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In re Birt, 2020 VT 55
In Vermont there are a couple different ways one can get to be a lawyer. Most commonly, people graduate college, then go to law school, then do the bar exam and character and fitness screening. Some folks, though, forego the law-school route, and become eligible to take the bar by doing a four-year-law-office-study program. It’s sort of like doing an apprenticeship. Both methods can end up with someone becoming a lawyer. Both methods have their pros and cons.
The petitioner here, Mr. Birt, did the four-year-law-office study in 2000. He sat for the bar exam four times between 2002-2004; unfortunately he didn’t pass. In July of 2019, the petitioner applied to take the February 2020 bar exam. Licensing Counsel reviewed the application and was concerned about the length of time that had elapsed since he finished his office study and also his prior unsuccessful attempts.
Ultimately, the Board of Bar Examiners decided not to let the petitioner sit for the exam. There’s a rule about this (because we’re lawyers and we love rules): an applicant who does law office study has to sit for the bar within five years of finishing the office study program, unless that time period is extended for good cause. Also, applicants are limited to four attempts to take the bar exam.
Petitioner appeals this decision. The Vermont Supreme Court controls attorney admissions. Although the Board of Bar Examiners has a lot of discretion in making decisions about who is permitted to sit for the bar, the buck really stops with the Court.
Petitioner first argues that it was impossible for him to sit for the uniform bar exam (UBE) within five years of his completing the law office study because back when he did his office study, the UBE wasn’t a thing. The current version of the rule refers specifically to the UBE because the UBE is the only bar exam offered in Vermont. SCOV says the point of the rule is to make sure the exam is taken within a reasonable period of time of finishing the educational prerequisites (whether that prerequisite is the office-study program or law school).
Further, SCOV points out that the petitioner stopped trying to pass the bar in 2004, and it wasn’t until 2019 that he applied again. He’s subject to the rules in existence at the time he applies, not the rules back when he could have applied.
The Board of Bar Examiners is also allowed to extend the five-year time frame for good cause. This seems like a case-by-case basis situation, and there are probably times when it makes sense. SCOV notes here that in the interceding fifteen years the petitioner had several different occupations, including as a paralegal instructor and as a court reporter. However, those jobs weren’t really enough to give SCOV the confidence that he was still actively involved in legal work and study.
So, for all those reasons, SCOV upholds the Board of Bar Examiners’ denial.