Mitchell v. Board of Bar Examiners

Transcription

1 Mitchell v. Board of Bar Examiners Frederick Adolf Paola, M.D., J.D. Professor, Health Professions Division Medical Director, NSU PA Program SW FL And Affiliate Associate Professor of Medicine Division of Medical Ethics & Humanities USF College of Medicine

2 Facts Mitchell was a 2004 graduate of Concord Law School (Concord) Wholly online law school Not ABA approved, but authorized by the State of California to grant J.D. Mitchell takes and passes the California bar examination in 2004 He is a Massachusetts resident since 1981 and desires admission to the Massachusetts (MA) bar

3 Facts Authorized by Bureau for Private Postsecondary & Vocational Education, pursuant to California Code, to grant the degree of juris doctor. Concord is also accredited by the Distance Education and Training Council (DETC), a member of the Council for Higher Education Accreditation (CHEA) and the International Association of Law Schools (IALS).

4 Facts Paths to admission to MA bar Admission to MA bar by passing the MA bar examination SJC Rule 3:01, section 3.3 states: Each applicant shall have graduated with a degree of... juris doctor from a law school which, at the time of graduation, is approved by the [ABA] or is authorized by statute of the Commonwealth to grant the degree of... juris doctor. Admission to the bar on motion Attorneys who have attended non ABA approved law schools may be admitted after 5 years practice; but...

5 Rule 3:01, section 3 Section 3. Qualifications for Taking Bar Examination. 3.3 Law School. Each applicant shall have graduated with a degree of... juris doctor from a law school which, at the time of graduation, is approved by the [ABA] or is authorized by statute of the Commonwealth to grant the degree of... juris doctor. 3.4 Foreign Law Schools. Any applicant who received his legal education at a law school located outside of... the United States shall have... legal education equivalent, in the Board's opinion, to that provided in law schools approved by the [ABA]. Before permitting such an applicant to take the law examination, the Board in its discretion may, as a condition to such permission, require such applicant to take such further legal studies as the Board may designate at a law school approved by the [ABA].

6 Rule 3:01, section 6 Section 6. Admissions on Motion. 6.1 Attorneys Admitted in Other States. A person who has been admitted as an attorney of the highest judicial court of any State... of the United States may apply to the Supreme Judicial Court (SJC) for admission on motion as an attorney in this Commonwealth. The Board of Bar Examiners may, in its discretion, excuse the applicant from taking the regular law examination on the applicant's compliance with the following conditions: The applicant shall have been admitted in the other state... for at least five years prior to applying for admission in the Commonwealth The applicant shall have so engaged in the practice or teaching of law since the prior admission as to satisfy the Board of Bar Examiners of his or her good moral character and professional qualifications The applicant shall have... graduated from a law school which at the time of graduation was approved by the [ABA] or was authorized by a state statute to grant the degree of... juris doctor.

7 Rule 3:01, section 6 Section 6. Admissions on Motion. 6.2 Attorneys Admitted in Foreign Countries. A person who has been admitted or enrolled as an attorney of the highest judicial court of a foreign country may apply to the [SJC] to be admitted, without examination, as an attorney in this Commonwealth. The Board of Bar Examiners may, in its discretion, excuse the applicant from taking the regular law examination on compliance with the following conditions: The applicant's principal residence is in the Commonwealth of Massachusetts The applicant shall have been admitted in the foreign country for at least five years prior to applying for admission in the Commonwealth The applicant shall have... completed such legal education as, in the opinion of the Board of Bar Examiners, is equivalent to that provided in law schools approved by the [ABA] The applicant shall have so engaged in the practice or teaching of law since the prior admission as to satisfy the Board of Bar Examiners of his or her good moral characterand professional qualifications.

8 Facts Mitchell s problems re: admission by exam Concord not authorized by MA statute to grant JD Concord not ABA approved under Standards for Approval of Law Schools Standard 306: a law school may only allow 4 credits/term to be taught at a distance, and only 12 credits for an entire program Standard 701: a law school must have fixed facilities Standard 702: a law school must have a physical library

9 Facts Oct 2005: Mitchell seeks meeting with board discuss his desire to become a member of the MA bar; board informs Mitchell it has no power to waive... the Court s rules March 2006: Mitchell asks Court s Rules Committee for permission to sit for bar; majority of Committee votes to deny request May 2006: Mitchell asks Rules Committee to either reconsider or amend the rules to allow him to sit for the bar exam; majority of Committee votes not to reconsider, and solicits comments from Board of Bar Examiners re: his proposal to amend the rules

10 Facts June 2006: board recommends against amendment of rules December 2006: Rules Committee refers Mitchell s request to Justices of the SJC, who convene a Working Group to consider amendments to the rules regarding qualifications to take the bar examination Working Group recommends that amendments to rules not be adopted Court accepts recommendation but asks ABA to give attention to the issue of distance learning in legal education

11 Link to view oral argument html

12 Mitchell s arguments Mitchell challenges constitutionality of the rule as applied to him; alternatively... Mitchell seeks an amendment to the rule; or Mitchell seeks a waiver of the rule in his case

13 Mitchell s constitutional argument Mitchell argues that requiring graduation from an ABA approved law school as a condition to sitting for the MA bar violates equal protection guarantees of the MA Declaration of Rights Different law school educational requirements for attorneys seeking admission to MA bar by taking the bar exam and those seeking admission to the MA bar on motion Different law school educational requirements for attorneys trained in non ABA approved U.S. law schools and foreign law schools

14 Mitchell s rule change argument Proposed change to Rule 3:01, section Law School. Each applicant shall have graduated with a degree of bachelor of laws or juris doctor from a law school which, at the time of graduation, is approved by the American Bar Association or is authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor, except that an applicant who has been admitted as an attorney of the highest judicial court of any state, district or territory of the United States alternatively may have graduated from with a degree of... juris doctor from a law school which, at the time of graduation, was authorized by a state statute to grant the degree of... juris doctor.

