IN THE SUPREME COURT OF THE STATE OF MONTANA No. AF 11-0244

IN RE PETITION TO ADOPTAMENDED BOARD OF BAREXAMINERS' RULES ) ) ) 

# PILEfJ

ORDE R 

### JAN 0 2013 

## ;Ed'Smitli CLERKOFl'H! SUPA&ME COURT '!;l'ATFOF 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 ofrules require modification

-- the Rules for Admission to the Bar ofMontana and the Montana Board ofBar Examiners' Rules. At the Court's request, the Montana Board of Bar Examiners has filed proposed amendments to both ofthose sets ofrules. Theproposed amendments to the Board ofBarExaminers' Rules relateprincipally to the creation and implementation ofa 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 oflanguage 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 ofBarExaminers' Rules as proposedby the Board, IT IS HEREBY ORDERED that the rule changes proposed by the Board are ADOPTED. The MontanaBoard ofBarExaminers' Rules are amendedto read as shown inthe attachmentto this Order. The Clerk is directed to provide copies ofthis order and the attached Rules to the Chairand each memberofthe BoardofBarExaminers; Marie Connolly, administratorof the Montana Bar Examination; Thomson Reuters; Todd Everts at the Montana January 30 2013Legislative Services Division; and Dean Irma Russell at the University of Montana School ofLaw. DATED this 

# 30 day ofJanuary, 2013.

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### MONTANABOARD OFBAREXAMINERS' RULES Rule 101

- Board ofBarExaminers. A. Contact with Board of Bar Examiners. All correspondence or other communications to the members ofthe Board ofBar Examiners must be directed to the Bar Admissions Administrator at the State Bar ofMontana, 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 ofMontana staffmay confirm that an individual has filed an application for admission. 

### Rule 102

- BarExamination 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 certifiedby the Commission on CharacterandFitness. 

### B. Dates ofExamination. The UBE is administered over two days, with the MBE given on the last Wednesday ofFebruary 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 determinedby theBoard. 

### 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 onthe Thursday following administration ofthe barexamination. 

### Rule 103

- TestingAccommodations. A. Application Deadline for Testing Accommodations. An applicantwho 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 notbe considered, exceptwhere the disability occurs afterthe application filing deadline. 

### B. Consideration ofRequests. 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 designeethat:

31. The applicantis otherwise qualified forthe bar examination; 2. The applicant suffers from aphysical ormental impairment; 3. The impairment substantially limits the applicant in a major life activity that is ofcentral 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 impairmentis permanentorlong-term; 5. The impairment in terms ofthe 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 impactonthe 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 adisability the law will recognize). Requests for accommodations will be considered by the Board or its designee based on the information submittedby the applicant and such otherinformation 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 ofexpert counsel onthe particularrequestfor 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 ofBoard Decision. Unless specifically statedotherwise, adecisionby 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 inMontana. D. Subsequent Accommodation Requests. Ifan 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 applicantto updatethe original accommodationrequest.

4Ifan applicant seeks different accommodations than those previously granted, the BarAdmissions 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 aperson with a disability as someone with aphysical or mental impairmentthat substantially limits one ormore majorlife activities. Inthe barexamination 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 onthe barexamination. 2. The term "qualified professional" shall mean a licensed physician, psychiatrist, or other health care provider who has comprehensive training inthe field relatedto 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 ofthe examination or the Board's ability to determine through examination whether the applicant possesses the necessary knowledge, skills, and abilities to pass the barexamination; or b) Imposing an undue burden onthe Board; or c) Compromisingthe security ofthe examination; or d) Compromisingthe validity ofthe examination. Rule 104- Examination, Administration, & Grading. A. Attendance at Examination. No applicant will be admitted to the examination more than one-halfhour after the examination begins. Ifan applicant is late, no extratime 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 ofBarExaminers and is composed of the MultistateEssay Examination (MEE), two Multistate Performance Test (MPT)

5tasks, and the Multistate Bar Examination (MBE). 

### It is uniformly administered, graded, and scoredby userjurisdictions andresults in aportable score. Applicants must sit for all components in the same administration to earn a UBE score. Scores from anyone component ofthe UBE may not be carried forward to any subsequentexamination. 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 creditedby applicantnumberandnotby applicantname. D. Score Combining. MEE and MPT answers will be graded on a scale ofzero to six, with six being the highest qualifying score and zero being the lowestpossible score. All scores will be convertedto the 400 UBEpoint 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 scoredbythe National Conference ofBarExaminers. Applicants with a combined scaled score of270 or higher will be deemed to have passedthe MontanaBarExamination. E. Disruption During Examination. Should a serious disruption occur during any portion ofthe bar examination, the BarAdmissions Administrator and/orproctors will record the incident on the proctor report forms and the Board will be so advised. Ifexamination time is lost by the general examination population due to the disruption, a corresponding amount oftime will be added to the end ofthe 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 incidenton theproctorreport form andthe Boardwill be so advised. Rule 105 - Rules ofConduct. A. Examination Rules of Conduct. All applicants shall abide by all rules and instructions governing the administration ofall portions ofthe bar examination. Applicants MAYNOT: 1. Falsify the application or proofs required for admission to the bar examination.

