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Not just bipolar disorder but character issues caused license denial

Concerns about an applicant's character, in addition to concerns about his mental health, were enough to justify the denial of his license application, the Supreme Court of South Dakota ruled December 18. The court dismissed the appeal of a bar applicant who claimed the state's Board of Bar Examiners had denied his license application because of his diagnosis of bipolar disease

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(In re: Application of Henry).

In March of 2009, the applicant, a law graduate named Jacob Henry, visited a counseling center at the University of South Dakota, where he was a law student, to seek help for anxiety and relationship problems. The symptoms described by Henry eventually led to a diagnosis of bipolar disorder; as a result, he began taking medication and seeing a counselor.

An individualized assessment of an applicant with a history of bipolar disorder is necessary to protect the public, the court said. Courts have routinely upheld bar application questions that ask whether an applicant has been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder within a specific time frame. The rationale for these inquiries is that these disorders may affect the person’s ability to practice law and show regard for ethical concerns, possibly posing a risk to clients who often entrust an attorney with their livelihood.

For reasons that are unclear, Henry eventually stopped using his medication and later discontinued his counseling. While he did not seem to have a recurrence of his problems, twice in early 2010 he was arrested for driving with a high blood alcohol content and pleaded guilty to a charge of driving under the influence.

In 2012, Henry applied to take the South Dakota bar exam. Shortly after completing the exam, he took advantage of a new health insurance policy, acquired through his employer, and visited a health clinic to follow up on his earlier problems and because he was experiencing of a period of depression.

Although an evaluation by the clinic determined that he did not likely suffer from bipolar disorder, a doctor gave Henry a prescription and recommended counseling. But, after determining that the level of his problems did not merit the trouble, Henry declined to see a counselor and discontinued the medication due to its negative side effects.

Unfortunately for Henry, the South Dakota Board of Bar Examiners did not approve of his decision to forego treatment. Despite the fact that Henry had passed the state bar exam, the board denied his application to the bar, noting concern over his decision not to seek treatment, and stating that it believed he had improperly withheld some of his mental health records and had disrespected board members. The board was also concerned over the lack of judgment that led to the DUI.

Henry appealed the judgment, claiming that the board had denied him entry to the bar based on his diagnosis for bipolar disorder—an action he claimed violated the Americans with Disabilities Act—and the case went to the state’s supreme court.

Because of the uncertainty of his diagnosis, the court found that Henry was not, in fact, disabled. But against the arguments of the board, it found that the ADA nevertheless could apply because the board seemed to perceive that he was bipolar.

However, whether or not the board believed Henry to be mentally ill soon became a moot point. The court denied his appeal, noting that the board had made its decision based on several concerns about Henry’s character. Although it had cited concern over his mental health, “at no point did the board state that Henry could not practice law in the State of South Dakota solely because of his diagnosis for bipolar disorder,” wrote Chief Justice David Gilbertson.

The factors used by the board—its belief that he withheld information and its concern over the lack of judgment showed by the two DUI arrests—”when viewed in totality, are significant.”

“The cumulative effect of Henry’s lack of candor, poor judgment, criminal record, and unreliability, paired with the unresolved issues regarding the status of Henry’s mental health,” Gilbertson concluded, “justify the Board’s decision.”