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Federal Judge Chastises Kentucky Bar Bureaucracy for “Medieval” Approach to Character and Fitness

Engraving depicting the Spanish Inquisition. The Spanish Inquisition, formally, the Tribunal of the Holy Office of the Inquisition, was a tribunal established in 1478 by Catholic Monarchs Ferdinand II of Aragon and Isabella I of Castile. It was intended to maintain Catholic orthodoxy in their kingdoms, and to replace the medieval inquisition which was under papal control. The Inquisition worked in large part to ensure the orthodoxy of recent converts, especially Jews, Muslims and others. Spain, circa 1560. (Photo by Fotosearch/Getty Images).
By Joseph Fawbush, Esq. on September 02, 2020 1:35 PM

Being bipolar is not a crime. According to a lawsuit against the Supreme Court of Kentucky and Kentucky's Character and Fitness Committee, however, the Kentucky "Bar Bureaucracy" treated a bipolar attorney as if it was. That was why, after a two-year battle to become licensed in Kentucky, an unnamed attorney sued the lawyers responsible for the intrusive questioning and unreasonable demands they forced on her to prove her fitness to practice law.

Lawyers Deciding Who Gets to Be a Lawyer

According to the lawsuit, filed in the U.S. District Court for the Western District of Kentucky, the state's Character and Fitness Committee required a lawyer (Jane Doe) who had recently moved to Kentucky from Florida to provide extensive medical history, including notes from her therapy sessions, in order to obtain a license to practice law in Kentucky. The Committee was worried about a bipolar diagnosis. Jane Doe had practiced law for 11 years without any issues and had been cooperative and compliant with Florida's own requirements.

Judge Walker did not disguise his disgust over the Character and Fitness Committee's conduct, comparing the current setup to a drug cartel. “Of course, unlike most cartels, this one is legal" Judge Walker lamented.

Judge Scolds "Bar Bureaucracy" Even as He Sides With Them

Judge Walker called out Yvette Hourigan, Director of the Kentucky Lawyer Assistance Program, in particular, writing that “Hourigan, who is not a doctor but plays one on the Capitol steps" attempted to force the attorney to comply with myriad unnecessary restrictions in a contract forced upon the attorney by the Character and Fitness Committee. Kentucky's Lawyer Assistance Program created and oversaw the contract. For example, Hourigan required Jane Doe to take unnecessary drug and alcohol tests despite never having a problem with either. Jane Doe's doctor, who recommended again and again that she be allowed to practice law, placed no restriction on her regarding alcohol consumption. This was just one example in an ongoing two-year saga of repeated demands.

However, Judge Walker still dismissed the case, despite his plain distaste for the Committee's conduct. Because they ultimately let Jane Doe practice law, she did not have standing to pursue prospective relief. Further, the Kentucky Supreme Court and Kentucky's Character and Fitness Committee had legislative and judicial immunity regarding their conduct.

Cruel and Counterproductive

The decision did not let the Kentucky "Bar Bureaucracy" off the hook, however. “This case is not only about Jane Doe. It's also about the lawyers who decide who else can be a lawyer," wrote Judge Walker. “One day," he concluded, “a law student will choose self-help over medical care because he worried a Character and Fitness Committee would use that information against him – as Kentucky did against Jane Doe. It's not a matter of if, but when."

Kudos to Judge Walker for calling out abusive and unnecessarily restrictive practices by Kentucky's Character and Fitness Committee and Lawyer Assistance Program. At best, Kentucky's "Bar Bureaucracy" showed a complete misunderstanding of mental health when they should know better. At worst, it appears to be a cynical way to lower attorney headcount for anyone deemed undesirable.

They may not have received any comeuppance other than a very public reprimand in this case, but as Judge Walker wrote, “there will be more applicants — and more lawsuits." At some point, “the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive."

Related Resources

Four Bold Requests for Attorney Licensing Requirements in the Wake of COVID-19 (FindLaw's Greedy Associates)

New York Removes Mental Health Question on Bar Application (FindLaw's Greedy Associates)

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