IN THE SUPREME COURT OF THE STATE OF MONTANA

No. AF 11-0244

IN RE PETITION TO ADOPT AMENDED BOARD

OF BAR EXAMINERS' RULES

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OR DE R JAN 0 2013

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CLERK OF l'H! SUPA&ME COURT

'!;l'ATF OF MONTANA

Pursuant to Article VII, section 2 of the Montana Constitution, the Montana

Supreme Court holds the authority to establish rules for admission to the State Bar of

Montana. To fully implement the Uniform Bar Examination (UBE) as adopted by the

Court in its Order dated July 3, 2012, two sets of rules require modification -- the Rules

for Admission to the Bar of Montana and the Montana Board of Bar Examiners' Rules.

At the Court's request, the Montana Board of Bar Examiners has filed proposed

amendments to both ofthose sets ofrules.

The proposed amendments to the Board ofBar Examiners' Rules relate principally

to the creation and implementation of a Montana law educational component as part of

the Montana Bar Examination, elimination of four Montana essay questions, and the

increased passing score. They also include some clean-up of language in existing rules.

In addition, the Board has proposed new provisions regarding cheating, necessitated by

recent advances in electronic devices.

The Court having reviewed the changes to the Montana Board of Bar Examiners'

Rules as proposed by the Board,

IT IS HEREBY ORDERED that the rule changes proposed by the Board are

ADOPTED. The Montana Board of Bar Examiners' Rules are amended to read as shown

in the attachment to this Order.

The Clerk is directed to provide copies of this order and the attached Rules to the

Chair and each member ofthe Board ofBar Examiners; Marie Connolly, administrator of

the Montana Bar Examination; Thomson Reuters; Todd Everts at the Montana

January 30 2013
Legislative Services Division; and Dean Irma Russell at the University of Montana

School ofLaw.

DATED this 30 day ofJanuary, 2013.

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MONTANA BOARD OF BAR EXAMINERS' RULES

Rule 101 - Board of Bar Examiners.

A. Contact with Board of Bar Examiners. All correspondence or other

communications to the members of the Board of Bar Examiners must be directed

to the Bar Admissions Administrator at the State Bar of Montana, P.O. Box 577,

Helena, MT 59624, phone (406) 442-7660. Applicants are prohibited from

contacting Board members directly, unless given prior approval by the Bar

Admissions Administrator.

B. Public Request. Upon request, the State Bar of Montana staff may confirm that

an individual has filed an application for admission.

Rule 102 - Bar Examination Certification, Dates, & Content.

A. Certification. No applicant will be allowed to sit for the Montana Bar

Examination until and unless he or she has been duly certified or conditionally

certified by the Commission on Character and Fitness.

B. Dates of Examination. The UBE is administered over two days, with the MBE

given on the last Wednesday of February and July and the MEE and MPT given

on the prior Tuesday. Unless otherwise directed by the Board, the examination

will be held in Helena during the February administration and in Missoula during

the July administration. The examination facility will be determined by the Board.

C. Montana Law Seminar. All applicants are required to attend a Montana law

seminar prior to admission to the Montana Bar. The seminar will be held biannually on the Thursday following administration ofthe bar examination.

Rule 103 - Testing Accommodations.

A. Application Deadline for Testing Accommodations. An applicant who claims a

disability and who seeks an accommodation on the bar examination must submit a

request for the accommodation with supporting evidence by the deadline for

application for the relevant bar examination. Applications for accommodations

not submitted by the application deadline will not be considered, except where the

disability occurs after the application filing deadline.

