Seven Questions — A Conversation with Justice G. Barry Anderson of Minnesota

This article originally appeared in The Bar Examiner print edition, Fall 2020 (Vol. 89, No. 1), pp. 76–78.

A Conversation with Justice G. Barry Anderson of Minnesota

Welcome to the inaugural Seven Questions column. In this column, we bring you interviews that explore seven questions chosen to elicit people’s unique perspectives on the bar admissions process.

In this inaugural column, Justice G. Barry Anderson of the Minnesota Supreme Court, who also serves as liaison justice to the Minnesota Board of Law Examiners, answers seven questions related to his role as liaison justice to the board.

1. How long have you served as liaison justice to the Minnesota Board of Law Examiners, and what are your responsibilities in that role?

I have been the liaison justice to the Minnesota Board of Law Examiners since 2013. The Court has many committees and boards that carry out the administrative duties of the Court, and usually a member of the Court also serves as the Court’s representative on the committee. A few of the liaison justice’s responsibilities include monitoring the process of admission of lawyers to the bar, responding to questions from the Board of Law Examiners, and attending the public portion of the board meetings.

But as a member of the Court, the liaison justice does not attend the confidential portion of the board meetings when individual applicant matters are discussed because the full Court will likely rule on challenges to board decisions that come to the Court. For example, a lawyer licensed in both New York and the United Kingdom, who did not have an ABA-accredited law degree, was denied admission by the board and appealed that decision to the Court. (And if you are wondering about the result, we overturned the decision of the board in that dispute. The full account of the facts and reasoning is set out in the decision, In re Murray, 821 N.W.2d 331 (Minn. 2012).) More recently, the Court has been heavily involved in pandemic-related issues involving the bar exam. Because board issues may eventually come before the Court, it’s important for the liaison justice to preserve distance from the board so that objectivity is maintained while still keeping the Court up to date on developments.

2. Do you think there is an important mindset that a liaison justice should bring to their position as liaison to a board of law examiners?

Each board and Court has culture and traditions regarding the duties and communication responsibilities of the liaison justice. The Minnesota model is that the liaison justice normally will not channel the discussions and recommendations in the direction of likely Court action. Rather, this is an opportunity for the liaison justice to gather background information from the board that will be helpful to the Court, and similarly, the liaison justice is often able to provide information about current Court initiatives and developments helpful to the board as it deliberates. A better way to describe this relationship is that the liaison justice is an intermediary between the Court and the board. Examples include trends in bar passage rates, interactions between the board and Minnesota’s three law schools, and developing issues around the rules the Court has adopted governing admission to the bar. The role of the liaison justice is more about listening and learning than it is about lecturing.

3. What obstacles might a liaison justice encounter when communicating with other members of the Court about the board’s admission decisions?

As everyone in the process knows, the board and staff execute policy as directed by the Court, even if some board members prefer a different direction to that policy. Similarly, particularly when the board is acting in an adjudicative role, the Court needs to wait for that dispute to be properly presented to the Court for decision. These basic principles are well understood and almost never present issues. More generally, problems arise when informal communication about problems and issues breaks down, and those problems can occur in either direction. It’s never a good day for the board when some member of the Court has been cornered and cross-examined by a lawyer about problems with the bar exam that the Court knew nothing about. Similarly, members of the board, and the director, get grumpy when told about a last-minute budget problem or a rule change that occurs without at least some discussion. Fortunately, we’ve had few problems along these lines.

Participation by the liaison justice in the NCBE Annual Bar Admissions Conference is also important for understanding and identifying important issues that are arising in bar admissions. I have attended all but one of those conferences since my appointment as liaison justice. Issues and culture vary among the states, of course, but one way to avoid problems in State X is to hear about the experience in State Y. It is particularly valuable not only to have other justices present for these events but also directors, board members, and staff members who administer the bar exam and have “boots-on-the-ground” experiences to relate. It turns out that practice and theory do not always coincide, and the conference is a great opportunity to be reminded of this eternal truth.

4. What was your greatest surprise as liaison?

The biggest eye-opener for me has been what I’ve learned, and continue to learn, from NCBE’s testing experts about the science of testing—how questions are written, why the exam is constructed as it is, and what makes it a valid exam. The goal of the bar admissions process is the protection of the public, but that goal can be lost in the whole process; learning from testing experts about the bar exam helps in explaining how the Court meets that goal and understanding that, although testing is not perfect, it is done scientifically. And the science of testing has improved dramatically since I took the exam in 1979.

