Litigation Update

This article originally appeared in The Bar Examiner print edition, March 2017 (Vol. 86, No. 1), pp 63–68.

By Kellie R. Early and Jessica GladBar Examination

Foreign-educated attorneys; waiver of educational requirements; standard required to obtain waiver

Kelly v. Utah State Bar, 2017 WL 491966, 2017 UT 6 (UT 2017)

As a matter of first impression, the Utah Supreme Court considered the standard for evaluating petitions for waiver of the admission rules set forth in the Rules Governing the Utah State Bar.

In June 2000, petitioner James Kelly received an LL.B. from the University of Toronto Faculty of Law (Toronto Law), located in Toronto, Ontario, Canada. Toronto Law is accredited by the Law Society of Upper Canada and is considered to be the top-ranked law school in Canada. However, Toronto Law is not accredited by the American Bar Association (ABA) because it is a foreign law school.

After graduation, Kelly sat for and passed the Massachusetts bar examination. Unlike Utah, Massachusetts allows Toronto Law graduates to sit for the bar exam or apply for admission on motion on the same basis as graduates from ABA-approved law schools. Kelly was admitted to practice law in Massachusetts in January 2001, and eventually became a partner at Morse, Barnes-Brown & Pendleton P.C. (Morse), where he developed “a highly specialized legal practice focused on federal securities regulation and private investment fund formation.”

In July 2013, Kelly moved with his family to Utah, where he intended to seek admission to the Utah State Bar to help Morse open an office in Salt Lake City. Throughout 2013, Kelly worked from home for Morse clients who resided outside of Utah.

In March 2014, Kelly contacted the Utah State Bar about applying for admission and was told that he was required to meet the foreign law school graduate education requirements to be eligible to take the bar exam. Specifically, as an attorney applicant from a foreign law school, Kelly was required to satisfy rule 14-704(c)(5) of the Utah Rules Governing Bar Admission, which requires such an applicant

to establish by clear and convincing evidence that . . . he[ ] has completed with a minimum grade of “C” or its passing equivalent no less than 24 semester hours, or a corresponding amount in quarter hours, at an Approved Law School, within 24 consecutive months. The 24 semester hours must include no less than one course each in a core or survey course of constitutional law, civil procedure, criminal procedure or criminal law, legal ethics[,] and evidence.

Kelly also inquired about obtaining a waiver of this rule, but was told that only the Utah Supreme Court could grant a waiver and that he had to apply before he could petition the Court to request a waiver.

Kelly applied to take the Utah bar exam in the fall of 2015. The Utah State Bar denied his application because Kelly had not satisfied the foreign law school graduate education requirements set forth in rule 14-704(c)(5). Kelly subsequently petitioned the Utah Supreme Court to waive the education requirements.

As a preliminary matter, the Court noted that “we must articulate for the first time a standard for evaluating petitions for waiver of our admission rules” before evaluating the merits of Kelly’s petition.

“We have adopted the Utah Rules Governing Bar Admission as ‘predictable, objective standard[s]’ for measuring an applicant’s competence to practice law in this jurisdiction,” the Court explained. Generally, the Utah Supreme Court strictly enforces the admission rules, as “departing from the rules ‘would require us to evaluate the credentials of every [applicant] who seeks a waiver.’” The Court noted that it will depart from the admission rules and grant a waiver “only in the most extraordinary cases where ‘strict adherence to the rules [will] undermine’ the goal of ‘ensuring that the people of this state may rely on admitted attorneys for competent and ethical representation.’”

With these principles in mind, the Court concluded “that a waiver is appropriate only in extraordinary cases where an applicant demonstrates by clear and convincing evidence that the purpose of a particular rule contemplated for waiver has been satisfied.” To determine whether a case is extraordinary, the Court “will not merely consider whether an applicant has satisfied the purpose of a particular rule—which may be narrow,” but instead “will consider more globally an applicant’s competence to practice law.” “A guiding star of this analysis is that the applicant’s background and experience must distinguish him from other applicants to merit waiver.”

