April 4, 2017
Even though I graduated law school last May, I have yet to take the bar exam. This is for a number of reasons. I initially postponed the exam in order to take a much-needed break after law school. Then, I had to postpone the exam a second time because my husband had to undergo major spinal surgery that would require me to provide a degree of post-operative care that would have been rendered impossible had I been studying for / taking the bar. Now, fingers crossed, I will be taking it this July.
As the deadline for applying to take the upcoming exam approaches, I am finding myself dragging my feet when it comes to completing my application to sit for the exam. Though I fully intend to complete and submit my application, to say I am dreading the process would be an understatement. Part of my reluctance stems from the fact that the two-day exam sounds as appealing as soiling myself while standing in front of an auditorium of people. But, most of it is because I find the whole bar application process to be somewhat archaic, intrusive, and misguided.
See, the bar examination process is about more than whether or not you can memorize an insane amount of legal rules and principles and promptly dump them out of your brain in order to not exceed its holding capacity and to function like a normal human being. The written portion of the exam that tests areas of law is a behemoth of a pain in the ass, but a written test that seeks to ensure you possess a certain degree of knowledge in specific areas of law is, while obnoxious, actually entirely understandable. What is truly offensive about the bar examination is the “character and fitness examination” that accompanies the bar application.
Yes, to get your license to practice law, you don’t need to just know the law. You must also sufficiently prove to the board of examiners in your state that you have a decent enough character and moral compass to be deemed worthy of being a lawyer. The fact that lawyers of all people, who by nature engage in arguably unethical behaviors as part of their everyday above-board dealings, have to prove that they’re ethical and benign creatures seems like some kind of a joke. And I really believe it stems from the profession’s own self-loathing rather than some kind of attempt to prevent unethical legal malpractice.
Lawyers are not necessarily the most do-gooding people out there. Doctors save lives, solve problems, and heal you. Lawyers think well and, aside from those in certain sub-specialties within the law, such as alternative dispute resolution, most lawyers help you perpetuate problems and never heal much of anything. Therefore, it is beyond odd to me that lawyers, uniquely, are subjected to this character and fitness assessment and requirement.
On top of the nauseating irony of requiring future lawyers to prove the existence of a blemish-free moral compasses, there is the more problematic manner by which the bar examiners test whether you have a sufficient moral compass. See, the bar examiners assume that unethical individuals who are applying to the bar are not going to openly declare that they are dirty, rotten scoundrels. For this reason, the bar application probes into the deep, dark corners of your life and threatens to permanently prevent you from being admitted to the bar if you are anything less than 110% honest on your application. While nosey and intrusive, this practice would seem to make sense – that is, the practice would make sense if the bar examiners confined the character and fitness questions to those questions that actually succeeded in being predictive of a person’s propensity to engage in malpractice (for instance, inquiry into any former crimes dealing with theft or abuse or something). But, the bar examiners don’t do that.
The character and fitness assessment has always been about more than one’s ethical fitness to practice law. The questions have always delved into aspects of applicants’ lives that have nothing to do with one’s ability to engage as an attorney without violating the profession’s ethics rules. Historically, the character and fitness portion of the bar examination has been used to discriminate against minorities, homosexual individuals, and women – all under the guise of legitimately assessing a would-be lawyer’s “character and fitness.” Now, because inquiring into an applicants’ sexual preference would be blatant discrimination, the bar examiners must be sneakier, which has manifested in different kinds of inquiries. And one type of inquiry that I think is particularly insidious is the question of an applicant’s mental health history.
While inquiring into potential lawyers’ mental health histories might initially smack some of you as warranted, it actually is not. Mental health has been proven time and time again to have no correlation whatsoever to an attorney’s likelihood of engaging in malpractice or failing to provide sufficient services to a client. And bar examiners are well aware of this. Mental health issues have nothing to do with whether you will be a good lawyer in most all cases – especially those involving the most common mental illnesses. In fact, many lawyers I know are totally mentally ill or have antisocial / deviant personalities as it is. Frankly, some degree of mental illness even seems to give a person an advantage in being a good lawyer in some cases.
I am particularly affronted about the mental health inquiry because, in light of both the fact that there is absolutely no reason for the bar examiners to ask about an applicant’s mental health and the fact that I have a mental health diagnosis, or three, I, like many others, find the inquiry into my mental health history to be intrusive. I also believe that this inquiry is merely discrimination against those of us who are not born with perfect brain chemistry attempting to masquerade as “ethical vetting.”
I won’t go into the details of my particular mental health diagnoses – I’m going to save that for National Mental Health Awareness Month in May – but I will say that I am saddened to know that the people who are in charge of my becoming licensed to engage in my profession of choice are so abominably ignorant. The majority of Americans will struggle with a mental health diagnosis at some point in their lives. Mental illness is not a death sentence and it is not a predictor of your character or fitness to be a decent human being. In many cases, it is a function of genetics, brain chemistry, and experience. It is not something to be ashamed of, afraid of, or embarrassed by. But, by including it in its evaluation of a person’s character, the bar examiners in every freckin’ state are guilty of stigmatizing something that is already highly stigmatized and misunderstood. They are also placing people at risk for failing to seek out needed treatment for fear of being professionally penalized. For me, to know I am being judged by lawyers pretending to be psychologists and psychiatrists, it’s enough to make me think twice about joining such a profession.
And I wish I could say this was the only way the legal profession was backwards. The law pervades every aspect of our lives and yet it is one of the most inaccessible aspects of the society we have created. That the law controls so much of what we do and yet is so difficult to understand, even to lawyers a lot of the time, makes the profession somewhat gross to me. It’s elitist, overly formal, and self-important in all the wrong ways. People should be able to get how to navigate the law without having to pay $300/hour. And the reason I wanted to go to law school was to be able to do this for people, to provide to others an understanding of their legal obligations and rights, without bankrupting them. Unfortunately, for those of us who are more sensitive than the average bear and who have to fight daily for our happiness and state of mind, we are judged and picked apart in incredibly violating ways. I find this so discouraging and counterproductive.
I will still follow through with completing my application and I will be honest about what my life is like because, most of the time, I am not ashamed of myself and what I have to deal with. And, fingers crossed, I will still sit for the exam in July. But, it’s not without a great degree of disappointment that I will be joining a field that appears to be hell bent on discriminating against already marginalized groups for no real apparent reason. The bar application is already a 30 page pain in the ass. It’s made worse by having to wear a hair shirt simply for being human, and a responsible one who wants to live a good and happy life, at that.
