Litigation

This article originally appeared in The Bar Examiner print edition, Summer/Fall 2021 (Vol. 90, Nos. 2–3), pp. 59–64.

Bar Examination

Eligibility; Waiver of time and attempt limits

The Vermont Supreme Court upheld the decision of the Board of Bar Examiners that Lewis Birt was not eligible to sit for the Vermont bar exam, finding that the Board of Bar Examiners did not abuse its discretion in finding no good cause and denying Birt’s request for a waiver of the five-year time limitation between completion of his Law Office Study program and his attempt to take the bar exam.

Lewis Birt successfully completed Vermont’s Law Office Study (LOS) program in April 2000. (Vermont is among a limited number of states that, as an alternative to law school attendance, permits candidates for admission to the bar to qualify to take the bar examination on the basis of four years of study supervised by an attorney or judge.) Birt then sat for the Vermont Bar Examination four times between 2002 and 2004, failing each time. In July 2019, Birt filed an application to take the February 2020 bar exam in Vermont. Vermont’s Licensing Counsel reviewed the application and raised concerns both about the length of time between Birt’s completion of the LOS program and the 2019 application and about the number of Birt’s unsuccessful examination attempts. In light of those concerns, the Licensing Counsel asked Birt if he wished to go forward with the application; Birt elected to do so and provided additional information to address the Licensing Counsel’s concerns.

At its December 2019 meeting, the Vermont Board of Bar Examiners decided to deny Birt’s application for the February 2020 bar examination, relying on Rule of Admission 9(b)(1), which requires an applicant to sit for the bar exam within five years of completing the LOS program unless the time is extended for good cause, and Rule 9(b)(4), which limits an applicant to four attempts to pass the exam unless the limitation is waived. Birt appealed the board’s decision to the Vermont Supreme Court.

The Vermont Supreme Court has vested the Board of Bar Examiners with the duty to determine whether an applicant has made the necessary showing of minimal professional competence warranting the applicant’s admission to the practice of law. The Court will generally not set aside a decision of the board unless there is a strong showing of abuse of discretion, fraud, corruption, arbitrary action, or oppression. However, the Court is not bound by the board’s findings or decisions.

The board had concluded that a waiver of the Rule 9(b)(1) requirement of sitting for the bar exam within five years of completing the LOS program was not warranted because Birt had completed the program almost 20 years ago and “had not had significant contact with the law and legal matters since then.” Rule 9(b)(4)’s limitation of four attempts at passing the bar exam is waivable by the board “upon a strong showing … that the [a]pplicant has substantially improved his or her [e]xam preparation and there is good cause warranting the requested waiver.” Here the board had concluded that waiver was unwarranted because Birt “had not demonstrated that he had substantially improved his bar exam preparation subsequent to his four prior exam failures.”

Birt attempted to argue that the adoption of the Uniform Bar Examination (UBE) in Vermont in 2016 re-set the time limit and that he should be allowed to sit for the UBE within five years of its adoption by Vermont rather than within five years of completing the LOS program. Interpreting the plain language of the rule, the Court found nothing to support Birt’s position that the adoption of the UBE gave him a fresh time period in which to take the bar exam. Birt also argued that good cause existed for a waiver of the time limit because, in the interim, he had been “engaged in work providing him with ongoing experience in the law.” The record indicated that Birt had worked as a musician, as a residential real-estate manager for a church, as a teacher of paralegal studies, and as a court reporter taking notes and assisting Social Security Administration judges. Although some elements of this work history did relate to some aspects of the law, the Court ruled that, on this record, the Board of Bar Examiners did not abuse its discretion when it found that Birt had not had “significant contact with the law and with legal matters” since completing his LOS program and thus had not shown good cause for a waiver of the time limit.

Because the failure to meet the requirements of Rule 9(b)(1) dictated the outcome, the Court did not consider Birt’s challenge to the four-attempt limitation in Rule 9(b)(4), and the denial of his application to sit for the bar exam was affirmed.

See In re Lewis Y. Birt, 2020 VT 55, No. 2020-012 (VT 2020)

Character and Fitness

Misuse of official position; Moral turpitude; Rehabilitation

The Oregon Supreme Court accepted the minority opinion of the Board of Bar Examiners and conditionally admitted Neil Halttunen to the practice of law in Oregon, ruling that Halttunen had demonstrated sufficient reformation of character from his previous misconduct as a police officer.

