New Kansas Disciplinary Case Shows Asperger's Disorder does NOT Disqualify Attorney from CONTINUED Practice of Law

It will be recalled that, in the previous seven postings, I showed at some length that, under the new Kansas Rules Relating to Admission of Attorneys (promulgated July 1, 2009) and Petition for Admission to the Bar, original admission to the Kansas Bar requires absolute freedom from any mental or developmental disorder that even theoretically “could… if untreated” affect the practice of law. From my own personal experience, Asperger’s Disorder IS one of the disorders that is considered to absolutely disqualify an applicant from INITIALLY OBTAINING a license.

However, a recent published Kansas Bar disciplinary case clearly demonstrates that Asperger’s Disorder is NOT considered to permanently disqualify an attorney already licensed from CONTINUING to PRACTICE law, when it first manifests (or is first made known to the Court) AFTER licensure, even where it is implicated as contributing to a serious ethical violation. In In re Campbell, 287 Kan. 757, 199 P.3d 776 (2009), a public prosecutor improperly displayed photographs of a minor sexual assault victim to parents of other minors who had attended the same party where the assault occurred, in violation of K.S.A. 38-2310(c) and KRPC 8.4(g). The Court found he had abused the power of his office and done actual harm to the sexual assault victim, and suspended him from the practice of law for only six months (not indefinitely), despite evidence noted in the Court’s opinion (199 P.3d at 780) that he suffered from Asperger’s Disorder and Attention Deficit Disorder and that these conditions may have had a role in his misconduct.

Approximately a year later, Mr. Campbell applied for reinstatement. In re Campbell, 290 Kan. 504, ___ P.3d ___ (May 19, 2010), the disciplinary panel recommended conditional reinstatement, and the Court agreed, despite the finding that “the petitioner suffers from Asperger’s Disorder for which he has been undergoing some type of therapy since approximately 1993, and further, that while the petitioner has been receiving therapy to assist him in developing appropriate social relationships and in understanding social clues, Asperger’s Disorder is a permanent condition and the petitioner will always process information differently than individuals who do not have the disorder.” (290 Kan. at 504).

So, the Court recognizes that Asperger’s Disorder is a permanent condition and will always make Mr. Campbell somewhat “different,” but agrees with him that he should be allowed to resume practice under his license (which was only temporarily suspended), even though his condition will NEVER be “cured” and completely go away. This is in line with the Court’s DISCIPLINARY rules and case law which are relatively lenient toward mental illnesses that manifest in attorneys AFTER licensure. (See Part 8. Total Absence of Any Mental Illness or Addiction is NOT an Essential Qualification to PRACTICE Law in Kansas for many more examples.)

By contrast, the Court insists that applicants for initial licensure must be completely “normal,” and that any past conditions that “could” interfere with the practice of law must be completely gone. See, particularly, Part 6. Must Reject Any Disability that “Could, If Untreated” Affect Law Practice, for a discussion of the relevant rules and of my case—showing that my application was denied in 2007 on the grounds that I had not shown my Asperger’s Disorder to be completely gone and a showing that the new 2009 admission rules prescribe this result for all future cases.

Moreover, this disparity in treatment between persons with mental or developmental disorders in general (and now Asperger’s Disorder in particular), based on whether their disease manifested BEFORE or AFTER licensure, violates both the Equal Protection clause of the Fourteenth Amendment and the Americans with Disabilities Act, as explained in the entries linked in this sentence.