Bars. Get it?

In re Oden, 2018 VT 118

By Elizabeth Kruska

This is a fairly niche opinion that applies to very few people.

Mr. Oden (Applicant) applied to take the Vermont Bar exam in 2018. The Vermont Board of Bar Examiners denied his application because he had previously taken, and failed, the Maryland Bar Exam six times before finally passing it in 2014. The way I read this, Applicant passed a bar exam in a state other than Vermont and then sought to take the Vermont bar so he could practice here. The problem appears to be that he failed the bar exam several times before finally passing.

The Vermont Board of Bar Examiners is the governing body that oversees administration of the bar exam. There are rules in place about who is permitted to take the exam. One rule that currently exists says the bar examiners may deny someone’s application to take the exam if they have failed the bar four times. Basing their decision on this rule, The bar examiners said Applicant could not sit for the exam. Applicant appeals, and SCOV affirms. 

For starters, the Vermont Supreme Court has regulatory authority over the practice of law in Vermont. SCOV makes the rules for admission to the bar. The public is best served if attorneys practicing law have demonstrated a level of competence. One way to measure this is through the bar exam. If you pass, that’s one piece of showing professional competence. There’s concern about letting someone take the exam too many times. It happens a lot that people don’t pass on their first attempt. But if someone fails too many times it starts to look like a competence problem.

Someone who wants to take the bar exam, but has failed four times, can apply to the Board of Bar Examiners for a waiver. If the applicant shows they’ve substantially improved their preparation, and if there’s good cause to permit a waiver, the Board is allowed to do that.

Applicant here didn’t apply for a waiver. Instead, he relied on the language of the rule. It says someone cannot take the Uniform Bar Exam if they’ve failed the bar exam four times. Applicant read this to mean he would have had to have failed the Uniform Bar Exam four times, which he didn’t. The Board responded by saying Applicant read it too narrowly, and that it means failure of any bar exam, not the Uniform Bar Exam specifically.

SCOV reviews this and finds the Board’s action was appropriate. First, it applied the rules of statutory construction to the rule and started with the plain language of the rule. The plain language said “bar exam” and didn’t specify that this applied to the Uniform Exam only.

Second, SCOV says the four-exam limit is perfectly within the Board’s authority. Not every state has a limit, but that doesn’t mean that Vermont’s choice in having a limit is irrational. SCOV does say, though, that if an applicant has more than four exam failures, that person can apply for a waiver. If someone has shown improvement in preparation and can show good cause to support the waiver, the Board is allowed to grant that.