#26659-a-DG

2013 S.D. 93

                             IN THE SUPREME COURT

                                   OF THE

                         STATE OF SOUTH DAKOTA

                                    ****



                          IN RE: APPLICATION OF
                         JACOB BENJAMIN HENRY



                                    ****




JACOB B. HENRY
Iowa City, Iowa                              Pro se applicant and appellant.


MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for appellee
                                             Board of Bar Examiners.


                                    ****




                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 4, 2013

                                             OPINION FILED 12/18/13
#26659

GILBERTSON, Chief Justice

[¶1.]         On December 4, 2012, the South Dakota Board of Bar Examiners (the

Board) conducted a formal hearing to determine whether Jacob Henry (Henry)

possessed the good moral character necessary for admission to practice law in South

Dakota. The Board recommended that Henry be denied admission to practice law

in the state. Pursuant to SDCL 16-16-16, Henry seeks our review of the Board’s

decision.

                           Facts and Procedural History

[¶2.]         Henry began attending the University of South Dakota School of Law

in September 2007. Henry testified that during his second year of law school, he

visited the University of South Dakota Student Counseling Center (the SCC) with

his girlfriend to resolve some relationship issues. 1 After his initial meeting, Henry

had an individual counseling session at the SCC on March 17, 2009. He reported

having auditory, visual, and tactile overstimulation, which affected his

relationships, schoolwork, and employment. He also reported experiencing some

anxiety and a period of five months in which he had experienced auditory

hallucinations.

[¶3.]         On March 24, 2009, Henry again visited the SCC. He reported that he

had experienced racing thoughts followed by a great deal of energy and then a

period of feeling down. Because of these reports, Henry took the Mini International

Neuropsychiatric Interview (MINI). The interview indicated that he “met criteria


1.      The Board did not receive a record of this session. Henry objected to
        providing the specifics of the session under the Health Insurance Portability
        and Accountability Act of 1996 (HIPAA) because it involved another patient.
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for both Major Depressive Episode and Manic Episode, making a diagnosis of

Bipolar Disorder most likely.” Henry was diagnosed with Bipolar II Disorder on

March 30, 2009.

[¶4.]        On April 7, 2009, Henry visited the Sanford Vermillion Clinic to

address his level of depression and anxiety. He was prescribed Symbyax, an

antidepressant mood stabilizer. On April 14, Henry informed his counselor at the

SCC that he was taking Symbyax. Two weeks later, however, Henry reported to his

SCC counselor that he had stopped taking Symbyax “due to financial constraints.”

He also reported that he was depressed, and since he had stopped taking

medication, his mood fluctuated frequently. However, at his hearing before the

Board, Henry testified that it was actually the “horrific” side effects of the

medication rather than “financial constraints” that caused him to discontinue

taking the medication.

[¶5.]        Henry completed his second year of law school in May 2009. That

summer he had an internship in Sioux City but continued to live in Vermillion. For

most of the summer, Henry discontinued counseling because he had not had “any

episodes” and he was no longer affected “in any way and didn’t really see the point

in wasting the counselor’s time.”

[¶6.]        Henry returned to the SCC on August 11, 2009. He testified that he

informed the SCC that his prescribed medication “seemed to be ‘stabilizing’ as he




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had not been as fatigued.” 2 This was Henry’s last counseling session of record while

at the University of South Dakota. 3

[¶7.]         On the evening of February 7, 2010, during his third year of law

school, Henry was in downtown Vermillion. Henry testified that after consuming

two alcoholic drinks, he drove home. He was stopped by law enforcement and

arrested for driving under the influence. He had a BAC of .09 and subsequently

pleaded guilty to the reduced charge of reckless driving in March 2010 and paid a

fine. Shortly thereafter, on April 5, 2010, Henry was drinking with some friends at

a house in Vermillion when he received a call from a friend requesting a ride home

from downtown Vermillion. Henry testified that the friend feared for her safety, so

he decided to give her a ride home. After picking up his friend, Henry was stopped

by law enforcement on the drive home. Because he had a BAC of .104, Henry was

arrested and charged with driving under the influence. Henry pleaded guilty to the

DUI on June 1, 2010, paid a fine, and lost his license for thirty days.