In this contested lawyer admission proceeding before the Oregon Supreme Court, the issue was whether Neil Halttunen had proved by clear and convincing evidence that he possesses the good moral character necessary for admission to the Oregon State Bar. A majority of the Board of Bar Examiners had issued an opinion recommending that the Court deny admission, while a minority had recommended conditional admission. It was undisputed that, from 2009 to 2012, while working as a police officer, Halttunen had engaged in “inappropriate, unethical, and dishonest conduct” that raised significant questions about his moral character. Halttunen has admitted that he inappropriately used the position of trust and authority that he possessed as a police officer to pursue romantic and sexual relationships with vulnerable women whom he encountered while performing his official duties. He has also admitted that he was dishonest with his employer during an internal investigation into his conduct. Halttunen contends, however, that he has demonstrated sufficient reformation since leaving the police department to establish his current fitness to practice law.

Halttunen resigned from the police department before the investigation into his conduct was complete and voluntarily relinquished his police certifications, thus precluding him from future work as a public safety officer in Oregon. He reports that the months following his resignation were a low point in his life. He began psychotherapy in August 2013. Although initially he felt that he had been treated unfairly by the police department, his therapy sessions forced him to confront the fact that his life circumstances were a result of his own selfish and immature conduct. According to his therapist, Halttunen “demonstrated both the willingness and the ability to engage in critical self-analysis and insight into his behavior and its impact on others.” Halttunen spent 10 months in therapy; his therapist concluded that he “took his therapy seriously and displayed the courage to examine his choices, thinking patterns, and behavior,” including his chauvinistic views, objectification of women, and unwillingness to appear weak by seeking help for mental health problems. Inspired by a fellow former police officer who had started law school and turned his life around, Halttunen applied to law school and was accepted for the fall semester of 2014.

Halttunen did well in law school. Aware that his character and fitness would be scrutinized by the board when he applied for admission to practice law, he decided to pursue additional psychotherapy. His new therapist did not find “any mental or emotional barriers which would impair his ability to practice within the ethical guidelines of his chosen profession” and noted that Halttunen had “developed a variety of tools to maintain physical and mental health.” Halttunen applied to the Oregon bar in March 2017, graduated from law school in May 2017, and passed the July 2017 bar exam. He also participated in a psychosexual evaluation conducted by another doctor, hoping to establish that he had no personality traits that posed a risk of repeating his former misconduct. The doctor found no personality disorder and reported that Halttunen’s various experiences with psychotherapy “suggest a well above average level of commitment to personal growth and relapse prevention.” Nevertheless, the doctor recommended conditional admission to allow Halttunen to “further develop relapse prevention strategies and healthy boundaries in his future work with potentially vulnerable clients.”

Three members of the Oregon Board of Bar Examiners interviewed Halttunen in October 2017. Before the interview, Halttunen provided the board with personal and professional letters of recommendation and documentation from the mental health professionals he had consulted, all of whom supported his admission to the bar. However, one aspect of Halttunen’s responses during the interview caused the board to doubt his veracity. When asked whether he had had sexual contact with any other women he met in the course of his police duties beyond those identified in the internal investigation, Halttunen said that he had had “sexual communications” with other women but that the internal investigation had identified all those with whom he had had “sexual contact.” A few days after the interview, however, Halttunen sent an email to the board acknowledging that he had actually had sexual contact with two additional women whom he had met through his official duties and who were not identified in the investigation; he provided the names of these two women and basic details of the encounters. Following the interview, the board voted to deny Halttunen’s application, and he requested a formal hearing. After the hearing, a majority of the board recommended denying admission and a minority recommended conditional admission.

The Oregon Supreme Court reviewed the record de novo to determine whether Halttunen has shown that he is a person of good moral character. Since it was undisputed that Halttunen’s former conduct was inappropriate, unethical, and potentially criminal, the crucial issue was whether Halttunen has demonstrated that, despite his history, he now possesses the character and fitness to permit his admission to the bar because his “character has reformed sufficiently in the interim.” As the Court has repeatedly emphasized, rehabilitation and reformation of character are difficult for a petitioner to prove and a court to judge; nevertheless, reformation can be proved to the Court’s satisfaction, and the present Court was satisfied in this case that Halttunen has demonstrated sufficient reformation to qualify for conditional admission to the Oregon State Bar.

