In reading what follows, it should be remembered that it applies only to applicants who have been "red flagged" as visibly imperfect during the Rule 721 (a)-(g) screening process. Most applicants will appear to have no relevant imperfections, and will be nearly automatically approved on the basis of their applications alone, without ever having to prove anything. But those who are "red flagged" during the initial screening because of a mental or emotional imperfection face a totally impossible burden.
New Rule 707(a) has previously been discussed in the context of the burden of proof. But it also states that the "fitness" that a "red-flagged" applicant must prove is fitness "to engage in the active and continuous practice of law." (New Rule 707(a).). The old Kansas Rules in effect until June 30, 2009, contained a similar requirement of proof, by clear and convincing evidence, of "mental and emotional fitness to engage in the active and continuous practice of law." (See, old Rules 702(a)(1) and 704(c), posted on my website).
Rule 707(d) of the new Rules, a section which has no parallel in the old Rules, then attempts to define mental and emotional fitness first in terms of the applicant’s current fitness, but also clarifies that any mental condition that merely "affects the applicant’s competence to practice law" is grounds for denial and that a prior illness (a "history of a disability," in ADA terms) is grounds for denial if it "indicates the existence” of such a present condition that merely "affects" the ability to practice law:
(d) Current mental and emotional fitness to engage in the active and continuous practice of law involves an assessment of mental and emotional health and condition as it affects the applicant’s competence to practice law and carry out duties to clients, courts, and the profession. An applicant may be of good moral character but unable to discharge his or her duties as an attorney due to a mental or emotional illness or condition. The fitness required is a present fitness, and a prior mental or emotional illness or condition is relevant when it indicates the existence of a present lack of fitness.
(kansas Rules Relating to Admission of Attorneys Rule 707(d), emphasis added.).
Thus, new Rule 707(d) strongly supports the implication of the language of the application form (as previously discussed in detail) that any medical or psychological condition that is still under treatment, and that merely "might" in any way "affect" the ability to practice law, "if untreated," is an adequate grounds to deny licensure, regardless of the success of the treatment or the objective medical prognosis of the applicant. Objective medical evidence is discounted when compared to the stereotypical fear that any mental condition that still requires treatment is not fully "cured" and might possibly recur. This fear is now explicitly written into the rules.
Rule 707(e)(1) of the new Rules, which also has no parallel in the old Rules, then clarifies even more strongly the point that any condition that merely "may impair" the applicant’s ability to practice is grounds for denial:
(e) In determining whether an applicant is currently mentally and emotionally fit to engage in the active and continuous practice of law, the Board shall consider:
(1) evidence of mental or emotional instability that may impair the applicant’s ability to practice law…
The facts from my own past licensure applications further clarify the meaning of two of the phrases used in the new Rules, namely: 1)what it means that any present or past condition that "may impair" or "might... affect" the practice of law is grounds for denial and 2)what it means that the applicant must be fit to engage in the "active and continuous practice of law."
The meaning of the "may impair" or "might affect" language in the new Rules is actually a formal codification in the Rules of an informal policy that has existed since sometime before 1989. For many years the application form has contained language similar to that contained in the present application form requiring the self-reporting of any condition that "affects, or if untreated could affect" the applicant's ability to practice law, but until July 1, 2009, the policy governing applicants who self-reported such a condition, though uniform, remained informal and unwritten. However, this informal policy was stated to me orally by the Disciplinary Administrator in both 1989 and 1992, as the Federal district court found in granting summary judgment against me in my 1994 ADA suit:
10. In the fall of 1989, the Disciplinary Administrator told Johnson that he believed the Kansas Supreme Court would not admit any applicant having a history of a serious mental disorder, including plaintiff, unless that applicant could prove his or her condition to be "cured"—i.e., could present psychiatric expert testimony that the condition had been asymptomatic without treatment for at least two years and was, with reasonable medical certainty, expected to continue asymptomatic without treatment indefinitely in the future.
11. On August 28, 1992, in an attempt to encourage Johnson to withdraw his application without a hearing, the Disciplinary Administrator reiterated his belief that it is the Kansas Supreme Court’s practice to require applicants who have a history of bipolar disorder to prove a "cure" as a prerequisite to admission.
Johnson v. State of Kansas, Kansas Supreme Court, 888 F.Supp. 1073, 1078, Court's Statement of Uncontroverted Facts, paragraphs 10 & 11 (D.Kan. 1995).
The Kansas Supreme Court never bothered to attempt to controvert that they had an unwritten policy of requiring applicants with histories of mental illness to prove a "cure," defined as stated above. They basically admitted that I had been told this was the policy. Having an unwritten policy was adequate for the purpose of discouraging and intimidating applicants the Disciplinary Administrator deemed unworthy, as was attempted in my case. An unwritten policy could also be enforced by the Board against any applicant who wasn't intimidated, as was actually done to me, TWICE. But, pursuant to the Rooker-Feldman doctrine, as applied by the courts in 1995 (a matter to be discussed at length in a later entry), an unwritten policy could not be challenged in Federal court simply because it was not formally promulgated in writing (as the Federal District Court held in Johnson, cited above). Now, with the promulgation of the new Rules, it is clear why the Kansas Supreme Court didn't try to controvert these facts about the unwritten policy—the requirement of a "cure" really was their policy all along. They just didn't bother to put it in writing until July 1, 2009.
