Depression Doesn't Avoid Requirement of Recent Practice for Admission on Motion

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.

Periods Away From Practice.

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 Practice.

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.

Gauge of Competence.

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 pointed out.

“[T]he rule permits a lawyer to be admitted on motion only if the lawyer's legal experience is both current and substantial.”
Utah Supreme 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 wrote.

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.

Rational Basis.

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 disabled.

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.

No ADA Accommodation.

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 accommodation.

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 bar.

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