Mental health question removed from Virginia bar after law school graduate's efforts

Gray O’Dwyer arrived at the Law Student Wellness Summit ready to do battle. “We were girded!” she said, laughing. “Our loins were girded!”

O’Dwyer, who graduated from the T. C. Williams School of Law in spring 2018, attended the Summit at the University of Virginia on Feb. 5, 2019, alongside UR and UVA’s student bar associations. They intended to aggressively advocate for the removal of the “mental health question” from the Virginia bar application, O’Dwyer said.

In the opening remarks, to everyone’s surprise, the Virginia Board of Bar Examiners Secretary-Treasurer Catherine Hill mentioned the mental health question had been removed from the bar application, effective Jan. 1, O’Dwyer said. That was the only way, as far as O’Dwyer knows, that the change was officially announced.

O’Dwyer had been advocating for the question’s removal since last spring. At the time, The Collegian published an article about her letter-writing initiative to have the question removed. Now, a year later, O’Dwyer’s goal has been reached. The mental health question is dead.

The mental health question, question 17.2, was part of the Virginia bar application’s "character and fitness questionnaire."

The questionnaire is “basically your entire life’s history on a piece of paper,” said Kurt Lockwood, the law school’s Student Bar Association president. It makes up a large portion of the bar application. Even when bar applicants pass the bar exam, any problems with their “character and fitness” could prevent them from getting licenses.

The mental health question examined applicants’ mental health histories. It read: “Do you currently have any condition or impairment (including, but not limited to, a substance or alcohol use disorder, or a mental, emotional, or nervous disorder or condition), which in any way affects your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical, and professional manner? ‘Currently’ means recently enough so that the condition could reasonably have an impact on your ability to function as a practicing lawyer,” according to a statement the VBBE gave to media members addressing the media’s post-Summit inquiries.

In the past 20-30 years there has been a serious increase in mental health concerns among lawyers, O’Dwyer said, in part because the legal community’s awareness of mental health problems is growing. But at the same time, she said, “there is a growing amount of stress on law students.” Student debt, the 2008 recession, law firms cutting jobs and law schools’ cut-throat natures all contribute to that stress, she added.

As covered in The Collegian’s article last spring, the American Bar Association’s Resolution 105 cites a survey of law students. Forty-two percent of respondents indicated they needed help with mental health problems, according to the resolution, and of that group, only about half received counseling.

One important theme for improving mental health in the legal community is “eliminating the stigma associated with help-seeking behaviors,” according to the resolution. That is what O’Dwyer and many others sought to do by working to eliminate the mental health question.

The mental health question made law students nervous about what they had to disclose, law school Dean Wendy C. Perdue said. 

“That notion that you were sort of predicting what might be a problem made students understandably uneasy,” Perdue said.

In the letter O’Dwyer sent to the VBBE last May, she wrote that the mental health question, “according to the ABA study, has the effect of discouraging students from seeking treatment for any mental health issue because they know they must report it, and have it interpreted by legal professionals who have no medical training or expertise.”

Now, with the offending question gone, question 17.1 has been changed to ask, “Within the past five (5) years, have you exhibited any conduct or behavior that could call into question your ability to perform any of the obligations and responsibilities of a practicing lawyer in a competent, ethical and professional manner?” according to the VBBE’s statement.

The question as it is now will elicit information more relevant to the VBBE’s decision about an applicant’s character and fitness to practice law, law school Associate Dean of Students Alex Sklut said.

“It’s a big improvement,” Perdue said. The new question “focuses on behavior, not on conditions, and that’s a much more appropriate focus.”

Shortly after O’Dwyer sent her letter out last May, she said, Hill responded to her that the VBBE’s main concern was protecting the public, and the mental health question screened out applicants who had serious mental health issues that could affect their ability to practice law.

The recent change “very nicely addresses the public safety concerns about admitting people to the practice of law while allowing students to seek treatment,” O’Dwyer said.

Lockwood is among those taking the July bar exam, the first group who will not have to answer the old mental health question. He and other students he knows are deeply grateful for the change, Lockwood said.

“There’s just so much stigma centered around mental health and wellness, and I think overall we’re just trying to reduce that stigma," Lockwood said. "I think this change definitely contributes to that.”

After the VBBE responded to O’Dwyer’s letter with resistance, she began working with Lockwood and the UR Student Bar Association to fight for the mental health question’s removal, O’Dwyer said. Together, they drafted a petition addressing both the VBBE and the Supreme Court of Virginia. Lockwood contacted presidents of student bar associations in Virginia, he said. O’Dwyer contacted reporters, justices on the Supreme Court of Virginia and other members of the Virginian legal community, she said.

Sklut and Perdue were both important guides to the petition-writing process, O’Dwyer said.

“I wanted to be supportive of them,” Perdue said. “We care a lot about the mental health of our students, and anything that may discourage students from seeking the help they need is a concern for us.”

In the end, the VBBE removed the mental health question before O’Dwyer and her team had a chance to publish the petition.

O’Dwyer, Lockwood and the other students involved in the endeavor were part of a greater movement in Virginia’s legal field to attend to its members’ well-being, O’Dwyer said. Programming at the past two swearings-in for new lawyers has focused on mental health, and, at the Summit, the deans of all seven Virginia law schools spoke about their efforts to address mental health in their communities. 

“This is really becoming a serious issue,” O’Dwyer said. “It’s so great to see everyone really getting behind it. And now it feels like, with this question changed, the floodgates are open … This was the first big crack in a big barrier.”

Next year, UR’s Student Bar Association will host the Law Student Wellness Summit. Lockwood hopes that, through the summit and otherwise, the UR Student Bar Association will continue advocating for wellness, a topic that will remain relevant to the legal community, he said.

Despite Virginia’s positive trend, only 14 other states have made changes to their bar applications’ mental health queries as significant as the one the VBBE just made, according to the never-published petition.

And although a majority of UR law students will sit for the Virginia bar, Perdue said, some plan to practice elsewhere, so they will sit for bars in other states, states in which there may still be questions about applicants’ histories of mental health treatments and conditions.

Regardless, Perdue remains proud of the progress being made.

“They went about it in a productive way and a thoughtful way, and they were good lawyers,” she said. 

Contact contributor Addie Jo Quinlen at addie.quinlen@richmond.edu.