                                                                                          10/06/2017


          IN THE SUPREME COURT OF THE STATE OF MONT_ANA,

                                       AF 11-0244                        t'ILED       Case Number: AF 11-0244




                                                                               OCT 06 2017
                                                                               Ed Smith
                                                                          r-Pi< OF THE SUPREME COURT
IN RE THE RULES FOR ADMISSION
                                                                     ORDER
TO THE BAR OF MONTANA




       In July 2017, this Court adopted temporary arnendments to Rule 104 of the
Montana Board of Bar Exarniners' Rules as an interim means to accommodate examinees
who are breastfeeding. We invited comments on the arnendments and received several.
The Court extends its thanks to the Board of Bar Examiners for its review of the issue
and to all those who took the time to offer input on thc proposal.
       After review and consideration of the comments to the temporary amendments, at
a public meeting on October 3, 2017, the Court determined that minor changes to the
interim rule are in order.
       IT IS NOW ORDERED that the attached Montana Board of Bar Examiners'
Rules, including a new subsection F to Rule 104, are ADOPTED,effective immediately.
       A copy of this Order and the attached rule shall be posted on the Court's website.
In addition, the Clerk is directed to provide copies of this Order and attachment to the
Executive Director and the Bar Admissions administrator of the State Bar of Montana
with the request that they be posted on the State Bar's website; to the Chair of the Board
of Bar Examiners; to Dean Paul Kirgis of the Alexander Blewett III School of Law; to the
State Law Library; to Todd Everts, Connie Dixon, and Molly Peterson at Montana
Legislative Services Division; to Helene Haapala and Scott Moe at Thomson Reuters;
and to Robert Roy and Patti Glueckert at LexisNexis.
       Dated this 17 day of October, 2017.

                                                               Chief Justice
     MONTANA SUPREME COURT BOARD OF BAR EXAMINERS'RULES

Rule 101 — Board of Bar Examiners.

A.    Contact with Board of Bar Examiners. All correspondence or other
      communications to the members of the Board of Bar Examiners must be directed
      to the Bar Admissions Administrator, State Bar of Montana, P.O. Box 577,
      Helena, MT 59624, phone (406) 442-7660. Applicants may not contact Board
      members directly, unless given prior approval by the Bar Admissions
      Adrnin istrator.

B.    Public Request. Upon request, the Bar Admissions Administrator or the
      Adrninistrator's designee may confirm that an individual has filed an application
      for admission to the State Bar of Montana.

Rule 102 — Bar Examination Content, Certification, and Dates.

A.   Examination Composition. The Uniform Bar Examination is prepared and
     coordinated by the National Conference of Bar Examiners and comprises the
     Multistate Essay Examination (MEE), two Multistate Performance Test tasks
     (MPT), and the Multistate Bar Examination (MBE). It is uniformly administered,
     graded, and scored by user jurisdictions and results in a portable score subject to
     individual jurisdiction admission requirements. Applicants must sit for all
     cornponents in the same administration to earn a Uniform Bar Examination score.
     Scores from any one component of the Uniforrn Bar Examination may not be
     carried forward to any subsequent exarnination. An applicant must sit for all
     components of the Uniform Bar Examination in the sarne adrninistration to gain
     admission to the State Bar of Montana.

B.    Certification. An applicant may not sit for the Montana Uniforrn Bar
      Examination unless the applicant has been duly certified or conditionally certified
      by the Cornmission on Character and Fitness.

C.    Dates of Examination. The Uniform Bar Examination is administered over two
      days. The MBE is given annually on the last Wednesdays of February and July,
      and the MEE and MPT are given on the preceding Tuesdays. Unless otherwise
      directed by the Board, the February examinations are administered in Helena,
      Montana, and the July examinations are administered in Missoula, Montana. The
      exarnination facility is deterrnined by the Board.

D.   Montana Law Seminar. A11 applicants must attend a Montana Law Seminar
     (MLS)as a prerequisite to adrnission to the State Bar of Montana. The seminar is
     held twice annually on the Thursday immediately following the administration of
     the Uniform Bar Examination or other date directed by the Board.