B. Consideration of Requests. Requests for accommodation will be considered on a

case-by-case basis. To be entitled to an accommodation, the requesting applicant

must submit evidence sufficient to satisfy the Board of Bar Examiners or its

designee that:

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1. The applicant is otherwise qualified for the bar examination;

2. The applicant suffers from a physical or mental impairment;

3. The impairment substantially limits the applicant in a major life activity

that is of central importance to daily life. (To be substantially limited in a

major life activity means the impairment prevents or severely restricts the

applicant from doing activities that are of central importance to most

people's daily lives.);

4. The impairment is permanent or long-term;

5. The impairment in terms of the applicant's own experience is substantial.

(It is insufficient for an applicant attempting to prove disability status

merely to submit evidence of a medical diagnosis of impairment. The

applicant must provide persuasive evidence that the impairment has had a

substantial impact on the applicant.); and

6. The requested accommodation is tailored to address the impairment as it

relates to the bar examination and will effectively permit the applicant to

perform "on a level playing field" with other applicants (The

accommodation must not be designed to grant an advantage, but merely to

address a disability the law will recognize).

Requests for accommodations will be considered by the Board or its designee

based on the information submitted by the applicant and such other information as

may be reasonably available to the Board. Taking into account the resources

available to it, the Board may, but is not required to, seek the assistance of expert

counsel on the particular request for accommodation.

The Board may, in its discretion, require the applicant to provide additional

information relating to the disability and/or prior accommodations, and may also

require that the applicant submit to examination by a qualified professional

designated by the Board in connection with the applicant's request for testing

accommodations.

C. Appeal of Board Decision. Unless specifically stated otherwise, a decision by the

Board on whether or not to grant the accommodation requested or to offer an

alternative accommodation shall be final. An applicant may petition for relief

from a decision ofthe Board by petitioning the Montana Supreme Court, which is

the final authority on all matters relating to the bar examination and bar

admissions in Montana.

D. Subsequent Accommodation Requests. If an applicant defers or does not pass

the examination, previously granted testing accommodations may not

automatically extend to future examinations. The Bar Admissions Administrator

may request an applicant to update the original accommodation request.

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If an applicant seeks different accommodations than those previously granted, the

Bar Admissions Administrator may request the applicant to file a new request for

accommodations.

E. Definitions.

1. The term "disability" shall mean a disability under the Americans with

Disabilities Act of 1990 (ADA), which defines a person with a disability as

someone with a physical or mental impairment that substantially limits one

or more major life activities. In the bar examination setting, the impairment

must limit an applicant's ability to demonstrate, under standard testing

conditions, that the applicant possesses the knowledge, skills, and abilities

tested on the bar examination.

2. The term "qualified professional" shall mean a licensed physician,

psychiatrist, or other health care provider who has comprehensive training

in the field related to the applicant's disability.

3. An accommodation is an adjustment to or modification of the standard

testing conditions that addresses the functional limitations related to the

applicant's disability without:

a) Fundamentally altering the nature of the examination or the Board's

ability to determine through examination whether the applicant

possesses the necessary knowledge, skills, and abilities to pass the

bar examination; or

b) Imposing an undue burden on the Board; or

c) Compromising the security ofthe examination; or

d) Compromising the validity ofthe examination.

Rule 104 - Examination, Administration, & Grading.

A. Attendance at Examination. No applicant will be admitted to the examination

more than one-half hour after the examination begins. If an applicant is late, no

extra time will be awarded. The examination session will conclude as scheduled.

B. Examination Composition. The Uniform Bar Examination (UBE) is prepared

and coordinated by the National Conference ofBar Examiners and is composed of

the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT)

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tasks, and the Multistate Bar Examination (MBE). It is uniformly administered,

graded, and scored by user jurisdictions and results in a portable score. Applicants

must sit for all components in the same administration to earn a UBE score.

Scores from anyone component of the UBE may not be carried forward to any

subsequent examination.

C. MEE and MPT Grading Method. Each examination paper produced by an

applicant on the MEE and MPT will be separately graded. Answers will be

graded and credited by applicant number and not by applicant name.

D. Score Combining. MEE and MPT answers will be graded on a scale of zero to

six, with six being the highest qualifying score and zero being the lowest possible

score. All scores will be converted to the 400 UBE point scale and combined with

the MBE scaled scores. MEE and MPT scores are scaled to the MBE, with the

MBE weighted 50%, the MEE 30%, and the MPT 20%. MBE answer sheets are

scanned and centrally scored by the National Conference ofBar Examiners.

