Part 8. Total Absence of Any Mental Illness or Addiction is NOT an Essential Qualification to PRACTICE Law in Kansas

Previous postings have shown that the total absence of any "major" mental disorder or any other disorder that "could if untreated affect" an applicant's ability to practice law is a FORMAL requirement for INITIAL licensure in Kansas. However, the following authorities show that the total absence of such a disorder is NOT a requirement to RETAIN a law license once it has been granted. Attorneys who manifest serious, but treatable, mental illnesses AFTER being admitted to the Bar are often permitted to continue to practice their profession while still under treatment for their conditions. These authorities are critical to two arguments for which authorities are cited later: 1) the applicability of the Americans with Disabilities Act and the Rehabilitation Act of 1973, because these authorities show that absolute freedom from such illnesses is NOT an "essential eligibility requirement" to PRACTICE law for purposes of these statutes; and 2) the equal protection argument that licensure regimes such as that which exist in Kansas create an irrational classification within the class of persons afflicted with these illnesses based solely on the dates on which the illnesses first manifested (i.e., “before” versus “after” licensure).

First, it should be noted that Kansas' Rules Relating to Discipline of Attorneys contain no requirement that an attorney who is diagnosed, AFTER admission to the Bar, with one of the conditions named in Questions 32 and 33 of the Application for Admission form, or with any other condition that "could if untreated" adversely affect his or her law practice, must surrender his or her license or self-report his or her condition to the disciplinary administrator. Moreover, while Rule 207 requires all attorneys to report a fellow attorney's professional misconduct, the rule does not intimate that diagnosis or treatment for a mental illness, in itself, is misconduct that must be reported. As long as a mental illness is successfully treated and does not result in any actual impairment in the attorney's ability to practice ethically, it need not be reported to anyone. Moreover, even when a mental illness causes an actual impairment, the preferred procedure is referral to the Kansas Lawyer Assistance Program established under Supreme Court Rule 206, not disbarment.

Kansas Supreme Court Rule 206: Lawyer Assistance Program, which shows that lawyers who, sometime after licensure, develop "physical or mental disabilities that result from disease, addiction, disorder, trauma, or age and who may be experiencing difficulties in their ability to perform their professional duties" may voluntarily seek assistance through the Kansas Lawyer Assistance Program on a totally confidential basis, without any risk of being referred for disciplinary action as a result of their condition. Paragraph (f)(3) of the rule also permits the Lawyer Assistance Program to assist lawyers and their firms "against whom disciplinary complaints are pending."


Furthermore, if an attorney is accused of misconduct (including misconduct in which a mental illness is involved), the Disciplinary Administrator must prove the case against that attorney by “clear and convincing evidence” before any disciplinary action will be taken. See, e.g., In re Rausch, 272 Kan. 308, 320, 32 P.3d 1181 (2001). It is noteworthy that this is precisely the same standard of proof that is placed upon an applicant for original licensure with a disability, in a proceeding in which the Disciplinary Administrator has no burden of proof whatever. Thus, an applicant with a stigmatized disability must prove “by clear and convincing evidence” that his or her disability will not “if untreated” “affect” his or her practice in any way, whereas, if a licensed attorney develops the very same disability after licensure and is drawn into question for specific misconduct, the Disciplinary Administrator will be required to prove the likely future effect of that disability “by clear and convincing evidence.”

Moreover, numerous published disciplinary opinions of the Kansas Supreme Court have demonstrated that Court’s willingness to permit attorneys who commit even fairly serious misconduct under the influence of a stigmatized mental illness, but who come to Court under treatment with a good report from their medical providers, to continue practicing law on condition of continued successful treatment. Thus, ,In re Herman, 254 Kan. 908, 869 P.2d 721 (1994) involved an attorney who developed bipolar disorder and committed some fairly serious disciplinary offenses, but was allowed to continue practicing law on probation while still under treatment (continuing treatment was a condition of his probation). Furthermore, he was released from probationary licensure, 266 Kan. 497, 974 P.2d 517 (1999) while still under treatment.

Similarly, In re Ketter, 268 Kan. 146, 992 P.2d 205 (1994) a case involving an attorney who developed obsessive compulsive disorder and was convicted of indecent exposure on several occasions, who was permitted to continue practicing law on probation with continued treatment a condition of probation. He was released from probationary licensure, 276 Kan. 2, 72 P.3d 552 (2003), while presumbly still under treatment for his chronic condition.

In re Holmberg, 281 Kan. 1218 (2006), an attorney against whom disciplinary charges were proved was allowed to continue practicing law on probation; the conditions of his probation included continued psychotherapy, random drug and alcohol testing, and regular Alcoholics Anonymous attendance, all of these monitored by the Kansas Lawyer Assistance Program. Likewise, In re Johanning, 279 Kan. 950 (2005), an attorney with clinical depression who committed disciplinary offenses was permitted to continue practicing law on probation; one condition of probation was that he submit to any testing, counseling or treatment for his depression recommended by the Kansas Lawyer Assistance Program.

The key point here, however, is that simply having or being diagnosed with a stigmatized disability that a new applicant would have to report in response to Questions 32 through 34 of the Application for Admission form is not even a reportable event, let alone a cause for disciplinary action, for an already-licensed attorney. Therefore, the total absence of such a disability is plainly NOT an “essential eligibility requirement” for the PRACTICE of law.