                                                                                            07/14/2020


          IN THE SUPREME COURT OF THE STATE OF MONTANA                                  Case Number: AF 11-0244


                                        AF 11-0244

                                                                                FILED
IN RE RULES FOR ADMISSION                                          ORDER       JUL 1 4 2020
TO THE BAR OF MONTANA
                                                                            Bovven Greenwood
                                                                          Clerk of Supreme Court
                                                                             State of IVIontana




       On July 9, 2020, attorney Elizabeth A. Brennan petitioned this Court on behalf of
Members of the Class of 2020 (Petitioners) regarding the Montana Uniform Bar Exam,
scheduled for July 28-29, 2020, in the University Center Ballroom at the University of
Montana in Missoula. Petitioners allege that the safety measures that have been put in
place due to the COVID-19 pandemic are insufficient to mitigate the risk and that the
Temporary Rules for Admission adopted by this Court on June 17, 2020, are not
sufficiently comprehensive to address the risks to all examinees. Petitioners argue that this
Court should either grant diploma privilege and permanently waive the requirement of
passing a Bar exam to prospective examinees who meet certain criteria as proposed by
Petitioners or order the institution of additional safety measures to mitigate the risk of
COVID-19 transmission during the Bar examination.
       After receiving this petition, we requested expedited responses from the State Bar
of Montana (State Bar) and the Montana Board of Bar Examiners (Board). The Board
responded in opposition to this petition and further indicated that the State Bar supports the
Board; this Court should administer the exam in conformance with all applicable health
regulations. We further received a few public comments on the petition, including Bar
passage and employment data from Paul F. Kirgis, Dean of the University of Montana
Alexander Blewett III School of Law.
       Petitioners allege the circumstances under which the Bar will be administered
inadequately mitigates the risk COVID-19 poses: approximately 90 people will sit in a
room together for 12 hours over two days; it is unclear if all attendees will wear masks
during the examination; even ifthe room is partitioned, all attendees will "breathe the same
air, use the same bathrooms,and share the same hallways" during the two-day examination;
examinees are not required to self-quarantine prior to attending the examination; and
nothing guarantees that examinees will behave safely during non-examination hours.
      The Board responds that the arrangements it has made for the administration ofthe
July examination meet all existing state and local requirements, including the requirements
set forth in the May 28,2020 Order ofthe Missoula City & County Health Officer and that
Order's Appendix A:Events and Gatherings with More Than 50 People. The Board asserts
that the precautions it intends to employ include: presenting the Montana Law Seminar
electronically to eliminate the need for a third day of in-person attendance; requiring
attendees wear face masks at all times; sanitizing all public areas, including restroorns;
creating additional signage to direct the flow of foot traffic in and out,of the examination
room; and making hand sanitizer readily available at the sign-in table and throughout the
examination room. The Board further asserts that under the May 28, 2020 Order of the
Missoula City & County Health Officer, events of 51 to 250 attendees are explicitly
allowed in Missoula so long as appropriate precautions are taken, and the Board and State
Bar have received comment from the Missoula City & County Health Department that their
plan for administering the Bar is appropriate under the circumstances. The Board further
asserts that the University Center Ballroom is 10,437 square feet in area and has a seating
capacity of 1,000. It explains that the Ballroom will be divided in half; 89 individuals are
expected to sit for the Bar exam in the Ballroom, in groups of 44 and 45, and that each
examinee will have their own table that they will use for both days.1
       The Board also points out that this Court issued an Order on June 17, 2020, which
grants a one-year provisional license to recent law school graduates, pursuant to a petition
from the State Bar of Montana Board of Trustees. In re Rulesfor Admission to the Bar of
Montana,. No. AF 11-0244, Order (June 17, 2020). That Order granted the adoption of
Temporary Rules for Admission to the Bar of Montana. These Terhporary Rules

 The Board further represents that an additional seven individuals will take the Bar examination
in special accommodations rooms,for a total of96 anticipated examinees.
                                               2
recognized the extraordinary circumstances created by the _COVID-19 pandemic and
provided that individuals who- met certain criteria could apply for and obtain provisioftal
admission to the Bar. This provisional admission would allow these individuals to appear
in courts of record, administrative tribunals, arbitration hearings, and other judicial and
quasi-judicial proceedings in all civil and criminal matters. However, every provisionally
admitted individual would be required to be supervised by a lawyer who also met certain
criteria, and the provisionally admitted individual would need to disclose their provisional
status and obtain consent from any client they represented. For criminal matters in which
a defendant has the right to counsel, the supervising lawyer would be required to be
personally present at court proceedings. The Temporary Rules firther provide that
provisional admission would terminate under certain circumstances, including the
provisionally admitted individual's failure to sit for either of the first two Montana Bar
examinations administered after the Temporary Rules' adoption date.
       Petifioners argue the Temporary Rules are inadequate to address their concerns.
They allege that it is difficult for provisionally admitted individuals to study for the Bar at
a later date, presumably while employed Rill-time. A public commenter argued that the
personal presence of a supervising attorney was an unachievable tequirement for
provisionally admitted individuals employed by the Office of Public Defender, thereby
presenting nó genuine alternative to sitting for the July Bar examination.
       However, Petitioners acknowledge that this .Court must consider not only the
potential risk to the health of Bar examinees and their contacts, and the potential hann to
the careers of provisionally admitted lawyers, but also the question of whether admitting
individuals who meet certain criteria on a diploma privilege would harm the Bar as a whole.
While Montana once offered a diploma privilege, this Court eliminated it and required the
passage of a Bar examination as a prerequisite for admission to the practice of law in
Montana. In re Proposed Amendments Concerning Bar Examination, 187 Mont. 159, 609
P.2d 263 (1980). In deciding to eliminate diploma privilege, this Court explained:
             First and foremost, the complexity of the law as it has developed in
       our modern society has rendered .our present system for admission to the

