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High court issues order on petition to change bar-application question

The Wisconsin Supreme Court has issued an order involving a petition to change the procedures used to judge lawyers’ character and fitness for the profession.

Lawyers who want to practice in Wisconsin must, along with meeting other requirements, file an application for a character and fitness certification with state Board of Bar Examiners, which also investigates applicants’ character and fitness. The applicant must fill out a questionnaire and affidavit.

The Madison lawyer Aaron Loudenslager contended in a rules petition filed in December that Wisconsin’s character and fitness process does not comply with the Americans with Disabilities Act.

In particular, Loudenslager noted that one question on the BBE’s applicant questionnaire violated the rule because someone who provided an answer disclosing a mental-health disorder and subsequent treatment would be subject to more scrutiny than someone who did not.

Loudenslager’s contentions are not new. The U.S. Department of Justice, which enforces the ADA, reached a settlement in 2014 with the Louisiana Supreme Court over claims similar to Loudenslager’s. The DOJ went on to make an announcement asking certain states to change their rules. Many states reviewed theirs in response.

The American Bar Association separately issued a resolution in 2015 asking states across the country to eliminate questions about mental-health history, diagnoses or treatment and instead ask about behaviors that would impair a lawyer’s ability to practice competently, ethically and professionally.

In response to the petition, the BBE asked that it be allowed to weigh in on the matter. The BBE said it plans to review the rules to ensure that they comply with the ADA.

The justices voted last month to do just that, dismissing Loudenslager’s petition and referring the matter to the BBE.

The justices on Thursday issued an order laying out their reasons for the steps they had taken, noting that Loudenslager was asking for a change not to the high court’s rules, but to the BBE’s, which the court typically would not amend using the rule-petition process. It also noted that Loudenslager’s proposed amendment to the BBE’s rules does not appear to go far enough to alleviate his concerns.

The court argued that the rules should be considered in light of the DOJ’s announcement from 2014 and the ABA’s subsequent resolution.

In the order issued on Thursday, the court also directed the BBE to work with the state DOJ and file a written report advising the court about whether its rules, procedures and application questions should be changed. The court ordered that the report or a status report showing an expected completion date for the review be filed by July 1.

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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