     The Board may establish a two-track approach to the MLS with all applicants
     taking the same course in one session and splitting the other session into litigation
     and commercial/transactional tracks. Lirnited portions of the MLS may be by
     video, recorded, or live via video link.

Rule 103 — Examination, Administration, and Grading.

A.   Attendance at Examination. An applicant rnay not be admitted to a Uniforrn
     Bar Examination session more than one-half hour after the session begins. An
     applicant who is admitted after an examination session begins may not receive
     extra time and the examination session will conclude as scheduled.

B.   MEE and MPT Grading. Each examination paper produced by an applicant on
     the MEE and MPT is separately graded. Examination papers are graded and
     credited by applicant nurnber and not by applicant name.

C.   Score Combining. MBE answer sheets are scanned and centrally scored by the
     National Conference of Bar Examiners. MEE and MPT answers are graded on a
     scale of zero to six, with six being the highest qualifying score and zero being the
     lowest possible score. All scores are converted to the 400 Uniform Bar
     Examination point scale and cornbined with the MBE scaled scores. MEE and
     MPT scores are scaled to the MBE, with the MBE weighted 50%, the MEE 30%,
     and the MPT 20%.

     An applicant with a combined scaled score of 266 or higher will be deemed to
     have passed the Montana Uniform Bar Examination.

D.   Disruption During Examination. Should a serious disruption occur during any
     portion of a Uniform Bar Exarnination session, the Bar Adrnissions Administrator
     or proctors rnust record the incident on the proctor and irregularity report forms
     and the Board will be notified. If examination time is lost by the general
     examination population due to the disruption, a corresponding amount of time will
     be added to the end of the same exarnination session, if reasonably feasible.

E.   Individual Emergencies During Examination. If during the course of Uniform
     Bar Examination adrninistration an applicant has a sudden and unexpected
     emergency not of the applicant's rnaking and the Bar Admissions Administrator
     has approved the applicant's departure or other inability to complete the
     exarnination, the departure will be treated as a deferral and the fees will transfer to



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     the next examination. The Bar Admissions Adrninistrator will record the incident
     on the proctor and irregularity report forrns and the Board will be notified.

Rule 104 — Testing Accommodations.

A.   Application Deadline for Testing Accommodations. An applicant who claims a
     disability and who seeks an accommodation to sit for the Uniform Bar
     Examination shall submit a request for the accommodation with supporting
     evidence by the application filing deadline for the relevant Uniform Bar
     Examination adrninistration unless the disability occurs between the application
     filing deadline and the relevant Uniform Bar Examination administration.

B.   Consideration of Testing Accommodation Requests. Requests for testing
     accornmodation are considered on a case-by-case basis. To qualify for
     accommodation, the requesting applicant must submit evidence sufficient to
     satisfy the Board or its designee that:

     1.    the applicant is otherwise qualified to sit for the Unifonn Bar Examination;
     2.    the applicant suffers from a disability;
     3.    the disability limits the applicant's ability to demonstrate, under standard
           testing conditions, that the applicant possesses the knowledge, skills, and
           abilities tested on the Uniform Bar Examination;
     4.    the disability is permanent or long-term;
     5.    the disability has a current substantial impact on the applicant. A mere
           submission of a rnedical diagnosis of impairment is insufficient to qualify
           the applicant for accommodation; and
     6.    the requested accommodation must address only a disability the law
           recognizes and must be tailored to address the disability as it relates
           to the Uniform Bar Examination testing conditions.            The requested
           accommodation may not give the applicant an advantage over other
           applicants, but must permit the applicant to perform "on a level playing
           field" with other applicants.

     Requests for accomrnodations will be considered by the Board or its designee
     based on the information subrnitted by the applicant and other information as may
     be reasonably available to the Board. Taking into account the resources available
     to it, the Board rnay, but is not required to, seek the assistance of experts on the
     particular request for accommodation.
     The Board may require the applicant to provide additional information relating to
     the claimed physical or mental irnpairment and prior testing accommodations
     received, and may require the applicant to submit to examination by a qualified
     professional designated by the Board in connection with the applicant's requested
     testing accommodation.


