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Kelly v. Utah State Bar

Supreme Court of Utah

February 6, 2017

James J. Kelly, Petitioner,
v.
Utah State Bar, Respondent.

         On Direct Appeal

          James L. Barnett, Darren G. Reid, Ryan R. Jibson, Salt Lake City, for petitioner

          Elizabeth A. Wright, Salt Lake City, for respondent

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Durham, Justice Himonas, and Justice Pearce joined.

          OPINION

          Durrant, Chief Justice

         Introduction

         ¶ 1 This case requires us to establish for the first time a standard for evaluating petitions for waiver of the admission rules set forth in the Rules Governing the Utah State Bar (the Utah Rules Governing Bar Admission). Petitioner James Kelly graduated from the University of Toronto Faculty of Law (Toronto law school) in June 2000 and practiced law for over a decade in Massachusetts. He now asks us to waive rule 14-704(c)(5) of the Utah Rules Governing Bar Admission, which requires a graduate of a foreign law school to obtain additional education at an ABA-approved law school before becoming eligible to take the Utah bar examination.[1] We conclude that waiver of our rules is appropriate only in extraordinary cases where the applicant demonstrates by clear and convincing evidence that the purpose of the rule for which waiver is sought has been satisfied. Because those conditions are met in this case, we grant Mr. Kelly's petition for waiver.

         Background

         ¶ 2 Petitioner James Kelly graduated from Toronto law school in June 2000, receiving an LL.B. Toronto law school is located in Toronto, Ontario, Canada, and, because it is a foreign law school, it is not accredited by the American Bar Association (ABA).[2] Even though unaccredited by the ABA, the law school is accredited by the Law Society of Upper Canada and considered the top-ranked law school in Canada.[3] Following graduation, Mr. Kelly passed the Massachusetts bar examination and was admitted in January 2001 to practice law in Massachusetts.[4] Initially, he worked for Testa, Hurwitz & Thibeault LLP, but eventually he became a partner at Morse, Barnes-Brown & Pendleton P.C. (Morse), developing "a highly specialized legal practice focused on federal securities regulation and private investment fund formation."

         ¶ 3 In July 2013, Mr. Kelly moved with his family to Utah, intending to seek admission to the Utah State Bar (Bar) in order to help Morse open a Salt Lake City office. Throughout 2013 he worked from home for Morse clients who were not located in Utah. In March 2014, Mr. Kelly contacted the Bar about submitting an application and was told he would need to meet the foreign law school graduate education requirements to be eligible for the bar exam.

         ¶ 4 Utah allows only two categories of persons to take the bar: student applicants and attorney applicants.[5] Rule 14-704 of the Utah Rules Governing Bar Admission prescribes the standards attorney applicants must meet. This rule distinguishes between attorney applicants from unapproved law schools[6] and attorney applicants from foreign law schools.[7] As an attorney applicant from a foreign law school-Toronto law school-Mr. Kelly is required to satisfy the requirements outlined in 14-704(c).

         ¶ 5 Most relevant here, rule 14-704(c)(5) requires Mr. Kelly

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.[8]

         When Mr. Kelly inquired about obtaining a waiver of this rule, the Bar informed him that only the Utah Supreme Court could grant a waiver and that he could not petition the court to request a waiver until he had submitted an application.

         ¶ 6 Mr. Kelly did not immediately act on this information and submit his application, because his health sharply deteriorated. Eventually, Mr. Kelly was forced to undergo surgery in February 2015 to address his condition. The surgery was successful, and by March 2015 he began to work on a more consistent basis. Six months later, in September 2015, Mr. Kelly left Morse and joined Holland & Hart LLP.[9] He thereafter submitted his bar application in time for the fall 2015 deadline. And on February 2, 2016, the Bar formally denied Mr. Kelly's bar application because he had not satisfied rule 14-704(c)(5)'s education requirement for an attorney applicant from a foreign law school. A week and a half later, on February 12, 2016, Mr. Kelly petitioned this court to waive rule 14-704(c)(5)'s education requirement. We have jurisdiction to hear this matter pursuant to article VIII, section 4 of the Utah Constitution and section 78A-3-102(2) of the Utah Code.

         Analysis

         ¶ 7 Mr. Kelly, as an attorney applicant with a degree from Toronto law school in Ontario, Canada, seeks a waiver of rule 14-704(c)(5) of the Utah Rules Governing Bar Admission, which requires a graduate of a foreign law school to obtain additional education at an ABA-approved law school to be eligible to take the Utah bar examination. Article VIII, section 4 of the Utah Constitution empowers this court to "govern the practice of law [in Utah], including admission to practice." Pursuant to that constitutional power, "the authority to waive one of our admissions rules rests solely with this court."[10] To evaluate Mr. Kelly's petition, we must articulate for the first time a standard for evaluating petitions for wavier of our admission rules. After articulating the appropriate standard, we conclude that Mr. Kelly merits a waiver of rule 14-704(c)(5) of the Utah Rules Governing Bar Admission.

         I. We Grant Petitions for Waiver of the Utah Rules Governing Bar Admission Only in Extraordinary Cases

         ¶ 8 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.[11] Generally, we strictly enforce our admission rules, recognizing that departing from the rules "would require us to evaluate the credentials of every [applicant] who seeks a waiver."[12] So we will depart from these standards 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."[13]

         ¶ 9 In our prior cases, we have exercised our authority to waive an admission rule on only one occasion, In re Anthony, [14] and in that case "we decline[d] to set out any specific standard for evaluating petitions for waiver, "[15] because the attorney applicant provided three decades of competent, unblemished legal practice in California and would have undoubtedly satisfied the standard we articulated, whatever its precise scope.[16] We conclude that Mr. Kelly presents a somewhat different case, requiring us to identify when we will exercise our authority to grant a petition for waiver.

         ¶ 10 Specifically, we hold 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. Though we have not previously articulated this standard, it is supported by our admission rules and precedent.[17] Further, in propounding this standard, we emphasize that it is a high bar and that we have wide discretion to determine when a case is truly extraordinary.

         ¶ 11 In assessing whether a particular case is extraordinary, we will not merely consider whether an applicant has satisfied the purpose of a particular rule-which may be narrow. Instead, we will consider more globally an applicant's competence to practice law. Our admission rules seek "to protect the citizens of Utah by ensuring . . . that the people of this state may rely on admitted attorneys for competent and ethical representation."[18] We will not waive a rule and pave the way for an applicant to practice law in this state unless we are satisfied that the applicant possesses the needed skill, knowledge, and ability to ethically represent Utah citizens.[19]

         ¶ 12 In articulating this standard, we reemphasize that we hold absolute discretion in deciding when to waive one of our admission rules. Future petitioners are on notice that we will not open the courthouse doors to grant waivers as a more convenient alternative to compliance with the rules. The admission rules stand as important gatekeepers that, in the majority of cases, accurately gauge an applicant's competence to practice law in this jurisdiction. So we may decline to waive our rules whenever we determine a petition does not present an extraordinary case and require the applicant to demonstrate his competence by satisfying the rule. A guiding star of this analysis is that the ...


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