5. When a board of law examiners determines that it has an administrative matter about which it needs guidance from the Court, what considerations should it keep in mind as it seeks that guidance?

We are a seven-member Court. Each member has multiple assignments to different committees—as either liaison or, in some cases, as chair of the committee or board. Each member also serves as a liaison justice to one of our 10 judicial districts, and that means that some members of the Court may have two district assignments. Depending on the justice and the issues facing the Court, there are also assignments to bar association functions, legislative matters (particularly during budget years), outreach activities, and, of course, the principal duty of the Court under our Constitution is to decide matters that come before it. The board and director need to understand that there are many administrative matters competing for the attention of the liaison justice. The liaison justice also needs to consider which matters can be handled by email and which issues need to be brought to the attention of colleagues on the Court and how to present those issues. Most of these decisions are judgment calls.

6. To what extent do considerations raised by other stakeholders in the bar admissions process, such as law schools and bar associations, enter into the issues typically addressed between the Court and the board?

Formally, there is no connection, but practically, there are many connections. A liaison justice regularly attends meetings with other stakeholders, and these stakeholders rely on the liaison justice to report those concerns to the Court. Law schools, for instance, may have concerns about how changes, such as an early bar exam option or adoption of the Uniform Bar Exam, will impact their students. Minnesota has three law schools, and the deans and other representatives of those schools meet annually with the Board of Law Examiners and the liaison justice. Issues discussed during these meetings include the character and fitness process, applicant candor in the application process, developments in the delivery of legal education, and the bar examination. The Court has a great relationship with our three law schools, and everyone involved seems to be working hard to keep up that relationship.

7. What do you think is the best advice you could give to a new bar administrator or new chair of a board of law examiners who wants to establish an effective relationship with the liaison justice and the Court?

The most important thing to keep in mind is communication, including early notice of problems or potential problems. Justices do not like surprises; it’s really not a good idea for the chair or director of the board to phone the justice the night before some big event and say there’s a problem. Tact is always a good idea. Suggesting to a liaison justice with a poor attendance record that the board would be willing to change its regular meeting date or time to accommodate the no doubt busy schedule of said justice is likely more effective, in the long term, than complaining to the Chief Justice about the attendance failures of one of the Chief’s colleagues. This runs the other way, too, of course. Finally, communication by email and memo is helpful, but on important issues, make a phone call or ask for an in-person meeting. The longer the memo, the more likely some nuance gets missed, so when it’s an important matter, ask to meet to discuss it.

Also, be aware of and understand the Court’s calendar. In Minnesota, for example, getting the liaison justice’s attention in the first half of the month (when we typically have oral argument) for anything less than a four-alarm fire is more difficult than getting his or her attention in the second half of the month.

Final Thoughts…

As a lawyer practicing law in Hutchinson, Minnesota, in the 1990s, I did not spend time thinking about bar admissions or administrative duties of the Court. Boards of law examiners should reach out to practicing lawyers about admission issues and the importance of the bar exam. They should also reach out to bar associations, local newspapers, and community groups and talk to the public—even if it means reaching 25, 50, or 75 people at a time. Most people don’t know about the board of law examiners, and there are lots of misconceptions about the bar exam. For instance, I was approached by a lawyer who told me that the bar exam wasn’t needed to protect the public. When I asked her why she thought that, she said, “I read it somewhere.” Indeed, much has been written about the bar exam and the future of the bar exam; some of that writing, positive and negative, is well-considered and thoughtful. A lot of it is uninformed. We have a duty to the public to make the conversation more about the former rather than the latter, to every extent possible.

If you had asked me when I was a practitioner why the exam is important, I don’t know that I would have been able to say why. The bar admissions community needs to be able to converse with the public about the importance of the bar admissions process, using real data and evidence of how the process protects the public, and engage the public about the bar exam and about the importance of the work that is done by boards of law examiners.

Finally, serving as the liaison justice to the Minnesota Board of Law Examiners is one of the more rewarding assignments I have had as a member of the Court.

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