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Aspiring lawyers lined up to take the Minnesota bar exam July 26, 2016, at Roy Wilkins Auditorium in downtown St. Paul. The state Supreme Court is being urged to make it easier for experienced out-of-state lawyers to get a Minnesota law license without first passing the exam. (File photo: Bill Klotz)
Aspiring lawyers lined up to take the Minnesota bar exam July 26, 2016, at Roy Wilkins Auditorium in downtown St. Paul. The state Supreme Court is being urged to make it easier for experienced out-of-state lawyers to get a Minnesota law license without first passing the exam. (File photo: Bill Klotz)

Spare the bar exam, spoil the lawyer?

The Minnesota Supreme Court should think about making it easier for experienced out-of-state lawyers to get a Minnesota law license without first passing the state’s bar exam.

That’s the opinion of five affinity bar groups, as well as both the Hennepin and Ramsey County bar associations, who want permission from the high court to weigh in as amici on behalf of an Illinois-licensed lawyer who didn’t get the exam waiver because of a determination that too much of her past work experience was part-time.

In the view of the bar associations, the Minnesota Board of Law Examiners’ standard for granting waivers relies on an “arbitrary” measure of competence — hours worked — and fails to recognize a shift in the profession toward part-time work.

Further, they claim that the restriction hurts “lawyers who are members of groups that have been historically underrepresented in the Minnesota bar” — a cohort that includes young mothers like the petitioner in the case at hand, Kathleen Jane Reilly, as well as an unknown number of disabled lawyers for whom full-time work is impossible or problematic.

“Obviously, we want lawyers to be able to demonstrate that they’ve had some substantive law experience if they want to get licensed here without taking the bar exam,” said Connie Armstrong, the president of Minnesota Woman Lawyers, one of the groups that is championing Reilly’s cause.

But, Armstrong said, lawyers like Reilly should not lose their shot at a waiver simply because they worked part-time while raising their children.

In a request for leave to file an amicus brief, the MWL and six other bar associations contend that a more flexible approach wouldn’t just be a benefit to the out-of-state lawyers who want to hang up a shingle here. By accommodating more lawyers who can’t or choose not to work full-time, they argue, the board could help make the Minnesota bar more diverse.

In rejecting Reilly’s request for a waiver, the Board of Law Examiners relied on Rule 7A of Minnesota’s Rules for Admission to the Bar, which allows out-of-state lawyers with “significant practice experience” to skip the bar exam. In Reilly’s case, the stumbling block was the requirement under the rule that applicants must have been engaged in the practice of law as a “principal occupation” for at least 60 of the prior 84 months.

Rule 7A does not state what it takes to meet the “principal occupation” standard. However, the Board of Law Examiners interprets the phrase to mean that the applicant must have performed legal work for a minimum of 120 hours per month.

In a written decision and memorandum, Douglas Peterson, the board’s president, described Reilly as “a talented young lawyer” and opined that her two judicial clerkships in the Northern District of Illinois provided her with “rich legal experiences over an array of important cases.”

Still, Peterson concluded, Reilly is required by rule to take the Minnesota bar because she did not have enough full-time, or substantially full-time, work experience.

In a memorandum to the board, Reilly noted that she often logged 60- to 70-hour weeks during the 2½ years she spent as a litigator at a Chicago law firm, following her graduation from law school in 2005. Because that was outside the seven-year period that is reviewed under Rule 7A, that experience didn’t count in her application for the waiver.

After leaving the firm, Reilly took a full-time judicial clerkship in the Northern District of Illinois, which did fall within the relevant time period and which the board credited.

But with a fast-growing family, Reilly later switched to part-time clerkship under a federal job-sharing program designed to accommodate employees with family demands and, for a 44-month period, she spent two days a week clerking for Magistrate Judge Arlander Keys, with two breaks for maternity leaves.

In 2014, after Reilly’s husband took a job in Grand Rapids, the family moved to Grand Rapids and, for the next two years, Reilly was a stay-at-home mom. Looking to resume her legal career, she applied for the admission to the Minnesota bar last summer. Following an initial rejection, she asked for reconsideration and, after getting a hearing, was once again rebuffed by the board.

