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Bar Admission Without Examination in Changing Times

Posted By By Thaddeus R. Lightfoot, Friday, December 22, 2017

In 2015, roughly 75 percent of newly admitted attorneys in this state passed the Minnesota Bar Exam, as provided in Rule 6 of the Minnesota Rules for Admission to the Bar.  The remaining 25 percent of the lawyers admitted to the bar in 2015 established competency to practice in Minnesota by obtaining a sufficient score on the Multistate Bar Examination (Rule 7B), receiving a sufficient score on the Uniform Bar Examination within the past three years (Rule 7C), or practicing law in 60 of the last 84 months (Rule 7A).

Rule 7A requires that an applicant for admission without exam be “engaged, as principal occupation, in the lawful practice of law” for at least 60 of the 84 months preceding the application. However, Rule 7A contains no specific hours-worked threshold to establish “principal occupation.” Rather, the Minnesota Board of Law Examiners in 2013 adopted a policy stating that “engaged, as principal occupation” in the practice of law means “full time or substantially full-time (at least 120 hours per month).”

In 2016, Kathleen Reilly, a member of the Illinois bar since 2005, attempted to rely on Rule 7A to become a member of the Minnesota bar. To establish competency, Ms. Reilly submitted 137 pages of written work product and testimony from her former boss, a retired federal magistrate judge. However, due to family responsibilities, Reilly practiced law just 16 hours per week after 2011. The Minnesota Board of Law Examiners denied her application for admission without examination and Reilly filed a petition with the Minnesota Supreme Court to review the board’s decision. In May 2017, the Court denied Reilly’s petition but issued an order requiring the board to review Rule 7A. Lisa Buck wrote an excellent article on the Reilly case, which was published in the September/October 2017 issue of the Hennepin Lawyer.

In September 2017, the Minnesota Board of Law Examiners requested comments on Rule 7A by November 30, 2017. HCBA, as authorized by its board of directors, submitted comments on November 29. The HCBA expresses its appreciation to Katherine A. McBride, an HCBA member and partner at Meagher & Geer, who assisted in preparing HCBA’s comments. In its comments, HCBA questioned the Minnesota Board of Law Examiners’ policy of 120 hours per month to satisfy the “principal occupation” requirement of Rule 7A. To reflect the “reality of legal practice today,” HCBA encouraged the board to interpret “principal occupation” as the practice of law for at least 80 hours, not 120 hours, per month. HCBA offered four rationales for the 80-hour threshold.

First, HCBA stated the threshold—essentially a half-time or more basis—will not jeopardize the quality of legal services available to the public. Second, HBCA commented that the 80-hour threshold will promote diversity by allowing historically under-represented groups—notably women, lawyers with disabilities, lawyers retreating from traditional full-time practice, and other lawyers who must attend to family obligations or health issues—to be admitted under Rule 7A. Third, HCBA noted that of the 11 jurisdictions with a stated minimum-hour requirement for admission without examination, only Minnesota and Vermont set a requirement or policy for the practice of law over 1,000 hours per year. Fourth, HCBA stated its bright-line threshold of 80 hours per month reflected the changing nature of the practice of law while providing a clear standard for out-of-state lawyers who must evaluate whether they must take the Minnesota Bar Examination to become licensed in the state. HCBA also suggested there may be circumstances where applicants do not meet the 80-hour per month threshold but may nevertheless merit consideration for admission. For such applicants, HCBA urged the Minnesota Board of Law Examiners to evaluate the applications for admission using case-by-case considerations to determine whether the applicant is professionally competent.

The practice of law is changing. Some commentators suggest the practice of law has changed more in the last 15 years than the previous 150. That may be hyperbole. The transformation of legal practice did not occur in a vacuum and some social, economic, and technological shifts in the practice of law arose from changes applicable to society in general. But the changes in the practice of law are occurring at a pace even more accelerated than those in society at large. Minnesota’s rules of admission to the bar need to reflect those changes. HCBA hopes the Minnesota Board of Law Examiners carefully considers HCBA’s comments on Rule 7A. The rule should acknowledge that part-time lawyers with five years or more of practice may be just as competent as those lawyers newly admitted to the Minnesota bar by passing the bar exam.

 

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