Judge Justin Walker on Bar Bureaucracies, Mental Illness, and More
From Friday’s decision in Doe v. Supreme Court of Kentucky; Judge Walker (known in part for the coronavirus / drive-in church services / Free Exercise Clause decision) is a federal judge in the Western District of Kentucky, but has been confirmed for the D.C. Circuit:
Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.” After graduation, lawyers suffer from depression at higher rates than non-lawyers. Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”
Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability [apparently depression or Bipolar I Disorder or both] made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented.
Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability.
This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer.
Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. The court, in turn, delegates that job to its Bar Bureaucracy:
- The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.
- The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral or unfit.
- The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about.
- The Kentucky Bar Association decides who gets to stay a lawyer.
- The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.
Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.
If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you join their club, it isn’t a good strategy to poke them i
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