See In the Matter of the Application for Admission of Neil Patrick Halttunen, BBX A172051, SC S067161 (OR 2020)

Immunity

Eleventh Amendment; testing accommodations; Rehabilitation Act

T.W. sued the New York Board of Law Examiners (the Board) under Section 504 of the Rehabilitation Act, which prohibits discrimination against persons with disabilities, for denying her requests for testing accommodations. As an arm of the State, the Board is entitled to immunity under the Eleventh Amendment from suit under Section 504 unless it is a “program or activity receiving [f]ederal financial assistance.” The Rehabilitation Act defines “program or activity” broadly, and the district court held that the Board was not immune from T.W.’s claim under the Rehabilitation Act because the Board was a program or activity of a department, agency, or instrumentality that received federal funds—New York’s Unified Court System. The Court of Appeals for the Second Circuit held that the district court erred in determining that the Unified Court System was the appropriate department, agency, or instrumentality under the Rehabilitation Act; instead, the relevant recipient of federal funding is the New York trial courts (“Courts of Original Jurisdiction”). Because the Board is not an operation of the Courts of Original Jurisdiction, and because the Board does not otherwise receive any federal funding, it is immune from suit under Section 504. Accordingly, the judgment of the district court was reversed, and the appellate court remanded for further proceedings consistent with this opinion, including consideration of the Board’s motion to dismiss T.W.’s remaining claim under Title II of the Americans with Disabilities Act.

T.W., a Harvard Law School graduate, filed suit in June 2016 in the Eastern District of New York against the New York Board of Law Examiners (the Board), asserting that the Board had violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) by allegedly discriminating against her by denying appropriate disability accommodations for the bar examination. While at Harvard, T.W. received accommodations for depression, anxiety, and ongoing complications from a severe head injury; these accommodations included 50 percent extra time on exams, off-the-clock breaks, and separate testing facilities. When T.W. applied for the July 2013 New York bar examination, she requested the same testing accommodations. The Board initially denied the request for accommodations, but after an appeal, the Board partly granted the request by providing off-the-clock breaks and seating T.W. in a smaller room, albeit with other examinees receiving similar accommodations. T.W. did not pass the July 2013 bar exam, allegedly because the Board’s failure to grant extra time and a separate room made it impossible for her to finish large portions of the examination. T.W. was working as a law clerk at a law firm when she received her bar exam results, and she claims that her failure to pass the exam dealt a major blow to her standing in the firm and meant that she was no longer seen as one of the firm’s “star” young associates.

T.W. applied for the July 2014 New York bar exam and again requested the same accommodations she had received in law school. The Board granted her a different set of accommodations: 50 percent extra time and seating in a smaller room with others receiving similar accommodations, but no off-the-clock breaks. Again, T.W. did not pass the exam, and as a matter of firm policy, her law firm terminated her from her job.

T.W. passed the bar exam on her third attempt in February 2015. This time, the Board provided her with double time instead of 50 percent extra time, an accommodation she had repeatedly requested as an alternative if the Board could not grant her off-the-clock breaks. The Board did not provide any reason for its change in accommodations. T.W. alleges that the Board’s failure to initially provide her with her requested accommodations caused her to fail the bar exam twice, to lose her position with the law firm, and to be unable to find comparable employment. She sued the Board, its chair, and its members, alleging violations of the ADA, Section 504 of the Rehabilitation Act, and the New York City Human Rights Law, seeking declaratory, compensatory, and injunctive relief. T.W. later agreed to withdraw her claims under Title III of the ADA and under the New York City Human Rights Law, as well as her individual-capacity claims against the chair and members of the Board, leaving only her claims against the Board itself under Title II of the ADA and Section 504 of the Rehabilitation Act.

The district court found that the Board is administered and funded as part of New York’s Unified Court System (UCS) and that the UCS “voluntarily and knowingly chooses to accept federal funds for some of its programs.” The court therefore found that the UCS had waived its Eleventh Amendment immunity for all of its operations, including the Board. Having found that T.W. could proceed with her claim under Section 504 of the Rehabilitation Act, the court declined to consider the Board’s argument that T.W.’s claim under Title II of the ADA should be dismissed. The Board appealed, challenging the district court’s holding that the Board is not entitled to Eleventh Amendment immunity.

