The Character and Fitness Questionnaire (“CFQ”) is the key document in the review of Bar applicants by the Supreme Court of New Jersey Committee on Character. Section 12 of the CFQ has long addressed Bar candidates’ mental health. The Committee on Character has properly been concerned about issues that might lead to the conclusion that a candidate lacks the “current character and fitness to practice law,” which is the standard that guides the Committee on Character.
But questions about Section 12 have long been raised. The concern has been that it may have swept too broadly and called for disclosure of issues that do not detract from character and fitness but might deter candidates from seeking Bar admission because they did not want to expose such personal matters to scrutiny. My own practice before the Supreme Court of New Jersey Committee on Character has involved some candidates for whom Section 12 posed challenges.
Today, the Supreme Court announced that it has revised the CFQ to focus on “a candidate’s past conduct and behavior as opposed to mental health treatment or diagnosis.” Both Section 12 and a preamble to it have been extensively rewritten.
The preamble now states:
“Section 12 addresses recent conduct or behavior that could call into question a candidate’s ability to practice law in a competent, ethical, and professional manner, meaning in compliance with the Rules of Professional Conduct, the Rules of Court, and applicable authority.
Section 12’s inquiry includes, but is not limited to, conduct and behavior related to a candidate’s mental health, addiction or dependency, or other condition. purpose of these questions is to determine the current fitness of an applicant to practice law. To that end, a candidate need not disclose any conduct or behavior related to a mental health diagnosis, addiction, or condition that is or has been treated effectively under the care of a health care provider or other medical professional, or through consistent participation in an established treatment program.
The Supreme Court and the Committee on Character encourage candidates to seek support and treatment, and candidates should not view the attorney licensure process as a deterrent to pursue treatment. The Committee regularly recommends licensing of individuals who have demonstrated personal responsibility and maturity in dealing with mental health, addiction, and dependency matters.
This guidance applies to Question 12A. Candidates must provide full and complete responses to all other questions in the Character and Fitness Questionnaire, including Section 8B (regarding criminal charges).”
Question 12, which consists of Parts A and B, now reads:
“A. Have you, within the last five (5) years, exhibited conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner? In responding, you need not disclose any conduct or behavior related to a mental health diagnosis, addiction to alcohol or drugs, or other condition that is or has been treated effectively by a health care provider or other medical professional, or through consistent participation in an established treatment program.
If you answered ‘yes’ to this question, furnish a thorough explanation in the space provided, and upload related documentation through your User Home Page after submitting the Character and Fitness Questionnaire on-line….
B. Within the past five (5) years, have you asserted any condition or impairment as a defense, in mitigation, or as an explanation for your conduct in the course of any inquiry, any investigation, or any administrative or judicial proceeding by an educational institution, government agency, professional organization, or licensing authority; or in connection with an employment disciplinary or termination procedure?
If you answered ‘yes’ to this question, furnish a thorough explanation in the space provided, and upload related documentation through your User Home Page after submitting the Character and Fitness Questionnaire on-line….”
The Supreme Court is to be commended for making these changes. The new language is much more fair to candidates, and it focuses on what truly matters without sacrificing the protection of the public that is a key purpose for the Committee on Character. The changes will go into effect on October 1, 2023 when applications open up for the next Bar examination.