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C.   Appeal of Board Decision. The Board's decision on whether to grant the
     requested accommodation or to offer an alternative accommodation is final. An
     applicant rnay petition for relief from the Board's decision by petitioning the
     Montana Suprerne Court.

D.   Subsequent Accommodation Requests.

     Applicants who retake the Uniforrn Bar Examination shall subrnit "Form 1:
     Applicant Request for Test Accommodations" each time they apply for the
     Uniform Bar Examination, even if they previously requested and were granted
     accommodations by the Board. It is not necessary to resubmit supporting
     evidence that was submitted with a previous request if the applicant sat for the
     Uniform Bar Examination within the preceding three years and:
            (1)is requesting the same accommodation that was previously granted; and
            (2) has had no material changes in the physical or mental irnpairrnent for
     which the previous accommodation was granted. New supporting evidence is
     required if there is any change in the requested accornmodation. An update to
     prior medical evidence assessing the applicant's current functional limitations and
     ongoing need for accommodation is required if the nature of the applicant's
     impairment changes. The Board may require an update to prior evidence in all
     cases in which it deterrnines that the prior evidence is insufficient to establish the
     applicant's current level of impairrnent and need for accommodation.

E.   Definitions.

     1.    "Accommodation" means an adjustment to or modification of the Uniform
           Bar Exarnination testing conditions that addresses the functional limitations
           related to the applicant's disability without:

           a.     fundamentally altering the nature of the Uniform Bar Examination or
           the Board's ability to determine through examination whether the applicant
           possesses the necessary knowledge, skills, and abilities to pass the Uniform
           Bar Examination;

           b.       irnposing an undue burden on the Board;

           c.       compromising the security ofthe Uniform Bar Examination; or

           d.       cornpromising the validity of the Uniforrn Bar Exarnination.

     2.    "Disability" rneans a disability under the Americans with Disabilities Act
           of 1990(ADA), which defines a person with a disability as a person with a



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            physical or mental impairment that substantially limits one or more major
            life activity that is of central importance to daily life.

     3.    "Qualified professional" means a licensed physician, psychiatrist, or other
           health care provider who has cornprehensive training in the field related to
           the applicant's disability.

     4.    "Substantially limits one or more major life activity" rneans the physical or
           mental impairment prevents or severely restricts the applicant from
           performing or engaging in activities that are of central importance to most
           persons' daily lives.

F.   Breastfeeding-Related Requests. Although breastfeeding is not a disability as
     defined above, and is not to be considered one for purposes of granting
     accommodations, the Board will afford breastfeeding applicants accommodations
     in a manner consistent with public policy and law. Any breastfeeding applicant
     seeking such an accomrnodation shall submit a letter request for breastfeeding
     accommodation to the Bar Admissions Administrator by the filing deadline for the
     relevant Uniform Bar Examination administration stating the type of
     accommodation desired. Thc applicant need not submit the request for
     breastfeeding accommodations on the form otherwise required for a disability-
     based accommodation. A doctor's statement need not be submitted with the
     request but may be asked for by the Board at a later date. The request for
     breastfeeding accommodations should include documentation of the child's date
     or expected date of birth. Individual accommodations may vary, in the Board's
     discretion, depending upon each applicant's request or circumstances and whether
     such accomrnodations are medically necessary for the health of the applicant or
     the infant. The types of accommodations that may be granted by the Board
     include but are not limited to the following, depending on each individual
     applicant's circumstances:

     1.    Permission to bring to the exam and store at the testing site necessary
           medical equipment and supplies, including a breast pump, storage supplies
           and a cooler;

     2.    A private or semi-private location with an electrical outlet, if requested, to
           breastfeed or express breast milk. A semi-private location is defined as one
           that is located away from other applicants, except other applicants who are
           also breastfeeding or expressing milk.

