Letter 221

April 13, 1999

DJ 204-8-60

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 examination.

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 (4^th 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 officials.

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 Arizona.

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 Committee possessed.

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 hearing.

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. >