Petition of Rubenstein
| Decision Date | 25 January 1994 |
| Docket Number | No. 33,33 |
| Citation | 637 A.2d 1131 |
| Parties | 3 A.D. Cases 919, 4 A.D.D. 1094, 4 NDLR P 444 In re Petition of Kara B. RUBENSTEIN (Applicant). . Submitted: |
| Court | Supreme Court of Delaware |
Upon Petition from the Board of Bar Examiners. GRANTED.
J.R. Julian of J.R. Julian, P.A., Wilmington, for petitioner Kara B. Rubenstein.
Josy W. Ingersoll (argued), and William J. Wade, Wilmington, for Board of Bar Examiners.
Before VEASEY, C.J., WALSH and HOLLAND, JJ.
Kara B. Rubenstein ("Rubenstein") has petitioned this Court, pursuant to Supreme Court Rule 52(f). Rubenstein contends that, under the facts and circumstances presented, this Court should direct the Board of Bar Examiners ("Board") to issue a certificate that she is qualified for admission to the Delaware Bar. Supr.Ct.R. 52(e); B.R. 52.1. This Court has concluded that Rubenstein's petition for relief should be granted.
Rubenstein received a bachelor's degree from the University of Pennsylvania and a juris doctorate from the Temple University Law School. Rubenstein first applied for admission to the Delaware Bar in 1990. She made subsequent applications in 1991, 1992, and 1993. In 1990, Rubenstein did not achieve a passing score on the Professional Conduct Examination or either portion of the Delaware Bar Examination, i.e., the essay section or the Multistate Bar Examination ("MBE") section. See B.R. 52.4 and 52.5. In 1991, Rubenstein passed the separate Professional Conduct Examination, but once again did not pass the Bar Examination. In 1992, Rubenstein achieved a passing score of 137 on the MBE section, but failed the Bar Examination by not achieving a passing score on the essay section.
From 1989 to 1990, Rubenstein served as a law clerk to the President Judge of the Delaware Superior Court. In the fall of 1990, Rubenstein was certified under Supreme Court Rule 55. That rule provides for limited permission to practice law in Delaware's courts as a part of certain public programs.
In 1990, in accordance with the limited practice provisions of Rule 55, Rubenstein became employed by the Department of Justice of the State of Delaware as an Assistant Deputy Attorney General. Rubenstein worked as an attorney in that capacity for a period of two years until December 1992. 1 As an Assistant Deputy Attorney General, Rubenstein prosecuted driving under the influence and other criminal cases in the Court of Common Pleas in New Castle County. She also appeared in the Superior Court on habitual offender motions in motor vehicle cases and on motions to reinstate motor vehicle licenses.
The record before the Board included evidence of Rubenstein's competence and ability to practice law in the Delaware Superior Court and the Court of Common Pleas during her tenure as an Assistant Deputy Attorney General. That evidence included letters from the Judge she clerked for in the Superior Court, as well as letters from several other judges she had appeared before in the Superior Court and the Court of Common Pleas. An experienced member of the Delaware Bar, who was frequently Rubenstein's courtroom adversary, wrote to the Board on her behalf, as follows:
In permitting the admission of an applicant to the Delaware Bar, the Board must always be concerned with whether or not the applicant can competently practice law in this state. That answer cannot always be gleaned from someone's test score. As a result of my unique opportunity to observe Kara Rubenstein practice for over a year in two of the busiest courts of this state under Supreme Court Rule 55, I can unequivocally state she is well qualified to do so.
In support of her petition, the Attorney General of Delaware also wrote to the Board that, as an Assistant Deputy Attorney General, Rubenstein was a "competent and diligent" practitioner and that he found it "inexplicable" that Rubenstein had been unable to pass the Delaware Bar Examination.
After three unsuccessful attempts to pass the Bar Examination, Rubenstein sought an expert's explanation for the anomalous dichotomy between her inability to pass the Bar Examination and her undisputed ability to function effectively as a prosecuting attorney in Delaware courts, pursuant to this Court's limited practice rule. Supr.Ct.R. 55. After careful testing, Rubenstein was advised that she suffered from a learning disability, which had been previously undiagnosed. The exact nature of the disability had no bearing on her intelligence or acumen but related exclusively to the means by which Rubenstein processed information.