     3.    Stop-the-clock breaks during each three-hour testing period to be used
           soley for the purpose of breastfeeding the infant or breast pumping, if



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            existing breaks     are   insufficiently   frequent   for   an   individual's
            circumstances.

      The Board's decision on whether to grant the requested accommodation or to offer
      an alternative accommodation is final. An applicant may petition for relief from
      the Board's decision by petitioning the Montana Supreme Court.


Rule 105 — Rules of Conduct.

A.   Examination Rules of Conduct. An applicant shall abide by all rules and
     instructions governing the administration of all portions of the Uniform Bar
     Exarnination. An applicant MAY NOT:

      1.    falsify the application or proofs required for admission to the Uniform Bar
            Examination;

     2.     utilize any unauthorized notes, books, recordings, electronically retrievable
            data, or other unauthorized materials while taking the exarnination. The
            only items perrnitted in the examination room are those that have been
            approved by the Board: (a) computers specifically configured for use of
            computer-based testing, such as Exam Soft; or (b) blue books issued by the
            test proctors and approved writing tools. Any item that may provide the
            applicant with inforrnation or access to information other than the
            applicant's own knowledge is prohibited, including but not limited to notes,
            cell phones, backpacks, purses, wallets, cameras, electronic or wireless
            devices, or timing devices. The Board may prohibit any item not
            specifically referenced at any time, including at the examination session.
            Possession of a prohibited item in the examination may be treated as a
            cheating incident, and examination proctors are authorized to confiscate
            any unauthorized item.

     3.     use answers or information from other applicants while taking the
            examination;

     4.     provide answers or information to other applicants taking the examination;

     5.     read questions on the examination prior to the announcement to begin the
            examination;

     6.     continue to answer any question after the announcement to stop when the
            session has ended;



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      7.    remove any multiple-choice, machine-scored exarnination question from
            the exarnination room, or otherwise communicate the substance of any of
            those questions to others, including applicants or persons who are
            employed by or associated with bar review courses;

      8.    rernove any essay questions, scrap paper, or other materials from the
            examination room, or otherwise communicate the substance of any of those
            questions to others, including applicants or persons who are employed by or
            associated with bar review courses;

      9.    cornprornise the security or the integrity of the Uniforrn Bar Examination;
            or


      10.   disregard any instruction given by the Bar Admissions Administrator
            during the course of the exarnination or cause generalized disruption of the
            examination.

B.   It is the Board's policy that the Uniform Bar Examination administration and
     related conduct of a Montana Bar applicant be beyond reproach. Applicants are at
     all times to maintain a professional attitude toward other applicants, proctors, and
     other exarnination personnel. Conduct that constitutes a violation of these Rules,
     the Rules for Admission, or any rules or instructions provided by examination
     personnel rnay result in imrnediate disqualification to sit for and in ejection from
     the examination. Cheating or taking any action that disrupts or compromises the
     security or integrity of the Uniform Bar Examination rnay result in immediate
     disqualification to sit for and in ejection from the examination.

Rule 106 — Impoundment,Investigation, and Appeal.

A.   Impoundment of Examination Results. If the Board or the Bar Admissions
     Administrator has cause to believe an applicant has violated any of the rules of
     conduct set forth above, the applicant's bar exarnination papers and results may be
     impounded pending investigation by the Board.




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B.   Investigation by the Board of Bar Examiners Subcommittee.

     1.   The Bar Adrnissions Administrator shall refer any concern regarding
          violation of the Rules of Conduct to a subcornmittee of two rnembers of the
          Board for further investigation. In such investigation, the Bar Admissions
          Adrninistrator or the subcornmittee may obtain information that relates to
          the applicant's conduct, administer oaths and affirmations, and compel by
          subpoena the attendance of witnesses and the production of books, papers,
          and documents. The subcommittee may require sworn taped interviews
          with an applicant to clarify information or to facilitate the investigation.

