IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

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1 IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE ) IN RE: PETITION FOR ADOPTION ) No. M SC-BLE-RL OF AMENDED TENNESSEE ) SUPREME COURT RULE 7, ) SECTION 2.02 ) ) COMMENT OF THE TENNESSEE BAR ASSOCIATION The Tennessee Bar Association ( TBA ), by and through its President-Elect, Daniel W. Van Horn; General Counsel, William L. Harbison; and Executive Director, Allan F. Ramsaur, files this comment opposing adoption of the proposed amendment ( Proposed Amendment ) to Tennessee Supreme Court Rule 7, Section 2.02 to permit an attorney who is a graduate of a U.S. law school which is not accredited or approved to apply to take the Tennessee bar examination if the lawyer is admitted in another U.S. jurisdiction with active practice in such jurisdiction for five (5) years preceding application.

2 BACKGROUND On October 12, 2010, this Court published for consideration a proposed amendment to Section 2.02 of Rule 7 of the Rules of the Supreme Court of Tennessee to permit an attorney who is a graduate of a U.S. law school which is not accredited or approved to apply to take the Tennessee bar examination if the lawyer is admitted in another U.S. jurisdiction with active practice in such jurisdiction for five (5) years preceding their application. The TBA Executive Committee took up this matter at its regularly scheduled November and December meetings and unanimously resolved to oppose the adoption of the recommendation. TBA President Sam Elliott was excused from participation in this matter at his request. While the TBA was not a party to the underlying petition, the record reflects that consideration of this amendment comes as a result of the petition filed in August I. CORE PRINCIPLES OF THE ORGANIZED BAR INCLUDE FOSTERING LEGAL EDUCATION, ENHANCEMENT OF THE PERFORMANCE OF THE LEGAL PROFESSION AND CULTIVATION OF PROFESSIONAL ETHICS 2

3 From its very founding in 1881, the TBA has had among its purposes and core principles, as stated in its Charter, to foster legal education, maintain the honor and dignity of the profession, enhance the performance of the profession, cultivate professional ethics In the early years, this mission was manifested through constant activities aimed at raising the standards required for education and training of the bar. As noted in A History of the Tennessee Supreme Court, Since the 1880s, the TBA had been asking the General Assembly to require a two-year course of legal study for all attorneys. In 1903, the General Assembly created the Board of Law Examiners and gave to this Court the power to prescribe rules and regulations to regulate the admission of persons to practice law. The Court adopted ever increasing educational requirements and standards for examination for candidates to the state bar. 1 It is through these efforts to establish educational and testing requirements that the honor and dignity of the legal profession have been fostered in Tennessee. The change in the educational requirements for applicants to sit for the Tennessee bar examination under this proposed rule would be a step backward. 1 James W. Ely and others, A History of the Tennessee Supreme Court. Page

4 II. EDUCATION, EXAMINATION AND CHARARCTER AND FITNESS ARE ALL ESSENTIAL ELEMENTS AS ADMISSION CRITERIA The standards for admission to the Tennessee bar rest upon a very firm foundation with three pillars. The first such pillar is the requirement for graduation from an ABA-accredited or Tennessee Supreme Court-approved law school. The second pillar of the foundation is examination. The third pillar of the foundation is the character and fitness investigation. These three foundational elements all provide important safeguards that lawyers admitted in Tennessee are competent, skillful and ethical. The grant of a law license is a high privilege that allows members of the profession to represent persons before the courts and assist people with other matters which involve every important aspect of their lives. Only through maintenance of this firm foundation can the Court assure the citizens of Tennessee that they are being adequately represented. Any imbalance in the three pillars must be corrected to avoid a tilt which compromises the integrity of the bar. Graduation from an ABA-accredited or Tennessee-approved law school means that through an extended course of study the graduate has performed at the requisite 4

5 level of proficiency all-the-while being observed and mentored by faculty. Requirements for accreditation and approval of law schools have continually undergone examination and revision to require a level of intellectual rigor, skill development and efforts to inculcate professional values through an extended course of study. Indeed this Court has in the past twenty (20) years enhanced the standards for approval of Tennessee approved law schools. It is widely believed that these efforts have had the desired effect. The grant of this petition and the adoption of this rule would put a greater emphasis on examination than on the adequacy of the legal education. The purpose of the examination, given by the Tennessee Board of Law Examiners as stated in Tennessee Supreme Court Rule 7, Section 4.01, is to enable applicants to demonstrate to the Board that they possess the knowledge, skills and abilities basic to competence in the profession, which are subject to testing. The passing grade or so called cut score for Tennessee applicants on the multi-state examination is set based upon the present requirement that a graduate has completed a proscribed course of study at an accredited or approved school. The essay elements test knowledge of basic knowledge of eight (8) subjects in Tennessee law. Other states, like California, which allow persons who are graduates of unapproved law 5

