BBX Fitness Task Force

The primary purpose of the Oregon State Board of Bar Examiners (BBX) is to safeguard the public by ensuring that bar applicants admitted to practice law in Oregon possess the requisite learning and ability, and character and fitness to practice law. Pursuant to Oregon Revised Statute (ORS) 9.210, the Oregon Supreme Court appoints members to the BBX to carry out the admissions functions of the Oregon State Bar (OSB), and authorizes the BBX to conduct bar examinations and to investigate the character and fitness of bar applicants. ORS 9.220(2) requires an applicant to demonstrate being of good moral character and fit to practice law.

The Oregon Supreme Court’s Rules for Admission of Attorneys (RFA) 1.05(4) defines “Fit to practice law” or “fitness” as an applicant demonstrating a level of conduct, mental health, judgment, and diligence that will result in adequate representation of the best interests of clients, including participation in the legal process according to the Oregon Rules of Professional Conduct.

Several recent studies have shown a reticence on the part of bar applicants to seeking treatment for mental health issues out of a concern that doing so will result in a denial of admission due to their condition. In reality, the number of applicants that are ultimately denied admission for any reason is a very small number. Of those who receive closer scrutiny, it is most typically triggered by the person’s criminal, employment, or financial issues. Moreover, with the option of conditional admission, those few with recent concerning behaviors who are already on a trajectory of recovery and treatment have a pathway to licensure. These studies emphasize the importance of seeking treatment as early as possible; in order to minimize the impact any untreated condition might have on the future ability to practice of law.

The BBX has determined that an independent body should re-evaluate the bar application inquiries about mental health and substance use and the screening of these fitness issues. It was also contemplated that the development of essential eligibility admission requirements might help shape these inquiries or, at least, help future applicants understand the abilities needed to become a licensed lawyer in the State of Oregon.

The BBX has appointed a Task Force to examine the following two topics by reviewing other jurisdictions’ treatment of them, identifying and developing a compilation of best practices based upon that review, and making recommendations to the BBX:

1. Essential Eligibility Requirements. The ABA Report recommends the adoption of essential eligibility requirements. Approximately 14 jurisdictions have such provisions in place. The ABA Report recommends requirements that affirmatively state the abilities needed to become a licensed lawyer. Their purpose is to provide the framework for determining whether an individual has the required abilities, with or without reasonable accommodations. The report opines that these requirements will help the applicant, the admissions authority, and the medical expert understand what is needed to demonstrate fitness to practice law.

2. Bar Application Fitness Inquiries. Oregon, consistent with a majority of states, utilizes the NCBE’s model application questions that screen for fitness issues on its application. A few have moved away from asking any questions related to mental health or behavioral conditions. These jurisdictions have adopted a more resource intensive approach to investigate and screen the backgrounds of each bar applicant.

If you have any questions, please contact Troy Wood at [email protected] or 503-431-6310.