                                              3
      practice oflaw outdated and inadequate to serve the present needs ofthe legal
      and judicial system. It necessarily follows that the public is not being
      properly protected. The wrong people are making threshold decisions that
      have the effect oftransferring control ofthe admission oflawyers to the Bar
      away from the court oflaw resort, i. e., when we eliminate from examination
      all but graduates from American Bar Association certified schools and
      extend the diploma privilege to out state law school graduates, we have
      effectively turned over the selection of who becomes a member of the
      Montana Bar to the American Bar Association, a nonprofit professional
      association, and the University of Montana School ofLaw. This is contrary
      to all present practice and has no recognizable redeeming value.



      There must be a balance between serving society and the fact that the law has
      obtained a complexity in rnodern times which is just a little too much for the
      ordinary citizen to assimilate in its totality. When we accept this rationale,
      there is obvious reason and purpose in evaluating competency through the
      use of more rigid and uniform minimum requirements for admission to the
      profession, and this will be done in the public interest.

In re Proposed Amendments, 187 Mont. at 161-62, 609 P.2d at 265.
      In their Petition, Petitioners assert that diploma privilege is not unknown in
Montana, and •that it was abolished in 1983. Petitioners claim that a tenth ofthe attorneys
who have indicated their support of the current Petition were admitted under diploma
privilege. However,Petitioners do not acknowledge the reasons why this Court abolished
diploma privilege, nor do they offer any argument for how this Court can balance the
potential harms ofPetitioners, the Bar, and the public interest..
       The Board urges this Court to carefully consider whether it can grant diplorna
privilege without running roughshod over the reasons why it abolished diploma privilege
in the first place. The Board contends:
             Statistics reflect that an average of 80-85% of the graduates of the
      Montana School of Law who sit for the exam and 75-80% of others pass.
      Petitioners suggest that all those who registered for the July 2020
      [examination] and those who deferred to sit for the February exam be
      admitted to the practice of the law in the State of Montana. That means
      anywhere from 15-20% of Montana graduates and 20-25% of out-of-state
      applicants who historically have not been able to pass the exam will be

                                              4
      granted a lifetime license to practice law in our state. That outcome would
      put our public at risk and is unfair to other practitioners.

      The statistics presented by Dean Kirgis indicate that in 2019, the weighted average
pass rate for first-time examinees was 81.43% for University of Montana law school
graduates and 83.94% for examinees as a whole. Assuming a generous 85% pass rate, this
would mean that if this Court granted diploma privilege in response to this Petition, 14 or
15 individuals would be admitted to the practice oflaw in this State who would otherwise
not be admitted. This is the harm this Court sought to avoid when it eliminated diploma
privilege some 30 years ago. Petitioners have provided no argument to justify this
outcome, nor do they address qualified graduates of other law schools that may take this
examination, or examinations in the future.
      Petitioners also point to the alternatives to in-person bar examinations that other
states will offer because of COVID-19. However, the Board asserts that other states have
different circumstances, including significantly higher numbers ofindividuals taking their
respective bar examinations. The Board also asserts that all of Montana's neighboring
states are proceeding with in-person bar examinations.
       As for the adequacy of the precautions the Board has undertaken, we find that the
Board has clearly given a great deal of thought to the actions it could take to mitigate the
risk to examinees. The Board has taken elaborate precautions that are consistent with the
reconmendations of the Missoula City & County Health Department as well as the
statewide directives that the Governor has put into place. We are confident that the Board
has taken appropriate precautions and will continue to do so should the situation change.
For example, while the Board had initially determined that examinees could remove their
masks while seated for the examination, it recently determined, consistent with new
recommendations ofthe Missoula City & County Health Department,that examinees must
wear masks during the examination.
      Finally, we reiterate that examinees have the option ofdelaying theBar examination
and practicing under the Temporary Rules. While this is not a perfect solution, examinees
are nonetheless not without an alternative to sitting for the July Bar examination.

                                              5
      IT IS ORDERED that the Petition is DENIED.
      The Clerk of this Court shall provide a copy of this Order to counsel for Petitioners,
the State Bar of Montana, and the Montana Board of Bar Examiners.
      DATED this /(14.) day of July, 2020.



                                                               Chief Justice


                                                  (94 m




                                             6
