January 22, 2014
IN THE MATTER OF THE PETITION OF KATHERINE GEORGER FOR WAIVER OF THE BAR EXAMINATION REQUIREMENT
Katherine Georger has petitioned for admission to the State Bar of Montana without necessity of taking the Bar Examination, requesting waiver of Rule III.C. of the Rules for Admission. Georger is a graduate of the Gonzaga University School of Law. In July 2009, Georger sat for the Idaho Bar Exam, passing the Multistate Essay Examination (MEE), Multistate Performance Test (MPT) and Multistate Bar Examination (MBE). Idaho is a Uniform Bar Examination (UBE) jurisdiction, and the referenced examinations are the current components of the UBE. Georger was admitted to practice in the courts of Idaho in October, 2009. She remains an active member in good standing with no history of disciplinary action in Idaho since her admission. Georger has relocated to Montana and is currently employed by Garlington, Lohn & Robinson, PLLP. The focus of her practice is healthcare law. She is registered to take the Montana Bar Exam and Montana Law Seminar in February 2014.
Historically, this Court has seldom received requests for and rarely waived the Bar Examination requirement for admission to the State Bar of Montana, and then only under extraordinary circumstances, consistent with our view that bar examination serves as an important protection of Montana citizens who seek legal representation from lawyers licensed to practice in Montana. Our recent adoption of the UBE may well prompt an increase in the number of such waiver requests, providing, as it does here in Ms. Georger's petition, a basis for arguing that the purposes of bar examination passage have been fulfilled, and only completion of the Montana Law Seminar remains necessary. Indeed, in the past two weeks alone, we have received three separate petitions to waive the Bar Examination requirement. If this pace continues, the exception could swallow the rule.
The longstanding bar admission rule under which waiver requests are considered by this Court broadly states as follows:
The Montana Supreme Court is the final authority as to who and under what circumstances an applicant may be admitted to practice law in Montana. The Court may, under circumstances it deems sufficient, waive any requirement under these rules.
Rule VIIA, Rules for Admission to the Bar of Montana. The Rule's stated basis by which this Court assesses a waiver request is simply "under circumstances it deems sufficient, " a completely arbitrary measure that provides no standards or criteria to guide either this Court or those who are seeking a waiver. Although this Court has plenary constitutional authority over the issue, the arbitrariness inherent under such a rule makes it difficult for the Court to consider the diverse qualifications of individual applicants and duly exercise its discretion in a manner that is fair and impartial. The three applicants for waiver we consider today, with their significant yet diverse qualifications, underscore this point. It is our intention, therefore, to undertake consideration of possible rule revisions, including, as suggested further in the Concurrence, our current non-reciprocity rule.
After consideration of the petition, and in light of the foregoing observations, we have determined to deny the request. We observe further that, to grant this request would effectively extend our recently-adopted rule for transferring UBE scores from another jurisdiction from 3 years to 5 years.
IT IS HEREBY ORDERED that the petition for waiver of Rule III.C requiring passage of the Bar Examination for admission to the State Bar of Montana is DENIED.
The Clerk shall mail a copy of this order to Petitioner and to the Administrator of the Board of Bar Examiners at the State Bar of Montana.
Justice Laurie McKinnon concurs.
The Petition for Admission to the State Bar presented by Katherine Georger demonstrates that she is well-credentialed and would be an asset to this State's legal community. Ms. Georger has been a practicing attorney in Idaho since 2009 and is in good standing. She is employed by Garlington, Lohn & Robinson, PLLP, and has an interest in healthcare law. However, because Ms. Georger took the UBE more than three years prior to her application for admission, she does not meet the requirements of admission by transfer pursuant to Rule I.D of the Rules for Admission. She thus has requested waiver pursuant to Rule III.C.
Rule III.C requires that all applicants by examination are required to sit for the UBE, "unless waived by the Montana Supreme Court." Other than "under circumstances it deems sufficient" contained in Rule VILA, there are no standards or criteria set forth in the Rules for Admission which would guide this Court in its decision as to whether a waiver should be granted. The Court may, for example, look more favorably on an applicant who has a history of pro bono service or who would practice in an area of law or region currently short in supply of attorneys. In my opinion, the arbitrariness inherent in such a consideration undermines this Court's role and obligation to be fair and impartial in its decisions. I am uncomfortable drawing arbitrary distinctions between qualified applicants on the basis of our subjective belief as to the value that an applicant might bring to a particular area of jurisprudence. Our non-reciprocity rule denies the admission to the Bar of otherwise qualified attorneys from other states. I believe that the current rule, allowing for this Court's discretionary selection of certain candidates for admission, is inconsistent with our adoption of non-reciprocity and our obligation as a tribunal to be fair and impartial. Thus, I believe it reflects poorly upon this Court.
Reciprocity is, in essence, a waiver provision that has standards and criteria. In my view, we should either revisit reciprocity or refrain from admitting applicants who do not meet the transfer provisions of Rule I.D. While our adoption of the non-reciprocity rule was controversial and highly debated, I would encourage its reconsideration. Whatever the disadvantages to reciprocity may be, they likely do not outweigh subversion of this Court's impartiality and fairness when we selectively admit applicants without standards or criteria.
My decision today is meant in no way to reflect negatively on Ms. Georger's credentials. I am simply unwilling to draw an arbitrary line, as a jurist, distinguishing her application from that of another well-qualified application. Standards and criteria exist, in part, to assist a judge, justice, or court in making decisions that are fair and impartial. I thus would invite reconsideration of the non-reciprocity rule, especially in light of our adoption of the UBE.
Justice Justice Beth Baker joins the Concurrence of Justice Laurie McKinnon.