[¶8.]         Henry graduated from the University of South Dakota School of Law

in May 2010. Prior to his graduation, Henry had applied to take the July 2010 Iowa

bar examination. In light of his arrests, the Iowa Board of Bar Examiners (Iowa

Board) requested that Henry complete a Substance Use and Need for Treatment

evaluation. The evaluation determined that “Henry does not meet the criteria for a



2.      The Board indicated that there were no records relating to the nature or
        purpose of this prescription.

3.      Henry testified that the decision to terminate the counseling services was a
        mutual decision with his counselor. The Board could not find support for this
        in the counselor’s notes.
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substance related disorder and there is no indications of substance use interfering

with his ability to practice law.” Nevertheless, the Iowa Board did not allow Henry

to sit for the July exam because the two arrests were too recent to allow for his

admission to the Iowa bar.

[¶9.]        The Iowa Board also requested that Henry undergo a psychological

evaluation. Henry returned to the SCC to receive the evaluation in June 2010. The

evaluation indicated that Henry exhibited low levels of anxiety. It also indicated

that Henry “does not presently meet criteria for any psychological disorders.” It

stated that his “Bipolar II disorder is considered to be in full remission as it seems

that he has not experienced either a depressed or hypomanic episode in

approximately 1 year.” The evaluation concluded, “There is no evidence to suggest

any impairment in [Henry]’s ability to practice law in the state of Iowa due to

problems in his psychological functioning.”

[¶10.]       Henry subsequently applied to take the February 2011 Iowa bar exam.

This time the Iowa Board allowed him to sit for the exam. Henry received a passing

score on the February exam and was admitted to practice law in Iowa in April 2011.

[¶11.]       Following his admission to the Iowa bar, Henry sought admission to

the South Dakota bar. Henry took the South Dakota bar examination in July 2012.

Although he received a passing score on the exam, the Board determined that

Henry’s application did not meet Henry’s burden to prove by clear and convincing

evidence that he possessed the good moral character necessary for admission to the

South Dakota bar. As a result, the Board scheduled a hearing on the matter for

December 4, 2012.

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[¶12.]         Shortly after taking the South Dakota bar exam, Henry went to the

University of Iowa Hospitals and Clinic (the UIHC) in August 2012. Henry testified

that he had just acquired health insurance through his employer and wanted to

follow up on his bipolar disorder. At the time of the visit, Henry was experiencing

some depression. Additionally, he indicated that he had one episode of low mood

about once a year with each episode lasting about two weeks. Henry also thought

he might have a milder form of mania exhibited by racing thoughts and excessive

energy. The UIHC evaluation concluded that Henry had clear manic/hypomanic

symptoms in his lifetime, but it was “less likely for him to have bipolar disorder.”

Dr. Thisayakron at the UIHC recommended that Henry try medication and

counseling. He also prescribed Sertraline for anxiety and low mood. Henry was

expected to follow up in five to six weeks; however, Henry did not follow up with the

UIHC. Henry testified that he discontinued taking Sertraline due to “severe side-

effects.” He also indicated that he “clearly . . . did not have bipolar disorder or any

disorder affecting [his] quality of life or [his] abilities.” Thus, he “decided it was not

worth the money to continue.”

[¶13.]         Henry appeared before the Board on December 4, 2012. 4 After

meeting with Henry, the Board concluded that Henry did not meet his burden to

establish his good moral character by clear and convincing evidence. In reaching its

conclusion, the Board noted that Henry did not appear to be forthright in his

presentation to the Board. The Board believed that Henry withheld some of his

mental health records. It also expressed concern at Henry’s decisions to discontinue


4.       Henry was 30 years old at the time of the hearing.
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recommended treatments without consulting the prescribing physician. The Board

also noted periods of Henry’s life that were affected by his mental health condition.

Additionally, the Board believed that Henry showed disrespect to its members.

Finally, the Board stated that Henry’s DUIs evidenced poor judgment and a lack of

maturity. The Board concluded that when viewed in totality, the unanswered

questions about the status of Henry’s mental health combined with his lack of good

judgment, lack of candor, and unreliability demonstrated that he failed to meet his

burden to establish his good moral character under SDCL 16-16-2.2.

[¶14.]       Henry seeks review of the Board’s decision to this Court. Henry

argues that the Board violated Title II of the Americans with Disabilities Act by

denying him the ability to practice law in South Dakota due to his disability.

                                Standard of Review

[¶15.]       Henry seeks review of the Board’s decision under SDCL 16-16-16.

SDCL 16-16-16 allows an applicant who is aggrieved by a decision of the Board to

request that this Court review his or her application. We have noted, “The ability to

receive or reject an applicant for the bar is inherently a function of the judicial

system. This [C]ourt has the authority to oversee all applications for admission.”