15 Court s decision Court does not reach the constitutional argument, deciding the case on other grounds

16 Court s analysis The court decides to waive the law school accreditation requirement set out in SJC Rule 3:01, section 3.3 The court points out that it has equitable power to waive requirements of a court rule concerning admission to the bar Equity: Justice administered according to fairness as contrasted with the strictly formulated rules of common law. (Black s Law Dictionary, Abridged 6 th ed., p 374) Historically: courts of equity (courts of chancery) Merger of actions at law and actions in equity Equitable remedies: injunction, specific performance

17

18 Court s analysis 2 considerations Mitchell and his educational accomplishments in the field of law Mitchell s core course of study... substantively very similar to the core content offered at ABA approved law schools. Received awards for Outstanding achievement in three first year courses Best oral advocate and best brief in third year moot court exercise Graduated with highest honors as class valedictorian July 2004 Mitchell has passed California bar exam, and did so on first attempt Mitchell admitted to practice both in California and before the U.S. Court of Appeals for the First Circuit Mitchell represented himself (pro se) commendably

19 First Circuit

20 Court s analysis Mitchell s personal record not a sufficient reason in itself to waive the ABA approval requirement of S.J.C. Rule 3:01, section 3.3; if it were, the exception might well swallow the rule.

21 Court s analysis Second consideration recent announcement by ABA that it is undertaking a comprehensive review of its approval standards, including consideration of schools and programs using online distance learning [I]n view of the fact that an online legal education program such as Concord s cannot qualify for ABA approval under the current ABA standards and that the situation... may change in the reasonably near future, equitable considerations weigh in favor of granting Mitchell a waiver....

22 Court s conclusion Our determination that a waiver... Is appropriate for Mitchell is based wholly on the particular circumstances presented in his individual case.... We refer Mitchell s application to the board with instructions that he be allowed to sit for the bar examination.

23 Judge Ireland s dissent Appointed Associate Justice of the Supreme Judicial Court in 1997 The first African American to sit on this bench in its over three hundred year history Received his B.A. from Lincoln University, J.D. from Columbia University Law School, LL.M. from Harvard Law School, and Ph.D. in Law, Policy and Society from Northeastern University

24 Judge Ireland s dissent Disagrees with the majority s conclusion that, given the ABA s pending comprehensive review of schools and programs using online distance learning, equitable considerations weigh in favor of granting the plaintiff a waiver to sit for the Massachusetts bar examination. (Underlining added)

25 Judge Ireland s dissent Reasons for disagreeing ABA approval serves an important function (providing an objective method of determining quality of legal education), and judiciary is illequipped to conduct its own evaluation re: the quality of legal education

26 Judge Ireland s dissent Reasons for disagreeing Novak is distinguishable

27 Judge Ireland s dissent Finally, I conclude that the court s claim that it can limit its holding to the circumstances in this case is illusory.... I am concerned with the potential for having to assess large numbers of graduates from other online law schools.

28 Distance learning law schools in California* Abraham Lincoln University School of Law American Heritage University School of Law Aristotle University Institute of Law and Jurisprudence California School of Law Concord School of Law *Registered by Committee of Bar Examiners of the State Bar of California as unaccredited distance learning law schools, conducting instruction and providing interactive classes principally by technological means. See

29 Correspondence law schools in California* California Southern University (1978) MD Kirk School of Law (2005) Northwestern California University School of Law (1982) Oak Brook College of Law and Government Policy (1999?) University of Honolulu (1992) William Howard Taft University (1976) *Registered by the Committee of Bar Examiners of the State Bar of California as unaccredited correspondence law schools, conducting instruction principally by correspondence. See

30 Unaccredited fixed facility law schools in California* American College of Law Aristotle University College of Law Carlsbad Aristotle University College of Law Temecula California Southern Law School East Bay Law School Inland Valley University Irvine University College of Law John William University School of Law Larry H. Layton School of Law McMillan Academy School of Law Pacific Coast University School of Law Pacific West College of Law People s College of Law Silicon Valley University Law School University of Northern California University of San Luis Obispo School of Law Western Sierra Law School *Registered by the Committee of Bar Examiners of the State Bar of California as unaccredited fixed facility law schools, conducting instruction principally in physical classroom facilities. See

31 Consequences Increased likelihood that the Rules Committee will change the rule in Massachusetts Outcome may prod other states to allow graduates of online law schools to sit for their bar exams Outcome may increase the likelihood that the ABA will more favorably deal with distancelearning law schools in the future Outcome may portend a blurring of the line between distance learning and fixed facility law schools