After articulating the appropriate standard, the Court then addressed the merits of Kelly’s petition. It concluded that waiver of rule 14-704(c)(5) was not supported by the argument that the education Kelly received at Toronto Law was the functional equivalent of the education provided at ABA-approved law schools. The Court explained:

Mr. Kelly did not receive the same extensive instruction in U.S. law that a graduate from an ABA-approved law school would receive. To be sure, he did focus on a legal corpus that, like U.S. law, derives from the same parent—English common law. And this corpus may have provided Mr. Kelly with legal knowledge and skills bearing a resemblance to U.S. law. But this information alone does not establish by clear and convincing evidence that the education he received at Toronto [Law] was “functionally equivalent to the education provided at ABA-approved schools.”

However, the Court noted that Kelly’s 12 years’ experience as an attorney in Massachusetts, where he developed a highly specialized practice, clearly shows that he has been exposed to U.S. law and therefore satisfies the purpose of rule 14-704(c)(5).

After examining the totality of the circumstances, the Court concluded that Kelly’s combination of education and experience justified the waiver and granted him permission to sit for the Utah bar exam. The Court explained:

Because Mr. Kelly’s unique background and experience distinguishes him from other applicants—a guiding star in our analysis—waiver is appropriate. We hold that where an attorney has graduated from a highly regarded foreign law school that is rooted in the English common law, and has been actively, lawfully, and recently engaged in the full-time practice of law for over [10] years, we will grant a waiver of rule 14-704(c)(5). This waiver does not guarantee Mr. Kelly’s admission to the Utah State Bar. It only provides him with the opportunity to sit for the bar examination and demonstrate [that] he possesses the basic legal knowledge and skill needed to practice in this jurisdiction.

Character and Fitness

Misrepresenting academic record to prospective employer; lack of candor in bar application;
rehabilitation; conditional admission

In re Jarrett, 879 N.W.2d 116, 368 Wis.2d 567 (WI 2016)

The Wisconsin Board of Bar Examiners declined to certify that Joshua E. Jarrett met the character and fitness requirements for admission to the Wisconsin bar because he had misrepresented his law school grades and other information to a prospective employer and failed to disclose three speeding tickets in his bar application; the board did not find his explanations regarding his misconduct to be believable. Jarrett sought review of the board’s decision by the Wisconsin Supreme Court, contending that the board’s factual findings were clearly erroneous and that its legal conclusions were not supported by the evidence.

Before being accepted to the University of Wisconsin Law School in 2011, Jarrett obtained an undergraduate degree in Criminal Justice in 2009, served a prestigious summer internship with the U.S. Department of State in Washington, D.C., and worked as a police officer for a year in his home state of Georgia. In his first year of law school, he was accepted into the Wisconsin Innocence Project criminal appeals clinic and performed well.

In the summer of 2012, he submitted a resume and an unofficial transcript to the law school office responsible for on-campus interviews in an effort to obtain summer employment with the New York City Law Department in 2013. The resume and unofficial transcript both included false information. On his resume, he listed his grade point average (GPA) as 2.75 when it was actually 2.72, and he stated that he was a member of the Wisconsin Law Review when he was not. On his unofficial transcript, he changed three grades from B- to B.

Jarrett subsequently sent an e-mail to the New York City Law Department explaining that he had been informed that he had not been chosen for Law Review on the deadline for submitting his employment application materials. He attached an updated resume and unofficial transcript to the e-mail, but he did not correct the altered grades or the inflated GPA. In fact, in this version of his unofficial transcript, he changed his GPA to 3.0 when it was actually 2.72, and altered two B- grades to B, one B- to a B+, and one B to a B+.

The Academic Misconduct Committee of the University of Wisconsin held a hearing in September 2012 and issued a written decision determining that Jarrett had admitted to violating the University’s academic code of conduct by forging or falsifying academic documents on two occasions. The committee also found that the “seriousness of that offense did not seem to immediately resonate” with Jarrett. The committee placed him on disciplinary probation for two semesters and required that he meet with the dean to discuss portions of the Wisconsin Lawyer magazine pertaining to attorney conduct.

In December 2013, Jarrett applied for admission to the Wisconsin bar under diploma privilege. He admitted in his application to inflating his grades and misrepresenting his membership on the Law Review. However, he failed to report three speeding citations he had received between 2009 and 2013. When contacted by the board’s investigator in January 2014 about the undisclosed speeding citations, Jarrett responded that he had forgotten about them, and he filed an addendum to his application reporting the citations.

