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In re Durbano

Supreme Court of Utah

July 17, 2019

In re Dallin Mark Durbano
v.
Utah State Bar Respondent. Dallin Mark Durbano Petitioner,

          On Petition for Extraordinary Relief

          Dallin Mark Durbano, Douglas M. Durbano, Layton, for petitioner [1]

          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.

          OPINION

          PEARCE, JUSTICE

         INTRODUCTION

         ¶ 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.

         BACKGROUND

         ¶ 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.[2] 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.[3] 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.[4]

         ¶ 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 accommodation.

         ¶ 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 them.
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 ...

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