Rules Governing the Utah State Bar – Comment Period Closed May 22, 2020

This is unfairly prejudicial, and does not take into consideration those who did not go to top 50 law schools, but would still have passed the bar exam. It also unfairly favors those who did go to top 50 law schools, but would not have passed. I don’t see how this proposal is a good solution to the current pandemic issues that law students/bar takers face at this time.

I would like to thank the Supreme Court for the proposed ruling in this matter, and show full support for the proposed decision with the exception of the 86% first-time bar passage rate requirement for law school. There is discrepancy between difficulty of bar exams across the nation and bar passage rates between states. Because of this discrepancy, requiring all law schools to perform at Utah’s bar passage rate of 86% would exclude students who go to schools that perform well above average on taking the bar for the first time, and it would include students who go to schools who are below average at taking the bar for the first time. This makes the 86% measure arbitrary. 

Instead of using the flat 86% pass rate for all law schools across the nation, I recommend the Utah Supreme Court use the difference between the school’s passage rate of first-time test takers and the ABA weighted average of first-time bar test takers. This number would take into account the difficulty of passing the bar exam in each state, and provide a more accurate measure of a law school’s performance for first-time bar passage rates.

On the 2019 report for law schools, the ABA includes a column (column J) which uses a simple equation (H – I = J) to report the difference between school performance of first-time test-takers (column H) and the ABA weighted average of first-time test takers (column I).The ABA weighted average varies from school to school depending on which states their students take the bar exam in, and the passage rate for various state bar exams. This may seem complicated but if you look at the law school reports it is very clear.  

If the Utah Supreme Court would like to issue a ruling to ensure that law schools perform above average, they should require the difference between the law schools first-time passage rate and the ABA weighted average of first-time test takers to be a positive number. As long as a school has a positive difference between the school average and the weighted average, then that school’s students who are take the bar for the first-time are passing the bar at an above average rate.

Utah’s first time bar passage rate of 86% is much higher than the national average of 80%. In fact, in 2018 Utah was in the top ten states who have the highest bar passage rates. For 2018, the list in order of highest to lowest includes: Oklahoma, Missouri, Iowa, New Mexico, Montana, Utah, Oregon, Kansas, Minnesota, and Nebraska.  In 2019, Utah surpassed all of those states expect for Kansas for highest pass rates. 

Placing the cut off for law schools at 86%, which is the Utah rate, means that schools whose students mostly take the exam in Utah would only have to perform average to be accepted. Meanwhile, schools whose students take exams in states with significantly lower first time bar passage rates like California (69.11%), Colorado (76.89%), and Arizona (74.01%) would have to significantly outperform the average bar passage rate to make the cut. Likewise, law schools with students who take the bar exam in states which have a higher bar passage rate than Utah, like Kansas (87%), could perform below average on first time bar passage rates and still make the cut.

In summary, a more complete and accurate measure of a law school’s performance on first-time bar passage rates would be to use the difference in the school’s performance of first-time test-takers and the ABA weighted average of first-time test takers (Column J on the 2019 ABA law school report).  A positive number means the school’s first-time bar passage is above average and a negative number means the school’s first-time bar passage is below average.

Students may easily find this report of their school and submit it as proof that their school performs above average at first-time bar passage. 2019 bar passage reports can be found at: http://www.abarequireddisclosures.org/BarPassageOutcomes.aspx

As much as I commend the Utah Supreme Court and the powers that be in working to find a solution for this uncertain time, I do not support this temporary order as written. Many arguments have been presented, and likely do not need to be rehashed. It seems as though both those that support and oppose this temporary measure concede that there is no perfect solution. Additionally, the bar exam, while it may or may not be antiquated; and may or may not be the best way to measure minimum competence, is at least what the state of Utah has used for quite some time and apparently intends to keep using after the COVID19 pandemic subsides.