With regard to the meaning of the requirement that an applicant must prove the ability to engage in the "active and continuous practice of law," the facts of my case show that what this requirement means is that, once challenged, an applicant must prove that he or she will be able to not only work full-time and continuously as an attorney, but will be able to work more hours than most attorneys actually work and work those hours under inhuman levels of stress continuously for long periods of time without exhibiting any psychological symptoms that "might" theoretically interfere with legal practice.
When I applied for admission in 1992, my psychiatrist testified and the Board found that my psychiatric condition was "in remission" and had not resulted in questionable behavior in the last 7 years, that I had been compliant with treatment, and that the likelihood of future problems was "low" if I continued treatment. Nevertheless, I was denied admission in 1992 largely because my continuing need for treatment was felt to show too much risk (this result represented an enforcement of the unwritten policy discussed above). When I came again before the Board in 2006, both my psychiatrist and the Board's retained independent forensic psychologist agreed that my condition was still in "full and stable remission" (and had been there since before 1992), and the Admissions Attorney stipulated that she had no evidence of any further improper behavior since 1985 (a period of 21 years). (See the supporting documents at My licensure application and ADA complaint documents.) However, the Board saw that I was still receiving treatment, and read a finding of excessive risk into the need for continued treatment. In addition, the Board was concerned that their retained psychologist could not testify that, if placed into law practice, I would be totally immune from the effects of stress, as they said in their formal Report to the Kansas Supreme Court:
9. Testimony from Mr. Weathers, Dr. Urdaneta, and Dr. Hough acknowledged the supportive and protected environment in which Mr. Johnson has worked as a paralegal. That environment does not parallel the stress placed on a practicing attorney. Dr. Urdaneta testified that stress exacerbates the applicant's symptoms. Dr. Hough testified that increased stress would affect his evaluation of protective and risk factors for the applicant.
10. Dr. Hough recommended that the applicant continue individual maintenance therapy with Dr. Urdaneta and seek group therapy, concluding "I think he [Mr. Johnson] is rehabilitated to the best that can be expected at this point. But I think it would be a mistake to assume that therefore he's free to walk out the door without ongoing monitoring and treatment."
(Board's 2007 Majority Report in my case.)
However, the dissenting member of the Board, near the beginning of his dissent, explained this rather cryptic pair of the Board Majority's findings as follows:
I further point out that the majority has created a standard which many successful applicants to take the Kansas bar would fail—i.e., a prediction that stress would at some point disable an applicant from the "active and continuous practice of law." The majority has ignored the counsel of the "expert witnesses" and engaged in pure speculation as to the effect of the stress of the "active and continuous practice of law" would have on the applicant.
(Board's 2007 Minority Dissenting Report in my case, pp. 1-2).
Later in the Dissenting Report, it was noted that the stress level in the office in which I work as a paralegal is sometimes "very high" (Minority Report, p.6), and then the effect of the licensure proceeding itself on my stress level was discussed as follows:
It must be recognized that the applicant represented himself throughout this proceeding and while he was not a "Super Lawyer" in terms of his trial skills, it was observed that he handled the matter adequately in what had to be an extremely stressful situation. Indeed, Dr. Hough testified that the applicant's preparations for this proceeding were a significant stressor and that he, Dr. Hough, saw no indication that the stressor had caused a relapse.
(Board's 2007 Minority Dissenting Report in my case, p 7).
The Dissent then goes on to explain that, apparently, the Majority had imposed a requirement that I must prove that no relapse would result from a "worst case scenario" with regard to stress:
Perhaps the conclusion about the stress on a practicing lawyer alluded to in the Majority Report , comes about as a result of describing a worst case scenario. That, of course, does not apply to all lawyers, and is not a standard by which we determine eligibility to take a bar examination.
The Dissent further explains in a footnote:
Consider and compare the wording of the question of Dr. Hough by one examiner who said "...I think we have to assume that a practitioner, as opposed to a paralegal, is going to be facing a number of these interactions with the public, period of high stress, sometimes, prolonged high stress, periods of sleep deprivation, sometimes prolonged deprivation. And would those circumstances or changes in circumstances potentially affect your assessment of a low threat of reoffense?" (Transcript of Hearing, p. 249) and "And you recognize that not all lawyers do the same thing. We're not all litigators. We're--some of us are maybe CPA's or somebody in the office. We have some people in our office that I would call nerds that we never let out, but they're great in the books and arguing things. You recognize that... And he would fit within some of those abilities wouldn't he?" (Transcript of Hearing, p. 261).
(Board's 2007 Minority Dissenting Report in my case, p. 7 and p. 7 fn 8.).
Thus, at least some of the Bar examiners in my case were willing to simply assume that, if admitted to the Bar, I would ignore medical advice and gravitate to the highest-stress litigator position in the entire state—and to declare me unfit to practice law at all, in any capacity, if I theoretically might collapse under the stresses of that worst-case position. The Dissent then concluded that this "worst case scenario" stress test was fundamentally unfair:
Of equal importance to this case, is the lack of evidence of what is required in the way of stress as an eligibility requirement for taking the bar. It is certainly unfair to use a worst case scenario to make that determination.
(Board's 2007 Minority Dissenting Report in my case, p 8).
The dissenting Board member in my 2006 application proceeding was right. It is quite unfair (not to mention in violation of the ADA) to use a "worst case" stress scenario to judge the eligibility of a license applicant with a disability. But that is exactly the test that has now been written into the formal, published Bar admission rules of the State of Kansas.
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