6 schools to sit for examination use a much higher threshold for passage of the bar examination. Grant of this petition would mean that the fundamental purpose of the Tennessee bar examination would change. The examination would need to explore more in depth the knowledge and skill of the applicant whose legal education had not been examined. III. ADOPTION OF THE PROPOSED RULE WOULD OPEN WIDE THE ADMISSION OF GRADUATES OF UNAPPROVED LAW SCHOOLS INCLUDING CORRESPONDENCE AND DISTANCE LEARNING SCHOOLS As detailed in the attached Exhibit A, Comprehensive Guide to Bar Admission Requirements 2010 produced by the National Conference of Bar Examiners and the American Bar Association Section of Legal Education and Admissions to the Bar. Thirty-seven (37) states, like Tennessee, only permit graduates from ABAaccredited or a non-aba-accredited school if the school is approved by a state authority like our Board of Law Examiners to sit for the exam. Indeed, twenty (20) states permit only graduates of ABA-accredited schools to take the bar. There are only fourteen (14) states that permit graduates from unapproved schools to sit for 6

7 the examination. Of the fourteen (14) states that step out of the mainstream, there are a wide variety of additional requirements. Through the adoption of the proposed rule, Tennessee would effectively incorporate by reference educational requirements from any state, which grants an opportunity to sit. This would include California, which has, perhaps, the most liberal requirements for permitted legal study in order to sit for examination. Graduates of conventional ABA-accredited, conventional state-approved, registered correspondence and even registered online law schools may sit for the California examination.as detailed in the attached Exhibit B, The 2009 Annual Statistical Compilation undertaken by the National Conference of Bar Examiners, California places heavy reliance upon its examination to set the threshold for admission. The chart on page 20 of the statistical review shows California s pass rate by Exam Takers and Passers from Non-ABA-Approved Law Schools in conventional schools is only sixteen percent (16%), from correspondence schools is sixteen percent (16%) and from online schools is twenty percent (20%). Thus, even if Tennessee Supreme Court Rule 7, Section 2.04 which provides that the Board of Law Examiners may not accept as any part of an applicant's legal education a correspondence course, the Court would be incorporating by 7

8 reference graduates from correspondence or online schools which have as low as a sixteen percent (16%) pass rate in California. IV. THE PROPOSED RULE WOULD IMPOSE ADDITIONAL SIGNIFICANT ADMINSTRATIVE RESPONSIBILITIES ON THE TENNESSEE SUPREME COURT AND THE BOARD OF LAW EXAMINERS Since the adoption of this rule would require fundamental restructuring of the admission process in Tennessee, the proposed rule would present substantial administrative burdens to this Court and to the Board of Law Examiners. First, the Court would need to examine all of its rules to determine whether the course of study at every law school in the country met its fundamental understanding of the basics of an adequate legal education. Second, the Board of Law Examiners and this Court would be required to review the structure and purposes of the bar examination and explore setting of the passing score and other standards for passage in Tennessee. 8

9 Finally, because of the huge numbers of potential applicants, the workload of the Board of Law Examiners and this Court in investigating character and fitness, which will remain the exclusive provence of the Court, could be enormous. Based upon the statistics found in Exhibit B, as many as 3,500 additional potential applicants could make their way into the application process in Tennessee. It is rather easy to extrapolate these numbers over the length of a legal career to see that the potential number of lawyers licensed in other jurisdictions with five (5) years of practice could number more than 100,000. V. SHOULD THE COURT DETERMINE TO PURSUE THE MAJOR REVISION OF ITS ADMISSION RULES AS PROPOSED, THE COURT SHOULD ORDER EXTENDED STUDY, HEARINGS AND COMMENT As noted in this comment, there are several major issues raised by this petition. The Minnesota Supreme Court recently undertook an examination of similar questions. That court ordered a year-long study by its Board of Law Examiners. That study included hearings throughout the state and testimony from representatives of the ABA Section on Legal Education and Admissions to the Bar 9

10 and the National Conference of Bar Examiners. Attached as Exhibit C is the Minnesota Board of Law Examiners Report and Recommendation: Legal Education Standard for Admission to the Minnesota Bar. While the TBA does not agree with all of the conclusions from that study, the report and recommendations found in Exhibit C do demonstrate the kind of careful, deliberate process necessary to consider such change. VI. TBA TAKES NO POSITION WITH RESPECT TO ADMISSION BY THE INDIVIDUAL WHO PETITIONED FOR THIS RULE CHANGE While the TBA is very fervent in its opposition to the proposed rule change, the TBA takes no position with respect to the appropriateness of the licensure of the individual who petitioned for this rule change. CONCLUSION For the reasons stated above, the proposed rule should not be adopted. 10

11 RESPECTFULLY SUBMITTED, By: /s/ by permission DANIEL W. VAN HORN (007012) President-Elect, Tennessee Bar Association Butler, Snow, O Mara, Stevens & Cannada 6075 Poplar Avenue, Suite 500 Memphis, Tennessee (901) By: /s/ by permission WILLIAM L. HARBISON (007012) General Counsel, Tennessee Bar Association Sherrard & Roe, PLC 424 Church Street, Suite 2000 Nashville, Tennessee (615)

12 By: ALLAN F. RAMSAUR (5764) Executive Director, Tennessee Bar Association Tennessee Bar Center 221 Fourth Avenue North, Suite 400 Nashville, Tennessee (615) CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing has been served upon the individuals and organizations identified in Exhibit D by regular U.S. Mail, postage prepaid within seven (7) days of filing with the Court. Allan F. Ramsaur 12