Thursday, July 18, 2019

No Extraordinary Relief For Bar Exam Failure In Utah

The Utah Supreme Court denied extraordinary relief to an applicant who fell "just short " of a passing score after not being granted a disability accommodation

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.

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.

Scant comfort there.

He had not pursued available remedies to the denial

A person displeased with the Test Accommodations Committee’s decision may request review of that decision by the Bar’s Admissions Committee. Id. 14-706(c); see id. 14-715(a)(1). And that committee’s decision can be appealed to this court. Id. 14-715(e).

Durbano could have followed this path to advance his claim that he was entitled to an accommodation. That is, Durbano could have submitted a request for a testing accommodation, even if incomplete. And if denied, he could have requested that the Bar Admission’s Committee review the Testing Accommodations Committee’s decision. If again denied, he could have then appealed the Committee’s decision to this court. Durbano disagrees and contends that proceeding down that route would have been futile.

...But Durbano’s complaint is not with the rule that allows the Bar to grant test accommodations in appropriate circumstances. His beef centers on how the Bar implements that rule. Put differently, no rule requires Durbano to submit his test scores and physician’s verification. These are requirements the Bar imposes. And the Bar has the ability to adjust those requirements in appropriate circumstances. The only requirement that the rule places on the Bar is that it review testing accommodation requests made in writing at the time a Bar application is submitted. See id. 14-706.

No extraordinary relief

Durbano next argues that we should either waive the rules that require an applicant to pass the Bar Examination or admit him to the Bar because “[s]trict adherence to the rules in [his] case would undermine [the Bar’s] purpose of protecting the citizens of Utah.” Durbano details his law school achievements, his community service, and his work as a legal intern and argues that these, among other things, demonstrate that he has the chops to be an attorney.

Even though Durbano’s achievements are laudable, we are unconvinced that we should overturn the system we have in place—even on a one-time basis—for evaluating fitness to practice law in the state of Utah. 

That system requires the applicant to pass the exam

A Bar Examination with a set passing score promotes a predictable and objective system. If we grant Durbano’s petition and admit him to the Bar, it is not difficult to foresee that we will soon be in the business of reevaluating the admission applications of others who fail to achieve a passing score. We understand that the examination process is not perfect, and that legitimately tough cases will live in the margins, but that is the price of a predictable and objective process. For these reasons, we deny Durbano’s petition for extraordinary relief.

(Mike Frisch)

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