Saturday, November 22, 2008

Online Graduate May Sit For Massachusetts Bar

The Massachusetts Supreme Judicial Court has granted permission to a graduate of an online law school, waiving the requirement of graduation from an ABA accredited school. The applicant's qualifications:

In July of 2002, Mitchell received his undergraduate degree, a bachelor of science in law, from Concord, and in July, 2004, he received his juris doctor degree from the same institution. In connection with the law degree, Mitchell graduated with "highest honors," and was the class valedictorian. Following his graduation, he sat for and passed the California bar examination, and was admitted to the bar of California in November, 2004. He was admitted to practice before the United States Court of Appeals for the First Circuit in December, 2004, and before the United States District Court for the Central District of California in March, 2005.

The court concluded:

The record contains quite specific information about the required and elective courses that Mitchell took as a law student at Concord--the course subjects, an overview of topics covered, and the legal texts and authors that were used--as well as a description of the extensive online research resources that were available to him. Our review of these materials indicates that Mitchell's core course of study, and legal research resources, were substantively very similar to the core content offered by ABA-approved law schools. See Osakwe, 448 Mass. at 92-93. Moreover, and of great importance, the record reveals that Mitchell achieved an exemplary degree of success as a law student. Thus, he won "outstanding achievement" awards in three of his first year courses, an award for best oral advocate and best brief in his moot court exercise in the third year, and over-all academic honors in all four of his law school years, graduating with highest honors and as valedictorian of his class in July of 2004. [FN10] Finally, we find the following factors significant: (1) the State of California, through its bureau for private postsecondary and vocational education, had specifically approved Mitchell's law school, Concord, to grant a juris doctor degree at the time Mitchell was a student; (2) Mitchell has taken and passed the California general bar examination and did so the first time he took it; (3) Mitchell has taken and passed the multistate professional responsibility examination with a scaled score well above that required by the board (see note 3, supra ); (4) he has been admitted to practice both in California and before the United States Court of Appeals for the First Circuit; and (5) Mitchell, who has represented himself throughout this case, filed briefs and gave an oral argument in this court that were of commendable quality, providing us with a concrete and positive illustration of his skills in legal analysis, legal writing, and advocacy. In sum, we are persuaded that in Mitchell's case, the underlying level of purpose of our ABA approval requirement--to insure an appropriate level of legal education--has been met.

There was a dissenting opinion:

Here, because of present ABA standards, there is no imminent ABA approval.   Ante at,. Indeed the court states that the ABA process of reviewing its current standards has just begun.  Ante at. 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.
      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.

The case is Mitchell v. Board of Bar Examiners, decided November 20, 2008. (Mike Frisch)

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What do the arguments contained in the dissent have to do with the real issue before the court of whether the applicant is properly qualified to fulfil the roll of attorney in Massachusetts? As for the final quoted paragraph, surely determining whether candidates are qualified to act as attorneys is the roll of the court? If their bar exam cannot do that then maybe they need to find another way? Laziness does not justify blind deference to a body like the ABA which has a clear protectionist interest at stake.


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