Summary of Proposed Amendments
The overall goals of the State Board of Law Examiners in proposing the amendments were cleaning up inconsistent language, conform the rules to the long term practice of the Board, and bring more transparency of the process to the applicants.
The proposed amendments, if adopted, would not be unique to North Dakota. Rules in Minnesota, Florida, Ohio, Colorado, West Virginia and Kentucky were frequently consulted and their language used.
Rule 1 - The deleted language in lines 6-50 is slightly modified and moved to Rule 2, lines 102-149. The new language at lines 59-70 reiterates the responsibilities of an applicant under Rule 8.1, Rules of Professional Conduct, and puts an applicant on notice of the consequences of not timely complying with Board requests.
Lines 71-80 include new language that affect both applicants and attorneys. There has been an assumption, by some members of the Court and others, that an admitted attorney is required to keep his/her address updated with the Board. Under the current rule, an applicant is required to designate the Clerk of the Supreme Court as the applicant's agent for service of process for all purposes. In light of this, a requirement to update addresses and names should be included.
Rule 2 - The Board considers the Essential Eligibility Requirements at lines 83-101 those attributes that all applicants must possess to be admitted to practice law.
An explanation of fitness is included at line 108-111. The term "fitness" is currently used in the rule in conjunction with good moral character. The requested language clearly indicates that fitness is about an assessment of mental and emotional health.
Lines 150-158 allow the Board to require an applicant to undergo an independent medical evaluation. The Board believes it is already within their investigative authority to require a medical evaluation. However, because of past questions and concerns, the Board would like a rule to put applicants clearly on notice of the Board's authority. Note the Board is willing to pay the costs for any required independent medical evaluation, which is one of the concerns frequently raised.
Lines 159-192 clarify the role of the Character and Fitness Committee as a resource and working committee for the Board. The Board recommends the State Bar Association of North Dakota, (SBAND), no longer be required to provide a list of potential committee members from which the Board appoints a member. While SBAND has willingly accepted the Board's suggestions on the background credentials for potential members, this has delayed the appointment process. It is unnecessary for members of a working committee to be nominated by SBAND. The members of the Board, who make the final committee appointment and fully understand the needs of the Board and the standards for admission, are nominated by SBAND.
Lines 193-198 include new language should an applicant be denied based on lack of character and/or fitness wish to reapply.
Rule 4 - Line 368 clarifies where an application for a foreign legal consultant is to be filed. Lines 382-383 and 467-471 establishes the amount of application and license fees for foreign legal consultants the same as motion applicants, and distributes the fees in the same manner.
Lines 418, 438 and 441 clarify that it is the North Dakota Rules of Professional Conduct a foreign legal consultant must observe.
Rule 5 - Lines 486-487 are clean-up.
Rule 6 - Lines 504-506 and 509-512 codify the present procedures and exam components.
Lines 507-508 places the Multistate Professional Responsibility Exam, (MPRE), requirement for bar exam applicants in the rule, rather than having it in the pass/fail policy, and increases the MPRE required score. The current passing score of 80 is one of the lowest in the nation. If the Court wants to emphasize the importance of ethics for new lawyers, our required score should be increased to no less than 85.
Lines 513-519 provide a procedure for someone who has already taken the Multistate Bar Exam, (MBE), in another jurisdiction within two years of applying to North Dakota, and has been admitted to that jurisdiction, to carry his/her MBE score to North Dakota and sit for the essay. Many states allow the portability of an MBE score. Based on conversations with the testing experts at the National Conference of Bar Examiners, (NCBE), the Board is comfortable that the reliability and validity of the exam will not be affected if the Court allows this.
Lines 525-528 clarify when and how a person with a disability requests testing accommodations. The Board's current forms and internal policy on the handling of such requests are included as Appendix A and B for the Court's reference.
Rule 7 - The additions at line 572 are clean-up.
Lines 584-585 can also be considered clean-up. All other forms of applications for admission and licensure are filed with the Board. There is no reason to handle motion applicants in a different office.
Line 613 is clean-up.
Line 614 proposes decreasing the MBE score necessary to motion in without necessity of sitting for another bar exam. When 150 was first set, there were two states, Minnesota and Colorado, and the District of Columbia, that permitted this. Our score was set between Minnesota and Colorado. Colorado no longer allows this method of admission, so the Board is suggesting a score of 145, which is the same as Minnesota. The District of Columbia is 133. In the Board's experience, a 145 is still considered an above average score on the MBE.
Line 617 increases the passing MPRE score to 85, which is consistent with the amendment in Rule 6.
Lines 630-633 deletes a procedure that has not been used for well over 20 years. If the Board approves an applicant for admission, that serves as a "motion".
Rule 9 - The deletion at line 719 takes away the public aspect of a conditional admission. The Board's limited experience in this area leads us to believe it hampers rehabilitation, as well as employment opportunities for some applicants, because of the unfamiliarity with what conditional admission means.
Rule 10 - The deletions at lines739-744, and the consistent additions, conform the rule to reality. The Board only use products created by the NCBE, and no longer write local essays.
The proposed language at lines 750-753 includes language normally found in the pass/fail policy adopted before each exam, and incorporates an internal policy of the Board.
The proposed language at lines 765-766 reiterates the standard of proof before the Board and is consistent with the stated standard of proof before the Supreme Court at line 783.
Rule 13 - The deletion at line 831 is to conform the available information to reality. The records in the Clerk's office are incomplete and would not allow such an inquiry. The Clerk's office, however, could confirm or deny whether someone with an application pending (an applicant) is currently licensed under the Senior Practice Rule.
The deletion at line 835 is consistent with the proposal at line 719.
If there are questions concerning any of the proposed amendments, Penny Miller, who serves as Secretary-Treasurer of the Board, can provide additional insight.