In April 1993, Rubenstein filed a petition with the Board requesting an exercise of its discretion to permit her a fourth opportunity to take the Bar Examination. B.R. 52.8(e). Rubenstein's petition alleged that she suffered from a learning disability, which had been previously undiagnosed. In support of her petition, Rubenstein presented to the Board a report prepared by William F. Shaw, M.Ed. ("Shaw"), concerning his evaluation of Rubenstein's learning disability. Shaw's report stated, in part:
The 21 point discrepancy between the verbal and performance abilities suggest that her learning style is that of a linguistic, sequential processor of information rather than a simultaneous processor. In the latter information is presented all at one time rather than in a sequence. If client's tests are more similar to the latter, for example if the fact patterns are presented all at once and client has to come up with a solution, she will do less well than if she is able to develop a problem sequentially as she would do in her criminal prosecutor role.
Due to the large discrepancy between the verbal and performance abilities, the verbal measure is used as an expectancy of achievement as the Full Scale I.Q. represents a meaningless average. In this regard client's current measures of achievement are not significantly below her measure of expectancy, but the overlays of a learning disability and the learning processing difficulties still exist. The reader is reminded to once again look at the qualitative behavior observations during the reading tests. Moving one's head rather than to read with her eyes, especially for an individual with some superior abilities, speaks out boldly in terms of the diagnosis of a learning disability. In addition the observable mouthing of words as she reads, supposedly silently, is a further indication of an inefficient and maldeveloped reading process.
Shaw's report made the following recommendation to the Board:
In order to compensate for her disability, unlimited or at least extended time should be granted for the bar examination. This is assuming that the Testing Committee, based upon the new information reported in this examination, would reconsider and allow her to take the test again. The increased time allowed will grant more opportunity for client to read and reread items in order to give additional input [emphasis added].
The Shaw report concluded with the observation that Rubenstein's learning disability would not impair her law practice. In fact, the report stated that Rubenstein "has a facility for the practice of law and is encouraged to pursue that interest." In addition, Rubenstein supported her petition to the Board with a letter from the Deputy Attorney General who had supervised her Rule 55 practice. Her supervisor represented to the Board that Rubenstein's "learning disability had no discernible impact on her ability to practice law in the criminal courts, something the tests cannot show."
On June 11, 1993, the Board informed Rubenstein that it had granted her petition to take the Delaware Bar Examination for a fourth time. The Board's letter to Rubenstein also stated that based upon the medical evidence of her learning disability, accommodations would be made for her to take the essay portions of the examination. Those accommodations consisted of the Board's permission for Rubenstein to take the essay section in a separate room and to have one additional hour for each three-hour essay session. The Board decided that Rubenstein would not be permitted additional time for the MBE section. 2
With the accommodation of additional time on the essay section, Rubenstein passed that portion of the 1993 Delaware Bar Examination. However, she received a score of 128 on the MBE, the examination she had passed in 1992 with a score of 137. That score was two points less than the minimum MBE score of 130 required by the rules of the Board. B.R. 52.4(c). Consequently, Rubenstein was informed that she had failed the 1993 Bar Examination.
Rubenstein petitioned the Board. She requested to be certified by the Board as being qualified for admission to the Delaware Bar, notwithstanding the two-point insufficiency of her MBE score in 1993. Rubenstein's petition was considered by the Board. Her petition was denied by the Board in a letter dated November 17, 1993.
Rubenstein has appealed to this Court for relief from the Board's action. Supr.Ct.R. 52. The Board's ruling would prevent Rubenstein from ever gaining admission to the Delaware Bar. Consequently, the Board's denial of Rubenstein's petition has affected her "substantial rights," as required by Supreme Court Rule 52(f). Therefore, it is appropriate for this Court to consider the merits of Rubenstein's petition for relief.
This Court will not set aside the determination of the Board as to an applicant's professional competence unless the applicant demonstrates fraud, coercion, arbitrariness, or manifest unfairness. In re Reardon, Del.Supr., 378 A.2d 614, 618 (1977). Rubenstein does not allege that the Board conducted itself in either a fraudulent or a coercive manner. Rather, she contends that the Board's decision to grant her additional time on the essays but not on the MBE section of the Bar Examination...
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