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### 2. Utilize any unauthorizednotes, books, recordings, electronically retrievable data orotherunauthorizedmaterials 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 testproctors and approvedwriting tools. Any items which may providethe 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, ortiming devices other than anon-digital wristwatch. The Boardreserves the rightto prohibit any item not specifically referenced at any time, including at the examination. Possession ofa prohibited device in the examination may be treated as a cheating incident, and proctors are authorized to confiscate any unauthorizeditem ordevice. 3. Use answers or information from other applicants while taking the examination. 4. Provide answers orinformationto otherapplicants 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 sessionhas ended. 7. Remove any multiple-choice, machine-scored examination question from the examination room or otherwise communicate the substance ofany of those questions to other applicants or to persons who are employed by or associatedwithbarreview courses. 8. Remove any essay questions, scrap paper, or other materials from the examination room or otherwise communicate the substance ofany ofthose questions to otherapplicants. 9. Otherwise compromise the security or the integrity ofthe bar examination in any fashion. 10. Disregard any instruction given by the Bar Admissions Administrator during the course ofthe examination or cause generalized disruption ofthe examination.

7B. 

### It is the policy ofthe Montana Board ofBar Examiners that the bar examination and related conduct ofbar 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 ofthese 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, ortaking any action that disrupts or compromises the security or integrity of the bar examination may result in immediate disqualification and ejectionfrom the examination. Rule 106

- Impoundment, Investigation, & Appeal. A. Impoundment ofExamination Results. Ifthe Board ofBar Examiners or the Bar Admissions Administrator has cause to believe an applicant has violated any ofthe rules ofconduct set forth above, the applicant's bar examination answers andresults may be impoundedpending an investigationbytheBoard. B. Investigation bythe Board ofBarExaminers Subcommittee. I. Any concerns the BarAdmissions 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 orto facilitate the investigation. 2. Ifit appears to the subcommittee that there is credible evidence that would establish that an applicant violated any ofthe 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 ofthe notice. The answer shall identify with specificity the alleged violations disputedby the applicant and set forth any evidence which can be adduced by the applicant in contradiction ofsuch charges. The applicant may include a request for a hearing before the Board ofBarExaminers. The applicant must supply an original and seven (7) copies ofall 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 ahearing, the Board Chairman shall appoint acommittee made up ofBoardMembers otherthan the two members assigned to investigate the claimed violation ofthe Rules ofConduct. The committee shall consist ofno fewer than 3 members and no more than 5 members. [The Chairman may appoint amemberofthe bar to sit as a member ofthe committee in the absence ofa 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 amajorityvote ofits members. C. Hearing. 

### 1. In the eventthe applicantrequests ahearing, the hearing panel shall consist ofa majority ofthe members ofthe Board ofBar Examiners who did not serve onthe subcommittee. A majority ofthe hearing panel shall make the final decision. 2. The Board shall notify the applicant in writing ofthe date, time, and place ofsuch 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 awritten request forhearing, 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 priorto the hearing. The applicant shall supply an original and seven (7) copies ofall suchmaterials 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 individualprivacy clearly exceedthe merits ofpublic disclosure.

95. The hearing panel shall determine by a preponderence of the evidence whetherthe applicantviolatedthe examinationrules ofconduct. 6. Rules ofEvidence 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 othermaterials 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 ofthe hearing must bekept. D. Findings and Decision. 1. The Board ofBar Examiners shall issue a written decision which shall be reportedto the Commission on Characterand Fitness. 2. In the decision the Board ofBar Examiners may take one or more ofthe following actions: a) Nullifythe results ofthe examinationtaken. b) Transmit a written report ofthe matter to bar admission authorities in anyjurisdiction. c) Take such otheraction as the Board deems appropriate. E. Supreme CourtReview. 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 ofthe decision in the manner provided by these rules. If an applicant seeks review, the applicant must have the hearing record before the Board transcribed atthe applicant's expense andprovidedto 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 ofreceipt ofsaid Petition, the Board shall transmit the entire record to the Clerk ofthe 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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