Mitchell v. Board of Bar Examiners

Ireland, J.

(dissenting). I write separately because I disagree with the court’s conclusion that, given the American Bar Association’s (ABA’s) pending comprehensive review of schools and programs using online distance learning, equitable considerations weigh in favor of granting the plaintiff a waiver to sit for the Massachusetts bar examination. I would await the results of the ABA’s review.

As the court discusses, ante at 584-585, a working group was convened in response to this plaintiff’s request that S.J.C. Rule 3:01, § 3.3, as appearing in 382 Mass. 754 (1981), be amended to permit attorneys to sit for the Massachusetts bar examination if they are admitted to practice in other States and were graduated from American law schools that, although not ABA-approved, are authorized by State statute to grant law degrees. In 200.6, this court accepted the group’s recommendation that no amendment to our rule be adopted. We did however, request the ABA to give consideration to the issue of online distance learning when setting standards for ABA approval.

Thus, this court’s consideration of the issue this plaintiff presents has been thorough. One must assume that our decision to keep intact our own rule requiring that an applicant for the bar examination graduate from an ABA-approved law school was because we took seriously our statements that ABA approval serves an important function. Matter of Tocci, 413 Mass. 542, 548 (1992), quoting LaBossiere v. Florida Bd. of Bar Examiners, 279 So. 2d 288, 289 (Fla. 1973) (court relies on ABA accreditation because it provides objective method of determining quality of legal education, and financial limitations and other business make judiciary unequipped to conduct own evaluation). I see no reason to abandon our reliance on the ABA accreditation standards at this particular point in time. 1

Moreover, the facts in this case are distinguishable from the *591 facts in Novak v. Board of Bar Examiners, 397 Mass. 270 (1986), the case cited by the court for its conclusion that the equities weigh in the plaintiff’s favor. Ante at 589. The Novak decision concerned the 1980 amendment to SJ.C. Rule 3:01, § 3.3, as amended, 380 Mass. 942 (1980), which stated that, in order to sit for the Massachusetts bar, an applicant’s law school had to be accredited at the time the applicant was graduated. Id. at 270-271. Novak was graduated from his unaccredited law school in 1977. Id. at 271. However, the school was accredited three years later, in 1980. Id. In 1983, when Novak applied to sit for the Massachusetts bar examination, the question before the court was whether it was in the interest of equity and justice not to hold Novak to the 1980 amendment, where Novak reasonably anticipated ABA approval at the time of his graduation, and where two other applicants from Novak’s graduating class had been granted permission to take the Massachusetts bar examination (in 1978 and 1980). Id. at 271-274.

Here, because of present ABA standards, there is no imminent ABA approval. Ante at 582, 585. Indeed the court states that the ABA process of reviewing its current standards has just begun. Ante at 585. In addition, the plaintiff here does not state that he was somehow unaware of the hardships he could face when he chose to enroll in an unaccredited law school. See Matter of Tocci, supra at 545, 547 (denying waiver to sit for bar examination even though fact that applicant had to attend different law school from accredited one he enrolled in was not his fault; applicant made informed decision to attend unaccredited law school and recognized difficulty he would face).

The plaintiff points out, among other things, that his career made it more convenient to attend law school online and that his law school was significantly less expensive than traditional law schools. These considerations are hardly extraordinary. Many people give up careers, or attend law school while working full-time, all the while incurring great costs to themselves, financially and otherwise. Presumably part of the calculation of those who choose to incur those costs is that, to do otherwise, would be to incur a risk they would rather not take.

*592 Finally, I conclude that the court’s claim that it can limit its holding to the circumstances in this case is illusory. We do not know when the ABA will complete its review or, more importantly, what the result will be. The review for the current 2006 ABA standards began in 2003. As noted, the new ABA review has just begun. In the interim, I am concerned with the potential for having to assess large numbers of graduates from other online law schools.

For these reasons, I respectfully dissent.

Information contained in the record appendix reveals that, in Massachusetts, the over-all pass rate for the 2007 bar examination was 77% with an 82% pass *591 rate for students from ABA-accredited schools and a 38% pass rate for students from schools that were not ABA-accredited.