Mitchell v. Board of Bar Examiners, SJC-10157

• Decision Date: 20 November 2008
• Docket Number: SJC-10157
• Citation: 452 Mass. 582,897 N.E.2d 7
• Parties: Ross E. MITCHELL v. BOARD OF BAR EXAMINERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

897 N.E.2d 7

452 Mass. 582

Ross E. MITCHELL v. BOARD OF BAR EXAMINERS.

SJC-10157

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 3, 2008.

Decided November 20, 2008.

Ross E. Mitchell, pro se.

David A. Guberman, Assistant Attorney General, for Board of Bar Examiners.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

This bar admission matter comes before us on a reservation and report by a single justice of this court. The plaintiff, Ross Mitchell, is a 2004 graduate of Concord Law School (Concord), a wholly online law school that is authorized by the State of California to grant the degree of juris doctor. Mitchell is also a member of the California bar, having taken and passed that State's bar examination in 2004. Because Mitchell holds his law degree from a school that, by virtue of its online character, does not qualify for accreditation or approval by the American Bar Association (ABA), Mitchell fails to satisfy the requirement of our rule governing eligibility to take the Massachusetts bar examination. See S.J.C. Rule 3:01, § 3.3, as appearing in 382 Mass. 754 (1981).¹

After his first efforts to obtain permission to take the bar examination failed, Mitchell filed this action against the Board of Bar Examiners (board) in the county court, challenging the constitutionality of rule 3:01, § 3.3, as applied to him and, in the alternative, seeking an amendment to that rule or a waiver of the rule in his case. We conclude that in the particular circumstances of this case, Mitchell's request for a waiver should be granted.

1. Background.² Mitchell graduated from high school in 1969 and has been a resident of Massachusetts since 1981, working as a computer systems and management consultant. In April of 2000, he began study at Concord, an entirely online law school owned by Kaplan, Inc., which in turn is owned by the Washington Post Company. At all relevant times, Concord was authorized by the California bureau for private postsecondary and vocational education to grant, inter alia, a degree of bachelor of science in law and a degree of juris doctor. See Cal. Educ.Code §§ 94900-94905, as in effect through December 31, 2007.

In July of 2002, Mitchell received his undergraduate degree, a bachelor of science in law, from Concord, and in July, 2004, he received his juris doctor degree from the same institution. In connection with the law degree, Mitchell graduated with "highest honors," and was the class valedictorian.³ Following his graduation, he sat for and passed the California bar examination, and was admitted to the bar of California in November, 2004.⁴ He was admitted to practice before the United States Court of Appeals for the First Circuit in December, 2004, and before the United States District Court for the Central District of California in March, 2005.

In October of 2005, Mitchell wrote to the chair of the board to discuss how he might be granted permission to sit for the Massachusetts bar examination, given that S.J.C. Rule 3:01, § 3.3, requires graduation from a law school approved by the ABA as a condition of eligibility to sit for the examination, and Concord is not ABA-approved. When the chair responded that the board had no authority to waive the court's rules, Mitchell wrote the court's rules committee in March, 2006, to request permission to sit for the bar examination in Massachusetts, based on his law school education at Concord and his admission to the California bar. The rules committee denied his request. Mitchell then asked for reconsideration, and in the alternative requested an amendment to S.J.C. Rule 3:01, § 3.3, to permit attorneys admitted to practice in other States who had graduated from domestic law schools authorized by State statute to grant a law degree but not approved by the ABA to sit for the Massachusetts bar examination. The rules committee denied the motion for reconsideration but, in response to the request for a rule amendment, convened a working group comprising law school faculty, administrators, and a member of the board to consider the matter. In or around December, 2006, the working group recommended that no amendment to the court's bar admission rules be adopted at that time, and this court accepted the group's recommendation. However the court agreed to, and did, request the ABA "to give attention to the issue of distance learning, with a view towards incorporating online methodologies into the [ABA's] Standards for Approval of Law Schools." Thereafter, in November of 2007, Mitchell commenced this action in the county court.

