2.02. Requirements: Legal Education

Until relatively recently structured legal education was not required to practice law.  The apprenticeship (if any formal learning was required at all) was the primary method of training a lawyer.  As of 1900, 80 to 90 percent of lawyers never attended college or law school.  By 1941, as the American Bar Association (ABA) became more formalized and asserted the need for uniform standards for the increasing number of law schools across the nation, the requirement that an applicant graduate from a law school before sitting for the bar exam existed in almost all states.[1]  And the ABA was the organization that states began to look to determine whether a law school satisfied the requirements to be an accredited (and therefore acceptable) law school.     

Until recently, it was uncontroversial that this educational requirement could only be satisfied by attending a law school accredited by the American Bar Association.[2]  Why did the ABA obtain this power?  Historically, it arose out of a belief that legal education should be standardized for all students.  Hence, the ABA adopted standards regarding the number of faculty required, the number of books that the library must have, and the physical space a facility must have for students.  Legislators thought these minimum standards were necessary and a good thing as the legal profession moved from apprenticeships to requiring formal legal education.

Recently, questions have been raised about the requirement that applicants attend an ABA accredited institution.  Why should a library have a certain number of books when almost all legal research is now done on a computer?  What is the purpose of having a certain minimum square footage in a “brick and mortar” building when classes can be taken on-line?  The ABA only accredits law schools in the United States.  When someone obtains a law degree from a foreign law school that prepares students in the same legal approach as U.S. law schools why should those students be denied the opportunity to take the bar?  We are seeing courts struggle with justifying these requirements.

Ross Mitchell graduated with “highest honors” from Concord Law School in 2004.  He was successful in both academic and extracurricular activities.  Mitchell applied to take the Massachusetts bar exam, but was denied the right to do so because Concord is a completely on-line law school and not accredited by the ABA, which is required by court rule in Massachusetts. Mitchell appealed the rejection of his application to the Supreme Judicial Court of Massachusetts.  Should the court allow Mitchell to sit for the bar exam? Mitchell v. Bd. Of Bar Examiners, 897 N.E.2d 7 (Mass. 2008)

The court held that Mitchell did have the right to sit for the Massachusetts bar exam.  The court first pointed out that the ABA is currently evaluating its accreditation requirements – indicating that the organization is considering the changing environment in legal education and likely to change what is required to be accredited.  The court then noted that because it has the inherent authority to regulate who is admitted to practice, it has the authority to waive the graduation requirement.  The court recognized that the ABA accreditation requirement “is not an end in itself, but rather a practical way to ensure generally that prospective attorneys have received an adequate level of appropriate legal education.”  ABA accreditation is not the only way to determine if an applicant has sufficient education.  A court itself can evaluate whether an applicant has sufficient education to satisfy the minimum proficiency requirement.  Here, after looking at Mitchell’s education at Concord and his success there, the court allowed him to sit for the Massachusetts bar exam.  A dissenting Justice raised concerns that the majority had opened Pandora’s Box by allowing law students from non-accredited law schools to apply for the Massachusetts bar exam and requiring courts to evaluate each application.  For the dissent, the bright line rule requiring ABA accreditation would eliminate this case-by-case consideration.

James Kelly graduated from Toronto Law School in Canada, which is considered the top-ranked law school in Canada.  After gradation Kelly was admitted to practice in Massachusetts (which has a rule allowing graduates of certain foreign law schools to sit for the bar exam).  He has practiced in Massachusetts from 2001 through 2013 in the area of federal securities regulation and private investment fund formation. Kelly then moved to Utah and applied to sit for Utah bar exam, but was denied because he had not taken a sufficient number of courses at an ABA accredited law school (as required by a rule in Utah).  Kelly appealed the denial.  Should the court allow Kelly to sit for the bar exam? Kelly v. Utah State Bar, 391 P.3d 210 (Utah 2017)

The Utah Supreme Court held that Kelly should be able to sit for the bar exam in that state.  The court first noted the purpose of the education requirement is to ensure that lawyers are sufficiently educated to represent the state’s citizens.  The court then went on to adopt a two-pronged test to determine if future applicants should receive a waiver.  First, whether the education received was the “functional equivalent” of what is provided in ABA-accredited law schools, and second, the extent the applicant has been exposed to U.S. law.  Interestingly, the court easily found the second prong met, but did not have enough evidence to determine whether the Canadian law school education was the functional equivalent of an ABA accredited law school.  The court instructed future applicants to provide sufficient information about the school attended to allow the court to make a decision.  If the advantage of ABA accreditation is providing courts a bright-line rule to determine who has received an adequate education, this case-by-case approach really could open the flood gates and require courts to evaluate the education and background of every applicant from both non-accredited and foreign law schools.

[1] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (U.N.C. Press 1983).

[2] There are unaccredited law schools that exist, but often graduates of these law schools have more stringent requirements to obtain a license and may be limited in their ability to practice (for example – only being able to practice in the state where the school is located).