The permissibility of inquiries about mental health and substance abuse treatment histories on bar applications was actively debated in the years after the passage of the Americans with Disabilities Act (“ADA”). Two decades after those debates began, the law remains unclear and the question is, for the most part, no longer discussed. However, the increasing use of conditional admission for applicants with treatment histories requires a renewed scrutiny of whether state bars should be allowed to use or request this information. Conditional admission programs, which allow applicants to be admitted to the bar subject to monitoring or supervision conditions, have been promoted as a way to admit disabled applicants who would previously have been denied while protecting the public from potentially impaired attorneys. However, conditional admission is often used for applicants with mental health or substance abuse histories who are not impaired and who would have previously been fully licensed. As currently operated, these programs divert qualified applicants with disabilities into an unequal licensure program. This second-class licensure of applicants who are fit to practice law on the basis of their disability clearly violates the ADA and further deters law students from seeking treatment. Both the ADA and these policy concerns require that the use of these programs be reevaluated.
Denzel, Stephanie, "Second-Class Licensure: The Use of Conditional Admission Programs for Bar Applicant with Mental Health and Substance Abuse Histories" (2011). Connecticut Law Review. 101.