Mitchell v. Board of Bar Examiners: An Update Regarding Online ... - 1

Mitchell v. Board of Bar
Examiners
Frederick Adolf Paola, M.D., J.D.
Professor, Health Professions Division
Medical Director, NSU PA Program SW FL
And
Affiliate Associate Professor of Medicine
Division of Medical Ethics & Humanities
USF College of Medicine

Facts
• Mitchell was a 2004 graduate of Concord Law
School (Concord)
– Wholly online law school
– Not ABA approved, but authorized by the State of
California to grant J.D.
• Mitchell takes and passes the California bar
examination in 2004
• He is a Massachusetts resident since 1981 and
desires admission to the Massachusetts (MA) bar

Facts
Authorized by Bureau for Private Postsecondary & Vocational Education, pursuant to
California Code, to grant the degree of juris doctor. Concord is also accredited by the
Distance Education and Training Council (DETC), a member of the Council for Higher
Education Accreditation (CHEA) and the International Association of Law Schools (IALS).

Facts
• Paths to admission to MA bar
– Admission to MA bar by passing the MA bar
examination
• SJC Rule 3:01, section 3.3 states: “Each applicant shall
have graduated with a degree of . . . juris doctor from a
law school which, at the time of graduation, is
approved by the [ABA] or is authorized by statute of the
Commonwealth to grant the degree of . . . juris doctor.”
– Admission to the bar “on motion”
• Attorneys who have attended non‐ABA‐approved law
schools may be admitted after 5 years practice; but . . .

Rule 3:01, section 3
• Section 3. Qualifications for Taking Bar Examination.
– 3.3 Law School. Each applicant shall have graduated with a
degree of . . . juris doctor from a law school which, at the time
of graduation, is approved by the [ABA] or is authorized by
statute of the Commonwealth to grant the degree of . . . juris
doctor.
– 3.4 Foreign Law Schools. Any applicant who received his legal
education at a law school located outside of . . . the United
States shall have . . . legal education equivalent, in the Board's
opinion, to that provided in law schools approved by the [ABA].
Before permitting such an applicant to take the law
examination, the Board in its discretion may, as a condition to
such permission, require such applicant to take such further
legal studies as the Board may designate at a law school
approved by the [ABA].

Rule 3:01, section 6
• Section 6. Admissions on Motion.
– 6.1 Attorneys Admitted in Other States. A person who has been
admitted as an attorney of the highest judicial court of any State . . . of
the United States may apply to the Supreme Judicial Court (SJC) for
admission on motion as an attorney in this Commonwealth. The Board
of Bar Examiners may, in its discretion, excuse the applicant from
taking the regular law examination on the applicant's compliance with
the following conditions:
• 6.1.1 The applicant shall have been admitted in the other state . . . for at least
five years prior to applying for admission in the Commonwealth . . . .
• 6.1.2 The applicant shall have so engaged in the practice or teaching of law
since the prior admission as to satisfy the Board of Bar Examiners of his or her
good moral character and professional qualifications.
• 6.1.4 The applicant shall have . . . graduated from a law school which at the
time of graduation was approved by the [ABA] or was authorized by a state
statute to grant the degree of . . . juris doctor.

Rule 3:01, section 6
• Section 6. Admissions on Motion.
– 6.2 Attorneys Admitted in Foreign Countries. A person who has been
admitted or enrolled as an attorney of the highest judicial court of a
foreign country may apply to the [SJC] to be admitted, without
examination, as an attorney in this Commonwealth. The Board of Bar
Examiners may, in its discretion, excuse the applicant from taking the
regular law examination on compliance with the following conditions:
• 6.2.1 The applicant's principal residence is in the Commonwealth of
Massachusetts.
• 6.2.2 The applicant shall have been admitted in the foreign country for at least
five years prior to applying for admission in the Commonwealth . . . .
• 6.2.3 The applicant shall have . . . completed such legal education as, in the
opinion of the Board of Bar Examiners, is equivalent to that provided in law
schools approved by the [ABA].
• 6.2.4 The applicant shall have so engaged in the practice or teaching of law
since the prior admission as to satisfy the Board of Bar Examiners of his or her
good moral characterand professional qualifications.