In re Widdison, 539 N.W.2d 671, 675 (S.D. 1995) (quoting In re Shemonsky, 379

N.W.2d 316, 318 (S.D. 1985)). “[U]nder SDCL 16-16-16, this Court is the final

arbiter of the decisions of the Board of Bar Examiners, and as such, we can accept

or reject the Board’s conclusion.” Id. (citing Shemonsky, 379 N.W.2d at 318). “[W]e

perform a de novo review of both questions of law and fact in all bar admission

cases.” Id. But, “we will carefully consider the recommendations of the Board

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which had the opportunity to hear live witnesses.” Id. (citing In re Discipline of

Stanton, 446 N.W.2d 33, 35 (S.D. 1989)).

[¶16.]        Additionally, we do not take the decision to admit Henry to the bar in

Iowa as definitive in South Dakota. See In re Reciprocal Discipline of Rokahr, 2004

S.D. 66, ¶ 15, 681 N.W.2d 100, 106-07; see also Widdison, 539 N.W.2d at 675. This

is because:

              The [South Dakota] Supreme Court has “inherent power to
              supervise the conduct of attorneys who are its officers,” SDCL
              16-19-20, and the affirmative duty to govern the discipline of
              members of the bar. S.D. Const. art. V, § 12. A license to
              practice law in South Dakota “is a continuing proclamation by
              the Supreme Court that the holder is fit to be entrusted with
              professional and judicial matters and to aid in the
              administration of Justice.” SDCL 16-19-31. These are
              obligations that this Court takes “most seriously.” In re
              Discipline of Reynolds, 2009 S.D. 9, ¶ 49, 762 N.W.2d 341, 352.

In re Discipline of Tornow, 2013 S.D. 61, ¶ 38, 835 N.W.2d 912, 921-22.

[¶17.]        In determining whether to admit an individual to the South Dakota

bar, we must remain mindful of the fact that since 1928 we have reiterated:

              [T]he right to practice law is not in any proper sense of the word
              a right at all, but rather a matter of license and high privilege.
              Certainly, it is in no sense an absolute right. It is in the nature
              of a franchise to the enjoyment of which no one is admitted as a
              matter of right, but only upon proof of fitness and qualifications
              which must be maintained if the privilege is to continue in
              enjoyment.

In re Egan, 52 S.D. 394, 398, 218 N.W. 1, 2-3 (1928) (internal quotation marks

omitted); see also Widdison, 539 N.W.2d at 675.

                               Analysis and Decision

[¶18.]        Henry’s primary argument is that the Board’s decision to deny his

application to practice law was based on his diagnosis for bipolar disorder. Henry
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asserts that this was unlawful discrimination against him under Title II of the

Americans with Disabilities Act (ADA). 42 U.S.C. § 12101. Henry contends that he

is of good moral character and should be admitted to the South Dakota bar. To

address Henry’s claim, we first review the Board’s decision to deny Henry

admission. We then must decide whether the Board may consider Henry’s history

of bipolar disorder in determining whether to license him to practice law. 5

[¶19.]         The ADA is a federal civil rights statute designed to “provide a clear

and comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The ADA “forbids

discrimination against persons with disabilities in three major areas of public life:

employment, which is covered by Title I of the statute; public services, programs,

and activities, which are the subject of Title II; and public accommodations, which

are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17, 124 S. Ct. 1978,

1984, 158 L. Ed. 2d 820 (2004).

[¶20.]         Henry asserts that the Board violated Title II of the ADA, which

states:

               [N]o qualified individual with a disability shall, by reason of
               such disability, be excluded from participation in or be denied
               the benefits of the services, programs, or activities of a public
               entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Under Title II, a public entity includes “any State or local

government,” as well as “any department, agency, special purpose district, or other

instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1).


5.       Henry does not challenge whether the questions posed in the character and
         fitness portion of his bar application violate the ADA.
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Additionally, the ADA’s implementing regulations provide in part that “[a] public

entity may not administer a licensing or certification program in a manner that

subjects qualified individuals with disabilities to discrimination on the basis of

disability[.]” 28 C.F.R. § 35.130(b)(6); see also Ware v. Wyo. Bd. of Law Exam’rs, 973

F. Supp. 1339, 1353 (D. Wyo. 1997). Finally, we have acknowledged that Title II of

the ADA applies to the administration of the South Dakota Bar Exam. See In re

Reasonable Testing Accommodations of LaFleur, 2006 S.D. 86, 722 N.W.2d 559.