Applicants with a combined scaled score of 270 or higher will be deemed to have

passed the Montana Bar Examination.

E. Disruption During Examination. Should a serious disruption occur during any

portion of the bar examination, the Bar Admissions Administrator and/or proctors

will record the incident on the proctor report forms and the Board will be so

advised. If examination time is lost by the general examination population due to

the disruption, a corresponding amount of time will be added to the end of the

same examination session, ifreasonably feasible.

F. Individual Emergencies During Examination. If during the course of the

examination an applicant has a sudden and unexpected emergency not of the

applicant's making and the Bar Admissions Administrator has approved the

applicant's departure, the departure will be treated as a deferral and the fees will

transfer to the next examination. The Bar Admissions Administrator will record

the incident on the proctor report form and the Board will be so advised.

Rule 105 - Rules of Conduct.

A. Examination Rules of Conduct. All applicants shall abide by all rules and

instructions governing the administration of all portions of the bar examination.

Applicants MAY NOT:

1. Falsify the application or proofs required for admission to the bar

examination.

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2. Utilize any unauthorized notes, books, recordings, electronically retrievable

data or other unauthorized materials while taking the examination. The only

items permitted in the exam room are those which have been approved by

the Board, namely: (1) computers specifically configured for use of

computer-based testing, such as Exam Soft; or (2) blue books issued by the

test proctors and approved writing tools. Any items which may provide the

applicant with information or access to information other than the

applicant's own knowledge shall be prohibited. Without limitation, such

items include notes, cell phones, backpacks, purses, or timing devices other

than a non-digital wristwatch. The Board reserves the right to prohibit any

item not specifically referenced at any time, including at the examination.

Possession of a prohibited device in the examination may be treated as a

cheating incident, and proctors are authorized to confiscate any

unauthorized item or device.

3. Use answers or information from other applicants while taking the

examination.

4. Provide answers or information to other applicants taking the examination.

5. Read questions on the examination prior to the announcement to begin the

examination.

6. Continue to answer any question after the announcement to stop when the

session has ended.

7. Remove any multiple-choice, machine-scored examination question from

the examination room or otherwise communicate the substance of any of

those questions to other applicants or to persons who are employed by or

associated with bar review courses.

8. Remove any essay questions, scrap paper, or other materials from the

examination room or otherwise communicate the substance of any of those

questions to other applicants.

9. Otherwise compromise the security or the integrity of the bar examination

in any fashion.

10. Disregard any instruction given by the Bar Admissions Administrator

during the course of the examination or cause generalized disruption of the

examination.

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B. It is the policy of the Montana Board of Bar Examiners that the bar examination

and related conduct of bar applicants be beyond reproach. Applicants are at all

times to maintain a professional attitude toward other applicants, proctors, and

other examination personnel. Conduct that constitutes a violation of these Rules,

the Rules for Admission, or any rules or instructions provided by examination

personnel may result in immediate disqualification and ejection from the

examination. Violation ofthe rules, cheating, or taking any action that disrupts or

compromises the security or integrity of the bar examination may result in

immediate disqualification and ejection from the examination.

Rule 106 - Impoundment, Investigation, & Appeal.

A. Impoundment of Examination Results. If the Board of Bar Examiners or the

Bar Admissions Administrator has cause to believe an applicant has violated any

of the rules of conduct set forth above, the applicant's bar examination answers

and results may be impounded pending an investigation by the Board.

B. Investigation by the Board ofBar Examiners Subcommittee.

I. Any concerns the Bar Admissions Administrator has regarding violation of

the Rules of Conduct will be referred to a subcommittee of two (2)

members of the Board for further investigation. In every such

investigation, the Bar Admissions Administrator or the subcommittee may

obtain such information that relates to the applicant's conduct, administer

oaths and affirmations, and compel by subpoena the attendance of

witnesses and the production of books, papers, and documents. The

subcommittee may require sworn taped interviews with an applicant to

clarify information or to facilitate the investigation.

