Bar-application process changing in response to Madison lawyer’s proposal

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The state’s bar-application process is changing in response to a Madison lawyer’s complaint that it had not complied with the Americans with Disabilities Act.

The change concerns the application for character and fitness certification that lawyers and law students now must file with the state Board of Bar Examiners if they want to practice in Wisconsin. In a rules petition filed in December, the Madison lawyer Aaron Loudenslager contended that Wisconsin’s character and fitness process is out of compliance with the ADA.

In particular, Loudenslager raised doubts about an application question that could lead someone to disclose a mental-health disorder and subsequent treatment. If an applicant did disclose such a disorder, Loudenslager noted, he would be subject to more scrutiny than someone who did not.

The justices dismissed Loudenslager’s petition in February but ordered the BBE to take up the matter, directing the agency to work with the Wisconsin DOJ and file a written report advising the court on whether its rules and procedures should be revised.

BBE filed that report on Thursday after convening a subcommittee to review the matter and approving in July all seven of that committee’s recommendations for changes to the bar application as well as the BBE’s rules and procedures. Those changes, according to the report, will ensure the bar-application process complies with the ADA.

The changes include:

• Adding this question to the bar application questionnaire and affidavit: Within the past five years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical and professional manner?
• Amending the BBE’s rules to add language that clarifies that when an applicant uses mental impairment or substance abuse as an explanation for questionable behavior, that is grounds for an inquiry involving his fitness to practice.
• When necessary, the BBE will pay for independent medical evaluations to help the board ascertain an applicant’s fitness to practice.

Loudenslager wrote in a statement issued on Friday that he is pleased with the report and that the changes ensure that the BBE will pay attention to applicants’ conduct rather than their mental-health status when deciding whether applicants have the character and fitness to practice law in the state.

“It’s a great day for upholding the dignity of those with mental disorders,” he wrote. “But as great as this day is in that regard, it is important to not miss the forest for the trees. The only reason that this day is a great day, is that previous days were not so good.”

Loudenslager noted that two of the questions the board will be deleting have been used for more than a decade.

He also noted that the BBE had opportunities to make changes as early as 2015, when he revoked the authorization he’d given the BBE to obtain his mental-health records during his own character-and-fitness investigation.

Loudenslager wrote that when he withdrew that authorization, he cited the settlement the U.S. Department of Justice reached in 2014 with the Louisiana Supreme Court over claims that the bar-application process there violated the ADA. The DOJ later made an announcement asking certain states to change their rules.

“The BBE should ask itself — and explain — why it took so long to amicably resolve something like this,” Loudenslager said.

The Wisconsin Supreme Court is expected to review the BBE’s report. Follow @erikastrebel