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Proposed change ‘focuses on eliminating stigma’ from Bar rule

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Matt DietzSouth Florida disability rights attorney Matthew Dietz says the Board of Governors’ recent support of proposed amendments to Rule 1-3.2(b) sends an important message that the Bar is serious about destigmatizing mental illness.

The board voted unanimously at its meeting in Palm Beach to express support of the proposed amendments once the petition is filed, which Dietz and 50 Florida Bar members plan to file with the Florida Supreme Court in August.

The proposed amendments target a rule that authorizes the Bar to monitor consent agreements between Bar applicants and the Florida Board of Bar Examiners.

The proposed changes would have little or no effect on Bar procedures, but they are designed to eliminate outdated language in Rule 1-3.2(b) that refers to “conditionally admitted members” with “a prior history of drug, alcohol or psychological problems.”

Adopted in 1986, the rule is well meaning but its conditional language can be read as treating people with substance abuse and mental health issues differently, Dietz said.

“It was language that predated the ADA (Americans with Disabilities Act) and essentially, by the language itself, creates a stigma,” he said. “According to a recent YLD survey, over 60 percent of new lawyers have depression or anxiety, so that means everybody has ‘problems.’”

The proposal would, among other things, eliminate references to “conditional admission” and “psychological problems,” in the rule for membership classifications, and transfer the Bar’s monitoring responsibilities to a new rule, “Rule 3-4.8 Consent Agreements.”

“A lot of what the Bar has been doing lately focuses on eliminating stigma,” Dietz said. “But without focusing on our own rules, we don’t really hit the foundations.”

In March, Dietz and the FBBE settled a federal lawsuit filed on behalf of applicant Julius Hobbs, a U.S. military veteran with a history of alcohol misuse and depression.

Hobbs alleged that the FBBE’s refusal to accept a favorable report from his therapist, and its demand that he pay for an independent evaluation, violating his rights under the ADA.

U.S. District Judge Robert Hinkle found that Hobbs was covered by the ADA, but he also found that the FBBE had a reasonable concern.

After the settlement, the FBBE announced that in the future, when it asks applicants to undergo an independent evaluation for potential mental-health or substance-abuse issues, it will pay up to $3,000 to cover the costs.

FBBE Chair Scott Baena estimated that less than 0.5% of the nearly 4,000 annual applicants have been asked to get independent evaluations.

“The board has encouraged mental-health or substance-abuse treatment whenever appropriate for more than 20 years,” Baena said. “The board’s commitment to promoting wellness for applicants and future attorneys is stronger than ever.”

The proposed amendments to Florida Bar Rule 3-1.2(b) and transfer to Rule 3-4.8 includes language that states, “The Supreme Court of Florida may require that the member admitted under the consent agreement pay monitoring costs.”

Dietz said the language was added because requiring an applicant to pay monitoring costs isn’t always a violation of ADA rights.

“We provided discretion for the courts. . . because sometimes, monitoring may be something that is appropriate,” Dietz said.

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