Petition for Extraordinary Relief
Mark Durbano, Douglas M. Durbano, Layton, for petitioner
Elizabeth A. Wright, Salt Lake City, for respondent
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Petersen joined.
1 Dallin Mark Durbano wants to be a member of the Utah Bar.
After abandoning a request that he receive an accommodation
for his Attention Deficit Hyperactivity Disorder, Durbano
took the Bar Exam and fell just short of a passing score. He
now brings this petition for extraordinary relief and asks us
to order his admission by waiving one of the following Rules
Governing the Utah State Bar: (1) rule 14-711(d) setting a
minimum passing score for the Uniform Bar Examination of 270;
(2) rule 14-703(a)(5) requiring a student applicant to pass
the MPRE and the Uniform Bar Examination; or (3) rule
14-706(a) providing that an applicant who has a disability as
defined by the Americans with Disabilities Act may request an
accommodation and setting forth the requirements that the
applicant must meet. Durbano also asks that if this court is
not inclined to waive any of those rules, that we review his
exam and admissions packet, evaluate his ability to practice
law, and admit him to the Utah Bar.
2 Durbano has raised interesting and important questions
about the way in which the Utah State Bar interacts with
those requesting accommodation. And he has given us reason to
think about ways in which the Bar can provide more
transparent and responsive service to those seeking
accommodation. But he has not convinced us that we should
exercise our discretionary authority to grant the relief he
seeks. Accordingly, we deny the petition.
3 Dallin Mark Durbano suffers from Attention Deficit
Hyperactivity Disorder (ADHD). A physician diagnosed Durbano
when he was in law school. Durbano reports that the diagnosis
was a revelation that explained struggles that he had dealt
with during his educational career. His law school provided
accommodation for his disability and his scholastic
performance improved markedly.
4 Durbano graduated from law school in May 2018 and made
plans to sit for the July 2018 Bar Examination in Utah.
Durbano initially sought accommodation for the Bar Exam. The
Utah State Bar (Bar) requires those seeking accommodation to
provide evidence of their disability and need for
accommodation. See R. Governing Utah State Bar
14-706(a). Among other things, the Bar's accommodation
request form requires score reports and written verification
of any accommodations received or denied for each of the
following standardized tests that the applicant had taken-the
SAT, ACT, GRE, MCAT, GMAT, LSAT, and MPRE. An applicant must
also have his physician or other appropriate professional
verify the diagnosis and recommend appropriate accommodation.
5 Durbano indicated in the Bar application that he has a
disability for which he was requesting test
accommodations. He did not submit any supporting
documentation with this request, however. Durbano asserts
that he experienced difficulty in obtaining some of the
documentation he was required to submit. For example, he
claims that he was unable to acquire his SAT and ACT scores.
Durbano explained that he called the College Board in attempt
to locate his scores. Additionally, he claims he was unable to
secure a physician's evaluation because the physician who
diagnosed him practices in California.
6 Durbano signed the "Declaration of Completion"
and submitted the application on March 10, 2018. Signing the
"Declaration of Completion" affirms that an
applicant has submitted "all documents" the
application requires and that the applicant attests to the
accuracy of the information provided. The declaration also
requires the applicant to acknowledge that he or she
understands that if the application is missing any
documentation, the Bar may reject it.
7 Thereafter, the admissions administrator for the Bar
emailed Durbano, notifying him that his Bar application
indicated that he was requesting test accommodation, but that
the Bar had not received any supporting documentation. The
admissions administrator reminded Durbano that he would need
to pay a late fee and upload his documentation if he still
wanted the Bar to consider an accommodation request. She also
informed him that he would need to submit an amendment to his
application if he no longer intended to seek accommodation.
8 Durbano responded, "I'll need to upload an
amendment form because I wasn't able to find all the
documentation (past test scores, etc[.]) required by the bar.
How do I submit an Amendment form?" The Bar admissions
administrator directed Durbano to the amendment form.
9 Durbano asserts that he feared his entire Bar application
would be rejected if he did not submit the required documents
for his accommodation request. To avoid the risk, he chose to
rescind his accommodation request and take the Bar Exam
without any accommodation. As part of his amendment, Durbano
stated that "I have a disability requiring
accommodation. However, I'm unable to find test scores
from over 15 years ago. Thus, I'm obliged to update my
response to 'no, '" not seeking an
10 Durbano sat for the July 2018 exam. He achieved a score of
264, six points short of the minimum passing score of 270.
Consistent with how he predicted he would fare without
accommodation, he failed to complete the essay section.
11 Durbano reapplied to take the Bar Exam in February 2019
and again indicated that he was requesting a testing
accommodation. But again he withdrew his request. And did so
for the same reasons as before.
12 Durbano then filed this petition for extraordinary relief.
Five days after filing the petition, he emailed the Bar:
My reexamination application initially had a request for
testing accommodation for my ADHD. However, as was the case
in my July 2018 bar exam application, I am unable to produce
many of the documents required by the application portal in
order to even apply for those accommodations. As a result, I
have amended my reexamination application, rescinding the
request for accommodations . . . .
However, I genuinely have a disability and need
accommodations. The application guidelines and Rules
Governing Admission make clear that the Admissions Office
hasn't the power to grant a waiver of the
rules/requirements. At least that's how I understand
But I thought I'd at least try asking if there is any
flexibility in the application requirements for persons with
disabilities applying for disability accommodations? Is ...