Thus, when choosing to license an individual to practice law in the State of South

Dakota, this Court and the Board must adhere to the ADA.

[¶21.]       To advance his claim of unlawful discrimination under the ADA, Henry

must first establish that he has a disability. Under the ADA, disability means “a

physical or mental impairment that substantially limits one or more major life

activities of such individual.” 42 U.S.C. § 12102(1)(a). The definition includes one

who is “regarded as having such an impairment.” 42 U.S.C § 12102(1)(c). On his

bar application, Henry disclosed that he had previously been diagnosed with bipolar

disorder. However, whether Henry is actually bipolar is unclear. The Board argues

that because Henry’s diagnosis is unclear, he is not disabled under the ADA. Henry

seems to agree that his diagnosis is uncertain. Meanwhile, Henry’s recent medical

records appear to confirm that Henry may not be bipolar. Thus, whether Henry

currently has a “mental impairment that substantially limits one or more major life




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activities” is unclear. See 42 U.S.C. § 12102(1)(a). Given this uncertainty, we

cannot conclude that Henry is disabled under the ADA. 6

[¶22.]         While Henry may not have a disability under the ADA, it does appear

that the Board at least perceived that Henry was bipolar. “An individual meets the

requirement of ‘being regarded as having such an impairment’ if the individual

establishes that he or she has been subjected to an action prohibited under this

chapter because of an actual or perceived physical or mental impairment whether or

not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §

12102(3)(a). Henry notes that his character and fitness hearing was prompted in

part by the indication on his bar application that he had suffered from bipolar

disorder in the past. Additionally, Henry highlights that the Board made a number

of inquiries into his mental health. Finally, our reading of the Board’s conclusions

reveals that the Board had concerns about the status of Henry’s mental health.

Thus, in deciding to hold a fitness hearing and in making its ultimate conclusion

not to admit Henry, the Board considered, at least in part, the possibility that

Henry may suffer from bipolar disorder. Therefore, it would appear that Henry was

at least perceived to have a disability. See ACLU of Ind. v. Individual Members of

the Ind. State Bd. of Law Exam’rs, 2011 WL 4387470, at *5 (S.D. Ind. Sept. 20,

2011).



6.       We note that there is some dispute as to whether bipolar disorder is a mental
         impairment that substantially limits one or more major life activities. See
         Hoeller v. Eaton Corp., 149 F.3d 621, 625 (7th Cir. 1998) (“Although his
         bipolar affective disorder was undoubtedly a difficult condition to live with,
         Hoeller has not proved that it limited him substantially in any major life
         activity.”).
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[¶23.]       If Henry can establish that he was perceived to have a disability, he

must also show that he was a “qualified individual.” See 42 U.S.C. § 12132. Title II

of the ADA defines “qualified individual” as:

             [A]n individual with a disability who, with or without
             reasonable modifications to rules, policies, or practices, the
             removal of architectural, communication, or transportation
             barriers, or the provision of auxiliary aids and services, meets
             the essential eligibility requirements for the receipt of services or
             the participation in programs or activities provided by a public
             entity.

42 U.S.C. § 12131(2) (emphasis added).

[¶24.]       Henry fails to articulate how he was a “qualified individual.” Beyond

passing the South Dakota bar exam, an applicant who wishes to practice law in

South Dakota has the burden of proving good moral character “by clear and

convincing evidence.” SDCL 16-16-2.2. The term “good moral character” in SDCL

16-16-2.1 “includes but is not limited to qualities of honesty, candor,

trustworthiness, diligence, reliability, observance of fiduciary and financial

responsibility, and respect for the rights of others and for the judicial process.”

Good moral character is an essential eligibility requirement to practice law in this

state. SDCL 16-16-2; Widdison, 539 N.W.2d at 678. Additionally, SDCL 16-16-2.3

provides the relevant conduct that may prompt further inquiry into an applicant’s

good moral character. Such conduct may include: unlawful conduct; making of false

statements, including omissions; misconduct in employment; acts involving

dishonesty; evidence of mental or emotional instability; and denial of admission to

the bar in another jurisdiction on character and fitness grounds. SDCL 16-16-2.3.



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“Any fact reflecting a deficiency of good moral character may constitute a basis for

denial of admission” to the bar. SDCL 16-16-2.1.

[¶25.]         The Board reached its decision to deny Henry’s admission based on a

number of factors in SDCL 16-16.2.3. Henry does not address this in his brief.