The ABA has been approved by the United States Department of Education as the national agency responsible for accrediting programs that lead to the bachelor of laws or juris doctor degree. To perform its work in the area of approving law school programs, the ABA has adopted "Standards for Approval of Law Schools" (approval standards). The approval standards currently in effect were adopted in 2006. They provide in part that an approved law school program may only allow four credits per term to be taught at a distance, and a total of twelve credits for an entire program. They also require that a law school have a physical library, and have fixed facilities. As a wholly online program, Concord does not and cannot meet any one of these standards.

In August, 2008, the ABA announced that in September, 2008, it would begin a comprehensive review of the approval standards.

2. Discussion. Mitchell argues that by requiring graduation from an ABA-approved law school in order to sit for the Massachusetts bar examination, S.J.C. Rule 3:01 violates the equal protection guarantees of the Massachusetts Declaration of Rights in two ways.⁵ The first way relates to the differences in the law school education requirements for attorneys licensed to practice law in another State who seek admission to the Massachusetts bar by taking the bar examination, on the one hand, and the requirements applicable to out-of-State licensed attorneys who seek admission to the Massachusetts bar on motion, on the other⁶; the second is by treating differently, again in relation to law school education requirements, attorneys who have received their legal training in a United States-based law school that is not approved by the ABA and attorneys who received legal training in a foreign law school that also is not approved by the ABA.⁷ We do not reach these constitutional arguments, since we decide the case on other grounds.⁸

This court has the equitable power to waive a particular requirement of a court rule concerning admission to the bar. See Matter of Tocci, 413 Mass. 542, 546, 600 N.E.2d 577 (1992) (Tocci); Novak v. Board of Bar Examiners, 397 Mass. 270, 274, 490 N.E.2d 1183 (1986) (Novak). In Mitchell's particular case, two considerations combine to persuade us that we should waive the law school accreditation requirement set out in S.J.C. Rule 3:01, § 3.3. The first of these concerns Mitchell himself, and the record he presents of his educational accomplishments in the field of law.

Our bar admission rules have long included the requirement that a United States-trained applicant seeking admission to the bar through the bar examination graduate from a law school accredited by the ABA; many other States have the same requirement. See National Conference of Bar Examiners and ABA Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements Chart III (2008).⁹

And we have noted that "there is a `direct rational connection between the requirement of graduation from an accredited law school and an applicant's fitness to practice law.'" Wei Jia v. Board of Bar Examiners, 427 Mass. 777, 783, 696 N.E.2d 131 (1998) (Wei Jia), quoting Tocci, 413 Mass. at 548, 600 N.E.2d 577. See Osakwe v. Board of Bar Examiners, 448 Mass. 85, 89, 858 N.E.2d 1077 (2006) (Osakwe). The ABA approval requirement, however, is not an end in itself, but rather a practical way to ensure generally that prospective attorneys have received an adequate level of appropriate legal education. Tocci, supra. See Osakwe, supra. Nevertheless, ABA accreditation is not the only method we use to evaluate educational proficiency. For example, because the ABA does not accredit foreign law schools or programs, the board, and in some instances this court as well, must examine and evaluate the quality and sufficiency of each foreign-trained applicant's legal education without the assistance provided by ABA approval. S.J.C. Rule 3:01, § 3.4, as appearing in 382 Mass. 754 (1981). See Osakwe, supra at 89, 91-94, 858 N.E.2d 1077; Wei Jia, supra at 782-784, 787-788, 696 N.E.2d 131.

The record contains quite specific information about the required and elective courses that Mitchell took as a law student at Concord — the course subjects, an overview of topics covered, and the legal texts and authors that were used — as well as a description of the extensive online research resources that were available to him. Our review of these materials indicates that Mitchell's core course of study, and legal research resources, were substantively very similar to the core content offered by ABA-approved law schools. See Osakwe, 448 Mass. at 92-93, 858 N.E.2d 1077. Moreover, and of great importance, the record reveals that Mitchell achieved an exemplary degree of success as a law student. Thus, he won "outstanding achievement" awards in three of his first year courses, an award for best oral advocate and best brief in his moot court exercise in the third year, and over-all academic honors in all four of his law school years, graduating with highest honors and as valedictorian of his class in July of 2004.¹⁰ Finally, we find the following factors significant: (1) the State of California, through its bureau for private postsecondary and vocational education, had specifically approved Mitchell's law school, Concord, to grant a juris...