The Department of Justice issued a Letter of Findings to the Tennessee Supreme Court determining that two attorney regulatory agencies in Tennessee discriminated against lawyers applying to be admitted to the practice of law for undergoing treatment for opioid addiction. The DOJ found that the Tennessee Board of Law Examiners (TBLE) and the Tennessee Lawyers Assistance Program (TLAP) violated Title II of the Americans With Disabilities Act.
The DOJ conducted the investigation in response to complaints from two attorney applicants, known as D.S. and C.B. D.S. has since identified himself to the press as Derek Scott, who passed the Tennessee State Bar exam in 2021. The DOJ concluded that two aspects of the agencies’ conduct violated the ADA: “(1) subjecting bar applicants to burdensome supplemental investigations triggered by their status or treatment for a substance use disorder; and (2) excluding them or implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ diagnosis of or treatment for a substance use or mental health disorder.”
The letter said that Scott became addicted to opioids in the 1990s, and began receiving treatment for the disorder in 2012. His physician prescribed him buprenorphine, which he has been taking ever since. When he applied for admission to the Board of Professional Responsibility to practice law in Tennessee, he disclosed that charges were filed against him when he was addicted to the opioids, which was before he began treatment. The charges were later dropped. Subsequently, “[t]he TBLE interviewer recommended D.S. for admission to the bar, with reservations, and recommended a TLAP evaluation or a practice monitor.”
Scott was required to submit to an evaluation at a facility that the TLAP approved of at his own cost. None of the locations were in Tennessee, so Scott drove to Louisiana for a multi-day assessment that cost $2,000. “The psychological testing showed no signs of cognitive impairment, nor was any evidence of decreased concentration noted by the examining psychiatrist,” the DOJ said. “The drug testing was negative for all drugs tested, including cannabinoids, except for buprenorphine, for which D.S. had a valid prescription.”
Despite the positive results of the exam, the TLAP recommended that he “sign a five-year monitoring contract with TLAP” and complete “a TLAP approved long term inpatient treatment program experienced in treating chemically dependent lawyers.” The cost of the treatment at the Louisiana location would be $30,000 and would take six months.
Scott’s physician “emphatically” disagreed with the recommendation, because he did not believe Scott needed to be weaned off the treatment medication.
Scott was fired from his job in November 2021 due to failing to be admitted to the state bar.
He attempted to negotiate with the TLAP, but they only agreed to pay for half of his treatment and give him credit for the $2,000 he paid for the assessment. He also tried to negotiate with the Louisiana clinic, but they refused to change their terms, which required him to stop taking the treatment medication. The TLAP allowed him to go for a second assessment with a Tennessee clinic at Vanderbilt University. Although that assessment also produced positive results, the clinic refused to state that he was fit to practice law unless he stopped taking the treatment medication.
Only after the DOJ informed the state that it was “investigating complaints that the TBLE and TLAP may have violated the ADA in connection with applicants who have been diagnosed with or treated for opioid use disorder or mental health conditions and made a request for information” did the TBLE finally admit Scott to practice law, ignoring the recommendations from the TLAP.
C.B. underwent a similar experience, the DOJ said. He “successfully completed an inpatient rehabilitation program in 2010.” However, between 2010 and 2015 he was arrested several times due to abusing Xanax and alcohol. “[A]s a condition of probation, he attended an inpatient substance abuse rehabilitation program which he successfully completed.” However, again the TBLE interviewer referred him to the TLAP for an evaluation.
Just like in Scott’s situation, the TLAP required C.B. to obtain an assessment from a clinic. C.B. was living in Ohio, but they did not provide any locations in Ohio. C.B. obtained a loan of $4,800 to cover part of the cost of a $6,000 overnight treatment at Vanderbilt University. The clinic made several recommendations, “including that C.B. should get mental health treatment for anxiety and depression, that he should complete an abstinence-based intensive outpatient program for substance use management approved by TLAP, that he should get physical therapy for pain management, that he should quit smoking, and that he should get his cholesterol checked and mitigate the risk of a cardiovascular event. TLAP subsequently required C.B. to enter an outpatient drug treatment program for four days a week.”
When C.B. told the firm he was working for that he would need to attend the drug treatment program, they fired him. He moved to Tennessee to enter the drug treatment program at a clinic in Nashville at his own expense. The TLAP told him he would only be permitted to practice law if he fulfilled numerous requirements, including no treatment medications, no alcohol, random drug testing ($88 per test), and attending therapy sessions, with the results released to the TLAP.
C.B.’s therapist objected to releasing the records, but the TLAP would not agree, so his therapist quit treating him.
In regards to Scott, the DOJ found that the “TBLE and TLAP discriminated against D.S. in Tennessee’s attorney licensing program on the basis of his disability when they subjected him to additional, burdensome examinations based on his use of lawfully prescribed medication for his OUD and forced him to choose between his law license or continued treatment as prescribed as necessary by his treating physician. … Because the withholding of a law license was based on D.S.’s disability and his treatment for his disability, TBLE and TLAP discriminated against him in violation of the ADA.”
As for C.B., the DOJ said, “C.B. was similarly subjected to restrictions and conditions on his ability to obtain a law license, due to his disability, even though there was no evidence that he was unable to meet the bar admission standards. … Because the restrictions on C.B.’s law license were based on his actual or perceived substance use disorder and not on any current inability to meet the bar’s admissions standards, TBLE and TLAP discriminated against C.B. in violation of the ADA.”
The DOJ said the agencies’ decisions were “based on stigma and stereotypes about … [the two applicants’] prescribed treatment.” The decisions were contrary to some of the medical providers who had treated the men and even “their own providers’ conclusions that D.S.’s treatment had been successful and caused no deficiencies relevant to the practice of law.” The DOJ was also critical that the applicants lost their jobs over the treatment.
The DOJ cited 28 C.F.R. § 35.139(b) of the ADA as authority for their findings. It provides, “In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.”
The letter concluded by recommending corrective measures. One was to prohibit the TLAP and the TBLE from putting restrictions on attorneys taking substance abuse treatment medications. Another measure would prohibit the agencies from inquiring into “an applicant’s diagnosis of or treatment or medication for a substance use disorder or mental health disorder unless the applicant voluntarily discloses this information to explain conduct or behavior that may otherwise warrant denial of admission,” and such inquiries must be “narrowly tailored.” A final recommendation was to train personnel on the ADA.
The DOJ warned that if the agencies do not comply, the DOJ “may take appropriate action.”
State bars and associated attorney regulatory agencies have come under fire in recent years for their heavy-handed treatment of attorneys. They have disciplined conservative attorneys in particular, including disbarring Donald Trump’s former attorney and constitutional scholar John Eastman, for filing lawsuits challenging illegal election activity.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Tennessee Supreme Court” by Tennessee Board of Law Examiners.
DOJ doesn’t investigate anything. They have pre-determined results.
Sure do not want to be represented in any way, personal of governmental, by those who fall into the categories discussed in the article.