07/10/2014 01:18 pm ET Updated Sep 09, 2014

DOJ Thinks Bar Examiners Should Know Less About Mental Health of Would-Be Attorneys. And That's A Good Thing.

People can't just become lawyers. As a licensed profession, there are many hurdles to clear before you can actually get down to business and start putting those letters "Esq." after your name. There's a process involved. Yes, you probably knew that. However, unless you've had some direct, or even peripheral, experience with the specifics of how one enters the profession, you probably aren't fluent in the current details of what that process entails. At least on some level, maybe you should be.

As a profession that touches so many aspects and influences so many angles, seen and unseen, of our lives, how people become lawyers is actually quite important. How the people who are trusted with our rights, liberties, contracts and monies earn the privilege to do what they do is something that, in one way or another, affects us all. Because of that, and the larger, more general point it raises about how we as a society deal with mental health and addiction problems, some little publicized but fundamentally significant, recent action by the Department of Justice will hopefully result in a healthier legal profession with fewer impaired lawyers. And that would be good, since the practice of law currently maintains some of the highest rates of mental illness and substance abuse on the planet. (True story, there's a decent chance your lawyer is depressed, has a drinking problem, or both.)

In very general terms, one part of the process for becoming a licensed attorney involves a character and fitness examination (similar to a really thorough background check) to ensure that applicants have demonstrated a sound mind and good moral character before they can practice law. So far, so good. After all, we don't want someone with a demonstrated track record of reckless, harmful or illegal behavior to hang out a shingle and start representing the important interests of an unsuspecting public.

As part of this examination however, states have historically and routinely inquired into the mental health histories of applicants, including asking probing questions about diagnoses such as depression, anxiety, bipolar disorder and chemical dependency. Notice we're now talking about diagnoses and conditions, not behavior. So far, not so good. Beyond just asking questions about these matters though, some states also demand full access to any existing treatment records if the applicant has ever sought help for such an issue. If the words "fishing expedition" come to mind, it would be with good reason. Then, based on the results of these inquiries, applicants to the bar can sometimes be denied admission or admitted with serious restrictions on their ability to actually practice.

Now let's pause for a second and think about why this might be problematic, why making mental health diagnoses and treatment histories fair game for bar examiners might have an opposite-than-intended-effect. (As an aside, this probing is also a violation of the Americans with Disabilities Act, which -- spoiler alert -- is the basis of the DOJ's fundamentally significant action that I mentioned. They have basically told states to stop violating federal law by inquiring into the mental health status of would-be attorneys and focus instead on their conduct and behavior).

For purposes of illustration, we'll consider my recent shopping trip to a Banana Republic store just outside of Minneapolis. What does my need for a couple of non-iron dress shirts and some chinos have to do with this? A lot, as it turns out. Like most of us, my ears reflexively perk up when I hear certain words or phrases and I can, in an unintentional heartbeat, sometimes find myself crossing over from earshot to eavesdrop with the precision of an accidental, but well-oiled spy. That day, it was the conversation between two clerks outside my dressing room -- the conversation where one of them explained why she plans to go to law school -- which drew me across that invisible yet heavy line between passive hearing and active listening.

To hear her tell it, being a lawyer is all she has ever wanted to do, all that has ever made sense in her universe or felt like anything remotely resembling a destiny. Ever since she was nine, in fact, right up until her presumably part-time, summer job at BR, one of the clerks refolding clothes five feet away while I compared gingham to plaid has been dead-set on being a lawyer, come hell or high water. The certain, decisive tone of her voice made me fairly confident she'll reach that goal. No matter what.

And that's the point. In terms of her mindset and the mindsets of countless other aspiring lawyers of yesterday, today and tomorrow, obstacles are nothing that can't be overcome with the right amount of determination, hard work, resourcefulness and grit. So to think that these individuals would let something like a diagnosis or a treatment record keep them from entering their chosen profession -- to knock them off their exhausted stride just short of the finish line -- is to misunderstand the nature of the situation entirely. No, rather than create a paper trail and chum the waters for their future bar examiners, most law students or future law students opt for the prize behind door number two: denial.

There. Is. Nothing. Wrong.

"Drinking problem? What drinking problem? No, I'm not depressed. Anyone in my shoes would feel down." Ignore the problem, work hard, deny. And so the personal narrative begins, and so the culture of un-wellness takes hold in another young lawyer. But now, hopefully, the cycle will slow. Perhaps, more importantly, our society as a whole will soon begin take the paradoxical cue that if you want people to get help for their mental health problems, let them keep it private.

Need help? In the U.S., call 1-800-273-8255 for the National Suicide Prevention Lifeline.

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