The board issued a preliminary adverse determination in August 2014, and Jarrett requested a hearing before the board. The hearing was held in December 2014, and the board issued an adverse decision in April 2015. The board found that Jarrett had not disclosed the truth to the New York City Law Department about his grades, his GPA, or the Law Review. The reason Jarrett gave for his misconduct was that he was feeling “enormous pressure” to find a summer job, but the board noted that he did not identify any specific pressures. The board found his statements about his misconduct in applying for the summer employment to be inconsistent and sometimes contradictory and concluded that his conduct was dishonest and deceptive. The board also found that he minimized the significance of the misconduct.

The undisclosed traffic citations were issued in 2009, 2011, and 2013 for speeding. Jarrett claimed that his failure to disclose was because he forgot about the citations, but the board did not find his explanation to be credible. Additionally, Jarrett was arrested on a bench warrant in 2006 for failure to appear on two speeding tickets. He claimed that he had “tried contacting” the traffic department and the court to change the date of his appearance but later admitted that he never wrote a letter or an e-mail to notify the court of his schedule conflict.

The board concluded that Jarrett’s conduct, taken as a whole, suggested a pattern of dishonest and deceptive behavior; that he was not a credible witness; and that he had consistently minimized the gravity of his conduct. Jarrett unsuccessfully sought review by the board of its decision, and then sought review by the Wisconsin Supreme Court.

The Court noted that on reviewing an adverse decision of the Board of Bar Examiners, it adopts the board’s findings of fact that are not clearly erroneous and then determines if the board’s conclusions of law based upon the facts are proper. The Court makes its legal determinations de novo.

The Court rejected Jarrett’s arguments that the board’s factual findings were clearly erroneous. It also rejected Jarrett’s claim that the board’s decision was based solely on the 2012 academic misconduct and found that the board had considered all facets of his application. The Court then reviewed the legal standards for evaluating applicants’ character and fitness as set out in the rules, including the factors to be considered and the weight and significance to be accorded to an applicant’s prior conduct. Although the Court agreed that the board “was right to be deeply concerned by Mr. Jarrett’s dishonesty,” it found that denial of his application was “simply too harsh a penalty under the circumstances presented.”

The Court stated that it was “mindful that Mr. Jarrett has faced difficult family circumstances that imposed considerable pressure on him, both financial and otherwise.” His admission to the bar had been delayed by several years and had been an uncertainty. His misconduct in law school had caused him “significant obstacles, embarrassment, and financial difficulties.” The Court noted Jarrett’s contributions and accomplishments in the intervening four years since the 2012 employment application, including completing unpaid legal internships and volunteer work, mentoring students, and working in a position of public trust in Washington, D.C. The Court also noted the many letters submitted by employers and professors expressing admiration for Jarrett’s work ethic, judgment, and compassion.

The Court exercised its prerogative to approve Jarrett’s admission contingent on his compliance with certain conditions. It directed the Office of Lawyer Regulation (OLR) to appoint a practice monitor licensed to practice in Wisconsin and located in the region of Jarrett’s employment or residence. The practice monitor will “serve as a mentor” to Jarrett and “supervise and oversee” his “practice of law and related professional activities” for two years. Jarrett was directed to cooperate with the OLR and the practice monitor and comply with all requirements placed upon him by the OLR, including executing a written monitoring agreement setting forth the terms of his monitoring as determined by the practice monitor. Jarrett must also comply with all reasonable requests of his practice monitor and bear the reasonable costs of monitoring. Upon his or her appointment, the monitor shall report in writing to the OLR on a quarterly basis. The OLR shall file a report with the Court within 30 days prior to the expiration of the monitoring period recommending whether the conditions should be extended or terminated.

The Court ordered Jarrett to provide the OLR with a copy of the entire record in this matter and to authorize the OLR to share the record with the practice monitor. Aside from those disclosures, the documents submitted under seal would remain under seal until further order of the Court. The decision of the Board of Bar Examiners was reversed, and the matter was remanded to the board for action consistent with the Court’s order.

One justice filed a concurring opinion in which two other justices joined. The chief justice filed a dissenting opinion that was joined by two other justices. The concurring opinion expressed that it found no fault with the board’s decision but concluded that it was possible to permit Jarrett to practice under reasonable conditions “without depreciating the seriousness of his misconduct.” The dissent agreed with the board’s findings and conclusions, and expressed that “there are simply too many incidents in which Mr. Jarrett considered the truth optional when it was not to his
advantage.”

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