Facts
• Mitchell’s problems re: admission by exam
– Concord not authorized by MA statute to grant JD
– Concord not ABA‐approved under “Standards for
Approval of Law Schools”
• Standard 306: a law school may only allow 4
credits/term to be taught at a distance, and only 12
credits for an entire program
• Standard 701: a law school must have fixed facilities
• Standard 702: a law school must have a physical library

Facts
• Oct 2005: Mitchell seeks meeting with board discuss
his desire to become a member of the MA bar; board
informs Mitchell “it has no power to waive . . . the
Court’s rules”
• March 2006: Mitchell asks Court’s Rules Committee for
permission to sit for bar; majority of Committee votes
to deny request
• May 2006: Mitchell asks Rules Committee to either
reconsider or amend the rules to allow him to sit for
the bar exam; majority of Committee votes not to
reconsider, and solicits comments from Board of Bar
Examiners re: his proposal to amend the rules

Facts
• June 2006: board recommends against
amendment of rules
• December 2006: Rules Committee refers
Mitchell’s request to Justices of the SJC, who
convene a Working Group to consider
amendments to the rules regarding qualifications
to take the bar examination
– Working Group recommends that amendments to
rules not be adopted
– Court accepts recommendation but asks ABA to give
attention to the issue of distance learning in legal
education

Link to view oral argument
• http://www.suffolk.edu/sjc/archive/2008/SJC_
10157.html

Mitchell’s arguments
• Mitchell challenges constitutionality of the
rule as applied to him; alternatively . . .
• Mitchell seeks an amendment to the rule; or
• Mitchell seeks a waiver of the rule in his case

Mitchell’s constitutional argument
• Mitchell argues that requiring graduation from an
ABA‐approved law school as a condition to sitting
for the MA bar violates equal protection
guarantees of the MA Declaration of Rights
– Different law school educational requirements for
attorneys seeking admission to MA bar by taking the
bar exam and those seeking admission to the MA bar
on motion
– Different law school educational requirements for
attorneys trained in non‐ABA approved U.S. law
schools and foreign law schools

Mitchell’s rule change argument
• Proposed change to Rule 3:01, section 3.3
– 3.3 Law School. Each applicant shall have graduated with a
degree of bachelor of laws or juris doctor from a law
school which, at the time of graduation, is approved by the
American Bar Association or is authorized by statute of the
Commonwealth to grant the degree of bachelor of laws or
juris doctor, except that an applicant who has been
admitted as an attorney of the highest judicial court of any
state, district or territory of the United States alternatively
may have graduated from with a degree of . . . juris doctor
from a law school which, at the time of graduation, was
authorized by a state statute to grant the degree of . . .
juris doctor.

Court’s decision
• Court does not reach the constitutional
argument, deciding the case on other grounds

Court’s analysis
• The court decides to waive the law school accreditation
requirement set out in SJC Rule 3:01, section 3.3
• The court points out that it has equitable power to
waive requirements of a court rule concerning
admission to the bar
– Equity: “Justice administered according to fairness as
contrasted with the strictly formulated rules of common
law.” (Black’s Law Dictionary, Abridged 6 th ed., p 374)
• Historically: courts of equity (courts of chancery)
• Merger of actions at law and actions in equity
– Equitable remedies: injunction, specific performance

Court’s analysis
• 2 considerations
– Mitchell and his educational accomplishments in the field
of law
• Mitchell’s “core course of study . . . substantively very similar to
the core content offered at ABA‐approved law schools.”
• Received awards for
– “Outstanding achievement” in three first year courses
– “Best oral advocate” and “best brief” in third year moot court exercise
– Graduated with “highest honors” as class valedictorian July 2004
• Mitchell has passed California bar exam, and did so on first
attempt
• Mitchell admitted to practice both in California and before the U.S.
Court of Appeals for the First Circuit
• Mitchell represented himself (pro se) commendably

First Circuit

Court’s analysis
• Mitchell’s personal record “not a sufficient
reason in itself to waive the ABA approval
requirement of S.J.C. Rule 3:01, section 3.3; if
it were, the exception might well swallow the
rule.”

