April 13, 1999
xxxxx xxxxxxxx xxxx
xxxx xxxxxx xxx xxxxx
xxxxxx, xxxxxxx xxxxx
Dear Mr. xxxx:
This letter constitutes notice that the Department has
closed its investigation of the complaint that you filed against
the Committee on Character and Fitness of the Arizona Board of
Law Examiners ("the Committee"). Your complaint alleged that the
Committee had discriminated against you based on your mental
health treatment history in violation of title II of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12143.
We have closed our investigation of your complaint for the
reasons explained below. Please note that to promote clarity,
the "Fact" and "Analysis" portions of this letter (below) refer
to you in the third person (as "the complainant").
In June 1990, the complainant filed an application for
admission to the Arizona bar. In July 1990, the complainant took
the bar examination and passed the multistate portion, and, in
July 1991, he took and passed the essay portion of the
examination. In October 1991, the Committee notified the
complainant that it had decided to hold a formal hearing on his
application and had appointed Donald Daughton as Examiner.(1)
Mr. Daughton initiated an investigation and, in December, asked the complainant to arrange to be evaluated by a psychiatrist.
The complainant met with the psychiatrist, but declined to submit
to additional examinations at that time. In February 1992, Mr. Daughton advised the complainant that the Committee would not continue to process his application unless he cooperated in additional testing. In 1993, the complainant agreed (under
protest) to undergo additional testing, and the Committee
received the psychiatrist's and psychologist's reports in
September 1993. The complainant withdrew his application prior
to the hearing, which was scheduled for May 1996.(2)
The alleged violation of the ADA, therefore, is not a denial
of the complainant's application; the Committee never made a
decision on the application. Instead, the complainant alleged
that the Committee's decision to hold a formal hearing and the
appointment of a Examiner was a discriminatory imposition of a
requirement that it did not apply to applicants who did not have
disabilities. The complainant also alleged that the Committee
violated title II by conditioning further processing of his
application for a license to practice law on the complainant's
agreement to undergo a psychiatric examination. Further, the
complainant also challenged the manner and extent of the
The Rules of the Supreme Court of Arizona require that an
applicant for admission to practice law in Arizona bears the
burden of establishing to the satisfaction of the Committee on
Character and Fitness that he or she is possessed of good moral
character and the requisite fitness to practice law. Although
this Rule cannot be applied in a manner inconsistent with federal
law, the Rule is not inconsistent with the allocation of the
burden of proof under the ADA, i.e., that the plaintiff has the
burden of providing that he is qualified. E.g., Tyndall v.
National Education Centers, Inc., 31 F.3d 209, 213 (4th Cir.
1994). A State licensing board may not make inquiries into an
applicant's history of treatment for mental or emotional
inquiries or rely solely on such a history as evidence of
unfitness, but it may make inquiries into an applicant's past
conduct and may make decisions based on that conduct, provided
that those decisions are consistent with the ADA.
An individual with a disability is "qualified" for a license
if he or she meets the "essential eligibility requirements" for a
license. The phrase "essential eligibility requirements" is
necessarily non-specific, because of the range of situations in which it must be applied. The preamble to the American Bar Association's Annotated Model Rules of Professional Conduct (2d
Ed. 1992) discusses the responsibilities of a lawyer:
A lawyer is a representative of clients, and officer
of the legal system, and a public citizen having special
responsibility for the quality of justice.
A lawyer's conduct should conform to the requirements
of the law, both in professional service to clients and in
the lawyer's business and personal affairs. A lawyer should
use the law's procedures only for legitimate purposes and
not to harass or intimidate others. A lawyer should
demonstrate respect for the legal system and for those who
serve it, including judges, other lawyers, and public
Information in the complainant's application provided a
reasonable basis for the Committee to question the complainant's
ability and willingness to comply with the standards required for
a member of the bar. The complainant's application itself
reported that he had been subjected to disciplinary proceedings
on more than one occasion in high school, in college, in the
military, and in law school. The application also listed five
arrests on criminal charges, nine traffic violations, and
thirteen law suits in which the complainant had been a party.
These incidents raise legitimate questions about the
complainant's ability and willingness to conform his conduct to
the requirements of the legal profession. The numerous lawsuits
to which complainant had been a party suggest the possibility
that he had used the legal system to harass or intimidate others,
and the Committee was entitled to investigate that possibility.
Based on this information, the Committee had a reasonable
basis for determining that further inquiry in the form of a
hearing was necessary.
The complainant also alleged that the committee violated his
rights under the ADA by conditioning the continued processing of
the complainant's application upon his agreement to undergo
psychological examination and testing.(3) The specific limitations
on requiring medical examinations of employees and applicants for
employment under title I of the ADA (29 C.F.R. §§ 1630.13, 1630.14) do not apply directly under title II. Title II does, however, prohibit unnecessary and unreasonable medical inquiries, and the refusal to process an application unless the applicant submits to such inquiries may be tantamount to outright rejection of the application.
In this case, however, the complainant himself raised the
issue of mental illness by arguing that the incident of
plagiarism in law school must be disregarded because he "suffered
from a 'psychological abnormality or mental illness'" at the time
of the offense. Given this information, the Committee was
entitled to obtain additional information to determine whether
the complainant was "qualified." Thus, in this case, the
Committee did not violate title II by requiring a psychiatric
examination as a condition to further consideration of whether
the complainant is entitled to a license to practice law in
The complainant further alleges that his rights were
violated by intrusive personal questions during the course of the psychiatric examination. The examination was conducted by Dr. Barry Morenz, a University of Arizona College of Medicine
Department of Psychiatry faculty member. The Committee's letter
to Dr. Morenz asked him to "conduct such examinations of [the
complainant] as you deem appropriate to enable you to express an
opinion to the Committee as to [the complainant's] mental fitness
to engage in the active and continuous practice of law in
Arizona." There is no evidence that the Committee attempted to
instruct Dr. Morenz to ask particular questions or to obtain
specific types of personal information about the complainant.
This concludes the Department's review of this matter.
Please be advised that our decision to close the file in this
matter does not limit your private right of action under title
II. In your correspondence with the attorney who handled your
case, Sara Kaltenborn, who is no longer with the Department, you
have repeatedly indicated your interest in reviewing the files
sent to the Department by the Arizona Board of Law Examiners'
Committee on Character and Fitness. Those files are the property
of the Committee, and as such they have been duly returned
thereto. Requests to review those files should therefore be
directed to the Committee. In any event, as stated, the
Department's decision to close its investigation of your complaint was turned on information you provided us that was stated on your application, not on any other materials the
Sheila M. Foran
Disability Rights Section
cc: Louie Carrasco, Esq.
(Attorney of record for xxxxx xxxx)
1. Although this decision was made prior to the effective
date of title II (January 26, 1992), the Committee continued to
refuse to recommend the complainant's admission without a formal
2. The complainant was responsible for delays that
prevented the Committee from holding the hearing earlier.
3. The examinations were paid for by the Committee.