     2.   If it appears to the subcommittee that there is credible evidence that would
          establish an applicant's violation of any rule of conduct, the Bar
          Admissions Administrator shall serve written notice on the applicant by
          certified mail stating with particularity the facts upon which the alleged
          violation is based.

     3.   The applicant shall file a verified answer with the Bar Admissions
          Adrninistrator within thirty days of service of the notice. The answer rnust
          identify with specificity the alleged violations disputed by the applicant and
          set forth any evidence that can contradict the charges. The applicant may
          request a hearing before the Board of Bar Exarniners. The applicant shall
          supply an original and seven copies of all materials to the Board's office.

     4.   ln the event the applicant does not submit a written answer as provided in
          Rule 106 B.3., the Board shall deem the facts set forth in the written
          charges to be established. The charges shall become part of a permanent
          file of the Commission on Character and Fitness. The applicant may not
          reapply for admission for at least three years from the date the Board
          confirms the violation.

     5.   If an applicant files an answer but does not request a hearing, the Board
          Chair shall appoint a committee made up of Board members other than the
          two members assigned to investigate the claimed violation. The committee
          must consist of no fewer than three and no more than 5 members. If there
          is an insufficient number of Board members available for appointment, the
          Chair may appoint a mernber of the State Bar of Montana in good standing
          to sit as a rnernber of the cornrnittee. Thc cornmittee shall review the
          evidence gathered by the Bar Admissions Administrator, the two-member
          subcornmittee, together with the subrnission received from the applicant,
          and render a final decision by a majority vote of its members.




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C.   Hearing.

     1.     If the applicant requests a hearing, the hearing panel rnust consist of a
            majority of the members of the Board who did not serve on the
            subcommittee appointed by the Bar Adrnissions Administrator. A majority
            of the hearing panel shall make the final decision.

     2.     The Board shall notify the applicant in writing of the date, tirne, and place
            of the hearing and of the applicant's right to be represented by counsel at
            the hearing, to exarnine and cross-exarnine witnesses, and to present
            evidence.

     3.    The applicant shall supply a list of witnesses, including addresses and
           phone numbers, and all supporting documentation including any evidence,
           affidavits, and exhibits the applicant determines are necessary to support
           the applicant's position at Ieast ten days prior to the hearing. The applicant
           shall supply an original and seven (7) copies of all materials to the Board's
           office.

     4.    The hearings before the Board must be open to the public unless the
           applicant requests that they be private and the panel chair finds that the
           demands of the applicant's individual privacy clearly exceed the merits of
           public disclosure and rules that the hearing be closed.

     5.    The Rules of Evidence need not be observed. The Board rnay take
           evidence in other than testimonial form and rely upon records and other
           materials furnished to the Board in response to its investigation. The Board
           may determine whether evidence to be taken in testimonial form will be
           taken in person at the hearing or upon deposition, but in either event all
           testimonial evidence must be taken under oath. The Board shall maintain a
           complete record ofthe hearing.

     6.    The hearing panel shall determine by a preponderence of the evidence
           whether the applicant violated the exarnination rules of conduct.

D.   Findings and Decision.

1.   The Board shall issue a written decision which shall be served upon the applicant
           by certified mail and reported to the Commission on Character and Fitness.

2.   In its decision the Board may take one or more of the following actions:

     a.    void the results ofthe examination taken;


                                          9
     b.   transmit a written report of the matter to bar admission authorities in any
          jurisdiction;

     c.   take such other action as the Board deems appropriate.

E.   Supreme Court Review.

     1.   The final decision of the Board is conclusive unless a verified Petition for
          Review is filed by the applicant with the Montana Supreme Court within
          thirty days following service of the decision upon the applicant. The record
          of the hearing before the Board must be transcribed at the applicant's
          expense and provided to the Court. A copy of the Petition for Review and
          the hearing transcript must also be served upon the Board.

     2.   Within thirty days of receipt of the Petition, the Board shall transmit the
          entire record to the Clerk of the Supreme Court with a response to the
          Petition fully advising the Court as to the Board's reasons for its decision,
          and admitting or contesting any assertions made by the applicant in the
          Petition.




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