Instead, he argues that the Board based its decision on his prior diagnosis for

bipolar disorder. The Board’s findings do not support Henry’s claim. The Board

expressed concern that Henry provided incomplete health records and failed to

produce all requested information. 7 The Board also noted that Henry produced no

witnesses other than himself. Additionally, the Board highlighted Henry’s two

DUIs within two months, less than three years prior to its decision, which evidenced

poor judgment and a lack of maturity. The Board also found that Henry showed

disrespect toward it and its process. Finally, the Board expressed concern about

unresolved issues regarding the status of Henry’s mental health, as well as his

pattern of discontinuing treatment. At no point did the Board state that Henry

could not practice law in the State of South Dakota solely because of his diagnosis

for bipolar disorder. Rather, it appears that the Board considered a variety of

factors in recommending that Henry be denied admission to practice law in the




7.       There is some dispute about the records the Board was missing. Henry
         contends that he provided the Board with all that he reasonably could. The
         Board outlines a number of records it was missing. The Board was not
         provided a record of Henry’s first consultation, which may have involved a
         joint session with his girlfriend. The Board also was not provided records
         pertaining to the prescription Henry was taking in August 2009.

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state. 8 We agree that these factors, when viewed in totality, are significant. We

conclude that because of all these factors, Henry has not met his burden of showing

by clear and convincing evidence that he is fit to practice law in South Dakota.

Thus, Henry was not a “qualified individual” under the ADA.

[¶26.]         Henry also argues that the extent of the Board’s inquiry into his

mental health diagnosis along with the length of his character and fitness review

violated the ADA. Henry contends that his prior diagnosis for bipolar disorder

subjected him to a more thorough review process than other applicants. He asserts

that this process violated the ADA.

[¶27.]         The implementing regulations of the ADA state:

               A public entity shall not impose or apply eligibility criteria that
               screen out or tend to screen out an individual with a disability or
               any class of individuals with disabilities from fully and equally
               enjoying any service, program, or activity, unless such criteria
               can be shown to be necessary for the provision of the service,
               program, or activity being offered.

28 C.F.R. § 35.130(b)(8); see also ACLU of Ind., 2011 WL 4387470, at *6. Therefore,

a general approach that denies all applicants who indicate a history of bipolar

disorder on their bar application could violate the ADA. However, the Board did not

conduct a generalized approach in this case. This is not a case of a blanket

exclusion or inclusion. Instead, the Board conducted an individualized assessment

to determine whether Henry met the “essential eligibility requirements” to practice



8.       In addition to the Board’s conclusions, it is important to note that Henry was
         initially rejected by the Iowa Board due to concerns about his character.
         Henry also had a substantial number of littering and speeding violations
         from 2002-2010, which prompted questions from the Board at his hearing.

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law in the state. We conclude that the Board’s individualized assessment of Henry’s

history of bipolar disorder did not violate the ADA.

[¶28.]       We have long held, “A certificate of admission to the bar is a pilot’s

license which authorizes its possessor to assume full control of important affairs of

others and to guide and safeguard them when, without such assistance, they would

be helpless.” Reynolds, 2009 S.D. 9, ¶ 49, 762 N.W.2d at 352 (quoting Egan, 52 S.D.

at 402, 218 N.W. at 4). Therefore, an individualized assessment was necessary to

determine whether Henry met the “essential eligibility requirements” to practice

law in the state so as to protect the safety of future clients and the public.

Additionally, when “questions of public safety are involved, the determination of

whether an applicant meets ‘essential eligibility requirements’ involves

consideration of whether the individual with a disability poses a direct threat to the

health and safety of others.” Applicants v. Tex. State Bd. of Law Examr’s, 1994 WL

923404, at *6 (W.D. Tex. Nov. 11, 1994); see also 28 C.F.R. pt. 35, app. B. Whether

an individual poses a direct threat to the safety of others must be based on:

             [A]n individualized assessment, based on reasonable judgment
             that relies on current medical evidence or on the best available
             objective evidence, to determine: 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 will mitigate the risk.

28 C.F.R. pt. 35, app B; see also ACLU of Ind., 2011 WL 4387470, at *7.

[¶29.]       An individualized assessment of an applicant with a history of bipolar

disorder is necessary to protect the public. Courts have routinely upheld bar

application questions that ask whether an applicant has been treated for bipolar

disorder, schizophrenia, paranoia, or any other psychotic disorder within a specific
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timeframe. See ACLU of Ind., 2011 WL 4387470, at *8; O’Brien v. Va. Bd. of Bar

Exam’rs, 1998 WL 391019 (E.D. Va. Jan. 23, 1998) (upholding specific questions

inquiring about prior diagnosis for bipolar disorder); Applicants, 1994 WL 923404

(upholding a limited inquiry into whether an individual had been diagnosed for

bipolar disorder).