Reached by telephone, Reilly said she didn’t want to comment publically before the Supreme Court decides whether to grant her petition for review.

However, in her pre-hearing brief to the Board of Law Examiners, Reilly questioned the board’s “arbitrary” requirement that she show she worked at least 120 hours per month.

The language of Rule 7A doesn’t contain an hourly threshold and, she noted, the Supreme Court in 2010 rejected a proposal from the board that would have incorporated a 130-hour standard into the rule. That decision came amid concerns from a Minnesota State Bar Association committee that the restriction would be unfair to “many attorneys who work less than full-time without any impact on their competency.”

Reilly also argued that the 120-hour standard doesn’t make sense because not all law jobs are the same.

As a judicial clerk, Reilly “never had to spend her working hours on business organization” or manage an office or employees. As a result, she ventured, her part-time clerkship “resulted in more legal work product than a solo practice attorney, scheduled to work full-time but only billing 2-3 hours per day, could possibly claim.”

In a telephone interview, Kate MacKinnon, the St. Paul lawyer who drafted Reilly’s petition to the Supreme Court, said the Board of Law Examiners’ reliance on the 120-hour standard is inconsistent with how law is now practiced.

“I’m not practicing law if I don’t meet some arbitrary number of hours a month? That’s a pretty scary thing for the board to say,” said MacKinnon. “What it means is that there are a whole lot of lawyers in Minnesota who are not ‘actively practicing law.’”

So what standard should the board use to determine if an out-of-state lawyer should be allowed to skip the bar exam?

“I think we need to do more thinking about that,” MacKinnon answered.

In researching the issue, MacKinnon said she found that many states use “a seven-year look-back” in determining eligibility for a waiver. But she said she has not turned up any case law on how those states evaluate the question of eligibility with lawyers like Reilly whose past work experience was largely part-time.

In a response to Reilly’s petition, Karen McGillic, the lawyer for the Board of Law Examiners, urged the Supreme Court to leave matters untouched.

If Reilly prevails, McGillic wrote, the board would be forced to abandon its minimum eligibility threshold and engage in an “onerous” case-by-case analysis of the approximately 100 Rule 7A applications it receives from out-of-state lawyers on an annual basis.

“Contrary to the inferences in the petition, this case is not about whether part-time attorneys or working mothers are valuable members of the legal profession, nor is it about whether part-time attorneys are entitled to admission to the Minnesota bar,” McGillic wrote. “The real issue is whether substantially full-time legal employment in 60 of the 84 months immediately preceding one’s application should be required in order to show that the applicant has the ‘significant practice experience’ required for admission without examination.”

One comment

  1. The problem is mostly not the law schools: it is the bar exam. It has little to no reliability and validity. The reliability mostly predicts “seat time” in cramming for the test, and favors full-time students who are right out of college and have no job. The validity is nil when there are many attorneys pulled from somewhere to grade the essays. The rote memory part of the multiple-guess part of the test is irrelevant to practicing law. These facts were taught in law school classes and can be readily searched for. Basically the bar exam does not test for success as an attorney; it is purely a “gatekeeping” function to eliminate competition in the legal world. Recently a small group of nontraditional students (7) who did not have unlimited amounts of time to study for this test failed at a 60% rate. Everyone in this group was employed full time so had somewhat limited time to study. The group included a physicist, a mechanical engineer, an army officer. All were successful in other fields. Two were magnum cum laude law school graduates. Only one was a traditional white male, all the rest were minorities: women, Asian, Jewish. The test is discriminatory and has bias. It should be eliminated, all law students should be licensed, and the free market and competition should sort out who succeeds. This is how it is for most other professions—even teaching. Why does law persist in being a closed shop medieval guild when law students take an LSAT and have 3 to 4 years of classes and testing? Is that not ENOUGH? Plus, once you have all that debt, what is a student supposed to do when he/she can’t get a law license? The national failure rate for the February 2017 bar exam was 58% nationwide. Disgraceful! That is directly the result of the bar exam which has little to no reliability or validity.

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