Kansas' new Rules Relating to Admission of Attorneys, promulgated July 1, 2009, when read in conjunction with its Petition for Admission form, not only authorize but actually require discrimination against applicants who present with certain stigmatized disabilities. Over the next eleven postings, I will prove this to be true by presenting a systematic exposition of the offending rules, explaining how, when read together, they in fact require this result. The ten postings after that will show that this aspect of the application form and new Rules violate the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973, and will suggest means of obtaining Federal court jurisdiction to test the rules. (Here is a link to a full index to all of the postings in this series.). Note that, while I believe I have already made too many enemies to ever be admitted to the Bar myself, I would be quite willing to join with a group of other plaintiffs, who hopefully have more sympathetic facts, in order to make official documents from my Bar application processes available as evidence of the actual application of the new Rules in a suit challenging the rules.
I will start with an analysis of the application form and the rules dealing with the obligation to disclose medical conditions on that form. I will include a link to the official Kansas Judicial Branch website for every rule or other official public document I discuss or quote. I will also include links to web pages (usually in .pdf format) out of my own case that I discuss, and I will carefully distinguish official public material from material out of my own case.
The most recent version of the "Application for Admission to the Bar of the State of Kansas by Written Examination" (a public document) was issued in July 2010. It replaced a "Petition for Admission" form issued in 2005 which was at the center of my personal case, but it is noteworthy that the text of the mental health questions (questions 32-34 on the 2005 form) and the accompanying instructions did not change at all. Questions 40 through 42 of the 2010 Application form, like questions 32 through 34 of its predecessor,require full disclosure of any current diagnosis of, or treatment within the last 5 years for, "any condition" which "if untreated could affect your ability to practice law," including specifically "bi-polar disorder, schizophrenia, paranoia or other psychotic disorder," in the following words:
40. Within the last five (5) years have you been diagnosed with, or have you been treated for, bi-polar disorder, schizophrenia, paranoia or other psychotic disorder?
41. Have you since attaining the age of eighteen or within the last five years, whichever is shorter, been admitted to a hospital or other facility for the treatment of bi-polar disorder, schizophrenia, paranoia or other psychotic disorder?
42. Do you currently have any condition or impairment (including, but not limited to, a mental, emotional or nervous disorder or condition) not disclosed above which, in any way, currently affects, or if untreated could affect, your ability to practice law.
(Application, p. 13, questions 40-42 (emphasis in original)).
Thus, it is clear that any past diagnosis of bipolar disorder, schizophrenia, or any other condition the Kansas courts would consider "psychotic," must be disclosed regardless of whether there has been treatment within the last five years, because these are life-long "chronic" conditions. Therefore, the "diagnosis" of any condition the Kansas courts believe to be "psychotic" would continue to exist even if medical experts believe treatment is no longer needed, and failure to disclose such a diagnosis at any time in the past would be quite dangerous under the rules discussed below. Similarly, any current or past diagnosis, within the past five years, of any other medical or psychiatric condition that merely "could," with any non-zero probability, "if untreated" "affect" "in any way" the applicant's "ability to practice law" must be disclosed. And the Board of Law Examiners is, in practical fact, the final judge of whether a condition has any slight possibility of affecting the ability to practice law, if left untreated, and the final arbiter of whether the applicant intended to deceive by not disclosing it. Very few serious conditions really can be said to have no chance of ever affecting the practice of law. Only perfect, or willingly dishonest, applicants need bother to apply.
The instructions that immediately precede questions 40 through 42 clarify that any "lack of candor" in self-identifying conditions or impairments that might in any way interfere with the practice of law if left untreated (even though currently successfully treated) will result in denial of licensure and that the burden of proving the complete absence of any present impairment as a result of such conditions or impairments is on the applicant:
The Board of Law Examiners does, on occasion, deny certification to applicants whose ability to function is impaired in a manner relevant to the practice of law at the time the licensing decision is made, or to applicants who demonstrate a lack of candor by their responses. This is consistent with the public purpose that underlies the licensing responsibilities assigned to bar admission agencies; further, the responsibility for demonstrating qualification to practice law is ordinarily assigned to the applicant.
(Petition, p. 13, instructions.)
The instructions to Questions 40 through 42 also require any applicant who answers "yes" to any of these questions to "provide the names and addresses of each hospital or other facility, the date(s) of the hospitalization(s), and the description of the treatment received," accompanied by "documentation" of these responses. Moreover, all applicants are required to submit three notarized copies of a standard "Authorization and Release" form as a part of their application package. (Instructions to Petition, pp. 2, 6 & 7). The standard "Kansas Board of Law Examiners Authorization and Release" form requests its recipients to release to the Board, inter alia, "such information or records, including documents… medical files and physician reports… and any other pertinent data so requested" by the Board. (See the Application's "Authorization and Release"). All of this medical information must be released without reservation, for consideration in detail by a Board composed entirely of medical laymen, there to be judged in accordance with the Board members' prejudices.
However, the new Rules make both non-disclosure and disclosure with attempted reservation very dangerous--grounds for both denial of an application and subsequent disbarment if it is later decided that a condition that was concealed creates some risk. New Rule 714 of the Kansas Rules Relating to Admission of Attorneys, effective July 1, 2009, emphasizes the importance of completely self-reporting in response to questions 40 through 42 any impairment that might conceivably interfere with the practice of law if treatment were discontinued:
(a) Each applicant for admission to the bar has a duty to be candid and to respond carefully and accurately to all questions in all phases of the application and admission process. Each applicant must respond fully to all inquiries.
(b) Failure to accurately and completely answer all questions on the application, failure to disclose requested information, lack of candor in any answer or falsification of any answer may result in denial of an application for admission to practice law in Kansas and may constitute grounds for revocation of the license to practice law granted to any person based thereon.
(Rules Relating to Admission of Attorneys, Rule 714.)
On the other hand, any attempt to qualify the standard "Authorization and Release" form will simply result in the application being deemed "defective" by the Clerk of Appellate Courts and returned to the applicant without further action. (Rules Relating to Admission of Attorneys, Rule 713).
Thus, any current or continuing past (chronic) diagnosis of a stigmatized psychological or neurological condition MUST be fully disclosed, regardless of current treatment status or effectiveness, and the language of the application form itself strongly suggests that the end result of the disclosure will be virtually automatic rejection.
As will be seen in future postings, both the substantive and the procedural provisions of the new Rules also strongly suggest this result.
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