[¶30.]       The rationale for these inquiries is that “bipolar disorder,

schizophrenia, paranoia, and psychotic disorders are serious mental illnesses that

may affect a person’s ability to practice law.” Applicants, 1994 WL 923404, at *3;

see also ACLU of Ind., 2011 WL 4387470, at *8. For instance, a Manic Episode,

which can accompany bipolar disorder, may lead to the complete disregard of ethical

concerns, even by those who are typically very conscientious. Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 359, 382 (4th ed. 1994). One

can only imagine the risk this may pose to clients, who often entrust an attorney

with their livelihood, freedom, or even life. Clients suffer as much from

unintentional misconduct such as neglect as they would from the acts of an attorney

caused by an intentional “evil motive.” Reynolds, 2009 S.D. 9, ¶ 64, 762 N.W.2d at

355 (citing In re Discipline of Kintz, 351 N.W.2d 328, 331 (S.D. 1982)). Additionally,

“[t]he fact that a person may have experienced an episode of one of these mental

illnesses in the past but is not currently experiencing symptoms does not mean that

the person will not experience another episode in the future or that the person is

currently fit to practice law.” Applicants, 1994 WL 923404, at *3. Contrary to

Henry’s assertion, an individualized assessment of his diagnosis for bipolar disorder



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was necessary to evaluate whether his prior diagnosis may pose a threat to the

public in the future.

[¶31.]         Given that Henry indicated a prior diagnosis for bipolar disorder

within five years of his application, it was necessary for the Board to obtain a

complete picture of Henry’s mental health history to determine whether potential

symptoms of his bipolar disorder may affect his legal practice. It was also necessary

that the Board receive Henry’s records so that it could conduct an individual

assessment of Henry’s condition based on objective evidence from medical

professionals. The Board’s request was not unreasonable. As the Texas court

reasoned in Applicants:

               Although a past diagnosis of the mental illness will not
               necessarily predict the applicant’s future behavior, the mental
               health history is important to provide the Board with
               information regarding the applicant’s insight into his or her
               illness and degree of cooperation in controlling it through
               counseling and medication. In summary, inquiry into past
               diagnosis and treatment of the severe mental illnesses is
               necessary to provide the Board with the best information
               available with which to assess the functional capacity of the
               individual.

Id.; see also ACLU of Ind., 2011 WL 4387470, at *8. We find this reasoning

persuasive. Because Henry had been diagnosed with bipolar disorder less than five

years prior to seeking admission to practice law in South Dakota, it was reasonable

and necessary for the Board to conduct a thorough individual assessment to

determine whether his symptoms would make Henry unfit to practice law. 9



9.       We note that a time period of five years has been deemed a reasonable and
         necessary request for mental health records. See Applicants, 1994 WL
         923404, at *7.
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[¶32.]       The Board has a responsibility not just to the applicants, but also to

the bar and citizens of its state to make sure that the attorneys it licenses are fit to

practice. Widdison, 539 N.W.2d at 679. “Public confidence that the legal

profession, under the supervision of this Court, can keep its affairs in order must be

zealously maintained.” Id. (quoting In re Discipline of Tidball, 503 N.W.2d 850, 856

(S.D. 1993)). To maintain that public confidence, this Court must only license

attorneys that are emotionally and mentally fit to practice law. SDCL 16-16-

2.3(1)(j). “The same zeal to protect the public from the [unqualified] within the bar

must also be applied to the [unqualified] who seek to enter the bar.” Widdison, 539

N.W.2d at 679; see also In re Discipline of Laprath, 2003 S.D. 114, 670 N.W.2d 41.

“The Board would be derelict in its duty if it did not investigate the mental health of

prospective lawyers.” Applicants, 1994 WL 923404, at *9.

                                      Conclusion

[¶33.]       We conclude that Henry has not met his burden of proving good moral

character by clear and convincing evidence. The cumulative effect of Henry’s lack of

candor, poor judgment, criminal record, and unreliability, paired with the

unresolved issues regarding the status of Henry’s mental health, justify the Board’s

decision. Thus, we agree with the Board’s recommendation and note that Henry

may reapply at a future date with the understanding that the Board is allowed to

conduct an individual assessment into Henry’s fitness to practice law, which

includes a reasonable inquiry into Henry’s mental health.

[¶34.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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