NCBE returns the applications and verifying information to the Board for reevaluation.Upon receipt from the NCBE, employees of the Board review and mark the applications for items that may be pertinent to applicants'...