Court’s analysis
• Second consideration—recent announcement by
ABA “that it is undertaking a comprehensive
review of its approval standards,” including
“consideration of schools and programs using
online distance learning”
– “[I]n view of the fact that an online legal education
program such as Concord’s cannot qualify for ABA
approval under the current ABA standards and that
the situation . . . may change in the reasonably near
future, equitable considerations weigh in favor of
granting Mitchell a waiver . . . .”

Court’s conclusion
• “Our determination that a waiver . . . Is
appropriate for Mitchell is based wholly on
the particular circumstances presented in his
individual case . . . . We refer Mitchell’s
application to the board with instructions that
he be allowed to sit for the bar examination.”

Judge Ireland’s dissent
• Appointed Associate Justice
of the Supreme Judicial
Court in 1997
• The first African‐American
to sit on this bench in its
over three hundred year
history
• Received his B.A. from
Lincoln University, J.D. from
Columbia University Law
School, LL.M. from Harvard
Law School, and Ph.D. in
Law, Policy and Society from
Northeastern University

Judge Ireland’s dissent
• Disagrees with the majority’s conclusion that,
“given the ABA’s pending comprehensive
review of schools and programs using online
distance learning, equitable considerations
weigh in favor of granting the plaintiff a
waiver to sit for the Massachusetts bar
examination.” (Underlining added)

Judge Ireland’s dissent
• Reasons for disagreeing
– ABA approval serves an important function
(providing an objective method of determining
quality of legal education), and judiciary is illequipped
to conduct its own evaluation re: the
quality of legal education

Judge Ireland’s dissent
• Reasons for disagreeing
– Novak is distinguishable

Judge Ireland’s dissent
• “Finally, I conclude that the court’s claim that
it can limit its holding to the circumstances in
this case is illusory. . . . I am concerned with
the potential for having to assess large
numbers of graduates from other online law
schools.”

Distance‐learning law schools in
California*
• Abraham Lincoln University School of Law
• American Heritage University School of Law
• Aristotle University Institute of Law and
Jurisprudence
• California School of Law
• Concord School of Law
*Registered by Committee of Bar Examiners of the State Bar of California as
unaccredited distance‐learning law schools, conducting instruction and providing
interactive classes principally by technological means. See
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10115&id=5128#cals.

Correspondence law schools in
California*
• California Southern University (1978)
• MD Kirk School of Law (2005)
• Northwestern California University School of Law
(1982)
• Oak Brook College of Law and Government Policy
(1999?)
• University of Honolulu (1992)
• William Howard Taft University (1976)
*Registered by the Committee of Bar Examiners of the State Bar of California as
unaccredited correspondence law schools, conducting instruction principally by
correspondence.
See
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10115&id=5128#cals.

Unaccredited fixed‐facility law schools
in California*
• American College of Law
• Aristotle University College of
Law—Carlsbad
• Aristotle University College of
Law—Temecula
• California Southern Law School
• East Bay Law School
• Inland Valley University
• Irvine University College of Law
• John William University School
of Law
• Larry H. Layton School of Law
• McMillan Academy School of Law
• Pacific Coast University School of
Law
• Pacific West College of Law
• People’s College of Law
• Silicon Valley University Law
School
• University of Northern California
• University of San Luis Obispo
School of Law
• Western Sierra Law School
*Registered by the Committee of Bar Examiners of the State Bar of California as
unaccredited fixed‐facility law schools, conducting instruction principally in physical
classroom facilities. See
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10115&id=5128#cals.

Consequences
• Increased likelihood that the Rules Committee
will change the rule in Massachusetts
• Outcome may prod other states to allow
graduates of online law schools to sit for their bar
exams
• Outcome may increase the likelihood that the
ABA will more favorably deal with distancelearning
law schools in the future
• Outcome may portend a blurring of the line
between distance‐learning and fixed‐facility law
schools