The appellate court found that there are three ways by which a state entity may waive its immunity to suite under Section 504. First, the entity may directly request and receive federal financial assistance that is conditioned on Section 504 coverage. Second, the entity may be a “program or activity” of a “department, agency, special purpose district, or other instrumentality of a State,” “any part of which” receives federal funding. Third, the entity may indirectly receive federal financial assistance through another entity that requests and receives the federal financial assistance and then extends that money to the nonrequesting entity.

At the outset, both parties agreed that the Board did not directly or indirectly receive any financial assistance from the federal government between 2013 and 2015. The question remained whether the Board is a “program or activity” of a state entity that received federal funding. The appellate court agreed that the Board is a “program or activity” of the New York UCS. The UCS is the name for the entire New York State judiciary as reorganized by the state legislature in 1978. Under the umbrella of the UCS are the trial courts (the “Courts of Original Jurisdiction”), the appeals courts (the “Appellate Divisions”), and New York’s highest court, the Court of Appeals. Shortly before consolidating the entire judiciary into the UCS, the state legislature also passed the Unified Court Budget Act, under which the entire court system prepares and completes a single budget and then presents it to the state legislature. The legislature also decided to centralize the manner by which any component part of UCS can receive federal funding, appointing the Chief Administrator of the courts as the sole individual authorized to accept federal grants on behalf of any part of UCS. However, according to UCS’s Judiciary Budget, the Chief Administrator is responsible for supervising the administration and operation of only the trial courts (“Courts of Original Jurisdiction”); the Appellate Divisions and the Court of Appeals are responsible for the administration and operation of their own courts and are not overseen by the Chief Administrator.

From 2013 to 2015, the annual UCS budgets show that all federal funding to the UCS was allocated exclusively to the Courts of Original Jurisdiction, not to the Appellate Divisions or the Court of Appeals. The grant money was used to fund services in the drug treatment courts, family courts, and other specialty courts, which applied directly for the grants and entered into contracts with the federal government pursuant to the grants, including reporting and spending requirements. The Chief Administrator was the authorized recipient of the grant money, who then “coded” the money into the appropriate “bucket” in the overall UCS budget. That “bucket” appears in the annual UCS budget as a component of the Courts of Original Jurisdiction’s budget. The appellate court considered whether the true recipient of the federal funds for purposes of the Rehabilitation Act was the Chief Administrator or the requesting lower courts and concluded that the lower courts were the true recipients of the federal aid because they received the funds in exchange for certain promises to the federal government.

The court then examined whether the receipt of federal funding by the lower courts rendered the entire New York judiciary amenable to suit under the Rehabilitation Act. On one hand, Congress amended the Rehabilitation Act in 1988 to broaden the definition of “program or activity,” intending the statute to have broad reach and to “make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives [f]ederal financial assistance.” On the other hand, immunity waiver under Section 504 is not without limit, and the US Supreme Court has instructed that “in assessing whether a state has made a knowing and intentional waiver, ‘every reasonable presumption against waiver’ is to be indulged.” Bearing these two competing principles in mind, the appellate court concluded that the entire UCS is not subject to the Rehabilitation Act because several lower specialty courts received federal financial aid, but that the lower courts are not a “program or activity” of the UCS for purposes of the Rehabilitation Act but are instead a “program or activity” of the Courts of Original Jurisdiction.

With the relevant department established, the court then considered whether the Board is an operation of the Courts of Original Jurisdiction. The court concluded that the Board is certainly not an operation of the trial courts; the trial courts and the Board have separate funding sources and administration, and there is no oversight or connection between the Board and any trial court. The Board has therefore not waived its immunity and is not amenable to suit under the Rehabilitation Act. The appellate court reversed the judgment of the district court and remanded for further proceedings consistent with this opinion, including consideration of the Board’s motion to dismiss T.W.’s remaining claim under Title II of the ADA.

See T.W. v. N.Y. State Bd. of L. Examiners, 996 F.3d 87 (2d Cir. 2021)