By Joan C. Rogers
An Idaho lawyer who has not practiced much in recent years due to anxiety and
depression and who therefore cannot meet the “active practice requirement” for
admission on motion will not be admitted to practice law in Utah without taking
the bar examination despite his substantial legal experience, the Utah Supreme
Court decided Dec. 21 (Spencer v. Utah State
Bar, Utah, No. 20110745, 12/21/12).
In declining to make an exception for the lawyer, the court reasoned that the
active practice requirement is the only means of ensuring that the lawyers who
are admitted on motion have legal experience that is not only substantial but
also current. Because there is a reasonable basis for the rule, it does not
violate the federal or state equal protection clauses, the court decided in an
opinion by Chief Justice Matthew B. Durrant.
The court also ruled that even if the lawyer had established that he was
disabled under the federal law that prohibits discrimination based on
disability, he would not be entitled to a waiver of the active practice
requirement as an accommodation.
Timothy W. Spencer was admitted to the Idaho bar in 1983, but beginning in
1995, he voluntarily ceased his law practice at times because he was suffering
from anxiety and depression. The Social Security Administration determined that
Spencer was disabled by his illness as of 2003.
Spencer changed his status with the Idaho bar to “inactive” in 2004 and moved
to Utah, where he worked as a law clerk, helped with pro bono cases, and took
numerous continuing legal education courses.
In 2009, after Spencer's doctor cleared him to resume the practice of law, he
changed his Idaho bar status back to “active.” He remained in Utah but allegedly
resumed his Idaho law practice, and in 2010 he applied for admission to the Utah
bar by motion under Rule 14-705 of the Supreme Court Rules of Professional
At the time Spencer applied for admission on motion, the Utah rule required
that a lawyer licensed in Idaho could be admitted to practice in Utah if he had
actively practiced law in Idaho for three of the five years preceding his
application to the Utah bar. (The current Utah rule requires active practice for
five out of the seven years preceding a lawyer's application.)
The bar denied Spencer's application because he had not actively practiced
law in Idaho for the required period preceding his application. After the
admissions committee denied his request for an exception or waiver of the active
practice requirement, he appealed.
In seeking a waiver of the active practice requirement, Spencer argued that
he had achieved the skills and competence necessary to practice law in Utah
through his previous extensive experience in Idaho.
The supreme court acknowledged that Spencer had accumulated over 17 years of
active practice since his admission to the Idaho bar. But at the time he sought
admission on motion in Utah, his legal experience was not current, the court
“[T]he rule permits a lawyer to be admitted on motion only if the lawyer's
legal experience is both current and substantial,” the court said. The
focus on the period immediately preceding the application ensures that the
applicant remains currently competent, it explained, citing In re Conner,
917 A.2d 442, 23 Law. Man. Prof. Conduct 34 (Vt. 2006).
Because applicants who are admitted on motion are not required to pass a bar
examination, “the active practice requirement is the only means by which the Bar
assesses an applicant's current competency to practice law in Utah,” Durrant
The court conceded that in some instances the active practice requirement may
keep out skilled, competent lawyers. “But the requirement provides a predicable,
objective standard by which the Bar may review applications for admission,” and
to depart from that standard would lead to inconsistent results and promote the
appearance of unfairness, the court said.
Spencer challenged the constitutionality of the active practice requirement,
arguing that it discriminates against individuals who are disabled.
En route to upholding the rule, the court found that it does not create any
classification regarding disability, because any lawyer who meets the rule's
requirements may be admitted on motion, regardless of whether the lawyer is
Rather, the court explained, the rule distinguishes only between lawyers who
satisfy the active practice requirement and those who do not. A reasonable basis
exists for this distinction because the active practice requirement ensures that
applicants for admission on motion have current and substantial legal
experience, it found.
Accordingly, the court concluded that the rule does not violate the federal
or state equal protection clauses. “Moreover, the fact that the rule may be
overinclusive does not render it unconstitutional,” it added.
As another argument for waiving the active practice requirement, Spencer
contended that he is a qualified individual with a disability under the
Americans with Disabilities Act. His disability--anxiety and
depression--prevented him from satisfying the active practice requirement, and
tolling the computation of his practice time during the period of his disability
is a required accommodation under the ADA, he asserted.
The court found it unclear whether Spencer's impairment substantially limits
his ability to work. It was unnecessary to resolve that question, the court
said, because even if he had established that he is protected by the ADA, he
would not be entitled to a waiver of the active practice requirement as an
Although the ADA requires the Utah bar to administer the bar examination in a
way that does not discriminate against qualified individuals with disabilities,
“the ADA does not require the Utah Bar to waive the active practice requirement
for disabled lawyers who seek to be admitted on motion,” the court decided.
Waiving the active practice requirement would fundamentally alter the bar
admissions program and is not required under the ADA, the court said.
Michael A. Reason, Reason Law Offices, South Ogden, Utah, represented Timothy
Spencer. Katherine A. Fox, Utah State Bar, Salt Lake City, represented the
Full text at http://op.bna.com/mopc.nsf/r?Open=jros-93ehlq.
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