I am a Montana Attorney or an interested citizen. I am signing this Petition and Comment to express my opposition to the Montana Board of Bar Examiner’s (the Board) Petition (the Petition) to adopt the Uniform Bar Examination (UBE), as well as their proposed Implementation Plan.  I believe the Montana Supreme Court should consider the Petition and Plan based on sound principles of judicial restraint and in the context of a burden of proof. 

The Petition and Plan seek to fundamentally alter the practice of law in Montana.  The Court should approach the Petition and Plan with caution and the same judicial restraint it would approach the reversal of a long-standing rule of law.  The current bar examination format has created a well-regarded professional bar in Montana, and has always rigorously tested an applicant’s knowledge of Montana law.  The Petition and Plan seek to do away with this rigorous testing.  

Although there may be great respect for the work of the Board, the Court should not be persuaded to grant the Petition merely because the Board believes in it.  The will of a few members of the State Bar of Montana should not be imposed on all members of the Bar, Montana Courts, or Montana Citizens.

In addition to applying sound principles of judicial restraint, the Court should require the Board to sustain a high burden of proof in proposing the Petition and Implementation Plan.  The Board seeks to alter the status quo, and accordingly should bear the burden of demonstrating that there are problems inherent in the status quo, and that its proposed Petition and Plan will remedy those problems without unintended consequences.  There are likely numerous unintended consequences of the Petition and Implementation Plan that have not been considered by the Board.  The Board has failed to produce any evidence of problems with the current Montana bar examination, and has failed to produce any evidence that its Petition and Implementation Plan will improve any aspect of the current licensing procedure.  Put simply, the Board has wholly failed to meet any reasonably applicable standard of a burden of proof showing that the current system is ineffective, does not achieve its desired goals, or is broken.

Contrary to its title, the UBE is neither uniform, nor is it a national test.  It is a very young test in the format proposed.  The Court should appreciate that the law, including the practice of law, is not national.  The competing interests in Montana are dramatically different from, Alabama, Missouri, Washington, Idaho, Arizona, Colorado, Nebraska, and North Dakota.  Only those states have adopted the UBE (Nebraska and Washington have yet to implement the test), and they have adopted it in the context of differing bar admission procedures. The Board has offered no evidence suggesting a good reason, or even a reasonable basis, for Montana to leap into the unknown for the sake of alleged uniformity, especially when the consequences of such movement are currently unknown (and were apparently not even considered in depth).  Adopting the UBE would actually place Montana in the very small minority of states.  There is no reason to rush the adoption of the UBE.    

The use of an on-line, multiple choice, open book format for testing an applicant's knowledge of Montana law lacks rigor and invites collusion and other improper tactics.  Allowing an applicant the opportunity to simply re-take the test immediately after failing, and as many times as desired, renders the test an illusory demonstration of an applicant's qualifications.  The Board failed to provide any evidence that requiring applicants to take a superficial memory quiz repeatedly until they can remember 30 of 35 answers will lead to a competent bar prepared to provide legal services to Montana's public.

Montana has been described as a "small town with long streets."  Montana has zealously guarded the competence of our local attorneys, and our citizens have access to quality legal services at rates that are extremely low by comparison with rates in other states.  The Montana Bar is uncommonly collegial in the vast majority of cases, and this collegiality results in efficiencies for clients. Our pro hac vice rules require that attorneys licensed in other jurisdictions remain accountable for their conduct in Montana courts. The Board has offered no evidence to suggest that making it significantly less difficult for non-Montana residents to practice before our Courts will positively impact the provision of legal services to Montana's citizens.

I therefore respectfully request that the Montana Supreme Court refuse to adopt the Petition as proposed by the Board. Any further comments I have on this issue will be posted with my signature.

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