2. If it appears to the subcommittee that there is credible evidence that would

establish that an applicant violated any of the rules of conduct, the Bar

Admissions Administrator shall serve written notice on such applicant by

certified mail stating with particularity the facts upon which the alleged

violations are based.

3. The applicant must file a verified answer with the Bar Admissions

Administrator within 30 days of service of the notice. The answer shall

identify with specificity the alleged violations disputed by the applicant and

set forth any evidence which can be adduced by the applicant in

contradiction of such charges. The applicant may include a request for a

hearing before the Board of Bar Examiners. The applicant must supply an

original and seven (7) copies of all such materials to the Board's office.

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4. In the event the applicant does not submit a written answer as provided in

subsection (B)(3) above, the Board shall deem the facts set forth in the

written charges to be established. The charges shall become part of a

permanent file before the Commission on Character and Fitness. The

applicant may not reapply for admission for at least three years from the

date ofthe Board's charges.

5. Should an applicant file an Answer, but fail to request a hearing, the Board

Chairman shall appoint a committee made up ofBoard Members other than

the two members assigned to investigate the claimed violation ofthe Rules

of Conduct. The committee shall consist of no fewer than 3 members and

no more than 5 members. [The Chairman may appoint a member ofthe bar

to sit as a member of the committee in the absence of a Board Member.]

The committee shall review the evidence gathered by the Bar Admissions

Administrator, the 2-member subcommittee, together with any submission

received from the Applicant. The committee shall render a final decision

by a majority vote ofits members.

C. Hearing.

1. In the event the applicant requests a hearing, the hearing panel shall consist

of a majority of the members of the Board of Bar Examiners who did not

serve on the subcommittee. A majority ofthe hearing panel shall make the

final decision.

2. The Board shall notify the applicant in writing of the date, time, and place

of such hearing and ofthe applicant's right to be represented by counsel at

the hearing, to examine and cross-examine witnesses, and to present

evidence.

3. Ifthe applicant files a written request for hearing, the applicant shall supply

a list of witnesses, including addresses and phone numbers, and all

supporting documentation including evidence, affidavits, exhibits, etc., he

or she feels is necessary to support his or her certification at least ten (10)

days prior to the hearing. The applicant shall supply an original and seven

(7) copies of all such materials to the Board's office.

4. The hearings before the Board shall be open to the public unless the

applicant requests that they be private and the panel chair rules that the

applicant's individual privacy requires that the meeting be closed. In

making this determination, the panel chair must find that the demands of

individual privacy clearly exceed the merits of public disclosure.

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5. The hearing panel shall determine by a preponderence of the evidence

whether the applicant violated the examination rules of conduct.

6. Rules of Evidence need not be observed. The Board may, in its discretion,

take evidence in other than testimonial form, having the right to rely upon

records and other materials furnished to the Board in response to its request

for assistance in its inquiries. The Board may, in its further discretion,

determine whether evidence to be taken in testimonial form will be taken in

person at the hearing or upon deposition, but in either event all testimonial

evidence shall be taken under oath. A complete record of the hearing must

be kept.

D. Findings and Decision.

1. The Board of Bar Examiners shall issue a written decision which shall be

reported to the Commission on Character and Fitness.

2. In the decision the Board of Bar Examiners may take one or more of the

following actions:

a) Nullify the results ofthe examination taken.

b) Transmit a written report of the matter to bar admission authorities

in any jurisdiction.

c) Take such other action as the Board deems appropriate.

E. Supreme Court Review.

1. The final decision of the Board shall be conclusive unless a verified

Petition for Review is filed by the applicant with the Montana Supreme

Court within thirty (30) days following service upon the applicant of the

decision in the manner provided by these rules. If an applicant seeks

review, the applicant must have the hearing record before the Board

transcribed at the applicant's expense and provided to the Court. A copy of

the Petition for Review and the hearing transcript must also be filed with

the Board.

2. Within thirty (30) days of receipt of said Petition, the Board shall transmit

the entire record to the Clerk of the Supreme Court and a response to the

Petition fully advising the Court as to the Board's reasons for its decision,

and admitting or contesting any assertions made by the applicant in said

Petition.

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