As it stands then, the Class of 2020 stands to be in a unique position of having the option to being admitted to the Utah State Bar on a “diploma plus” system. As a basis for this, the Utah Supreme Court cites hardship, risk, and uncertainty for 2020 graduates, along with the obvious need for these graduates to be able to secure gainful employment, hopefully in the practice of law. These are not new concerns, as the classes from around 2008-2012 will tell you – many of us graduated with uncertainty, took jobs for the sake of having employment, and have come through one way or another – either in the legal profession or not.

With that, I am concerned that this diploma plus system sets the class of 2020 to be taken advantage of as lawyers even more than they may stand to be already. It doesn’t appear deniable that we are heading into a recession, with recent law school graduates being employed for significantly less and working the same or more hours, as a result of fear of being expendable. This is not unique at all to the practice of law. However, this circumventing of the bar exam for one class is a unique situation, and I believe there is actual concern for the class of 2020 to risk being glorified law clerks and overworked, underpaid, and relegated to certain jobs should a firm or government agency decide not to take the risk in hiring them. I’m also concerned for what it may do to reciprocity, as going from a UBE state to diploma plus seems a somewhat drastic measure that goes from expansive reciprocity to minimal, if any. Many of us have made ourselves more marketable by become licensed in more than one jurisdiction, with the encouragement of our firms. This stands to make that harder, if not impossible, for a class that is likely disadvantaged as is.
Finally, it is hard to support this without knowing how many eligible members of the bar are able to support the graduates while they are working their supervised hours. It is also hard to know what areas of the law this might be more feasible for, and those that may present more of a challenge. While I recognize that graduates have the option to forego this and take the next offered bar exam, by all accounts we are dealing with a population that is understandably anxious and likely financially compromised at this time. Decisions about a 40+ year career may not be an option if presented with a more immediate fix.

For these reasons, I believe that the best choice would be to be to make every reasonable effort to hold the Bar Exam as scheduled, using distancing measures, a larger schedule, or online proctoring if available. I understand that the graduates are in this position through no fault of their own, but cannot support this as written without further justification.

Re: Gila River Indian Community’s comments on the proposed amendment to Rule 14-0806, Admission pro hac vice (USB14-0806)

To the Honorable Members of the Supreme Court of Utah and Utah Judicial Council,

The Gila River Indian Community (the “Community”) is pleased to submit its comments supporting the proposed amendment to the Utah’s Proposed amendments to the Admission pro hac vice, Rule 14-0806, subsection (r) of which adds an exception to certain pro hac vice requirements for child custody cases subject to the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. The Community fully supports adoption of this rule for the reasons below.

I. ABOUT THE GILA RIVER INDIAN COMMUNITY AND THE INDIAN CHILD WELFARE ACT

The Community is a federally-recognized Indian tribe composed of the Akimel O’otham (Pima) and Pee-Posh (Maricopa) peoples. The total enrollment of the Community is approximately 22,862 members. The Community occupies the Gila River Indian Reservation (the “Reservation”), located in southern Arizona, and encompasses over 372,000 acres of land in Pinal and Maricopa counties. The Community is both an urban and rural Community, and shares a border with the Arizona cities of Phoenix, Coolidge, Casa Grande, Gilbert, Maricopa and Queen Creek.

The Community’s close proximity to several state courts in Arizona and neighboring states allows our tribal attorneys and Tribal Social Services case managers to be actively involved in child dependency cases when Indian children are enrolled or eligible for enrollment with our Community. The Community intervenes in every ICWA case in which our children and families are involved, whether in Arizona or other states. As a Community, we take great pride in becoming involved in state dependency cases as early as possible so that we may assist with identifying ICWA-compliant placements, establishing communication and relationships with all parties involved, and work with state agencies to support the best interests of our children.

The Community considers that one of the primary purposes of 25 U.S.C. § 1911(c), which permits Indian tribes to intervene in state child custody proceedings involving their children, is that it gives Indian tribes a voice in state court proceedings where, historically, tribes have been left behind. The Community has appeared and intervened in ICWA cases involving its children in Utah, as well as Arizona, Alabama, California, Colorado, Idaho, Illinois, Iowa, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, Oregon, Texas, Washington and Wisconsin. Unfortunately, Indian children from many out-of-state Indian tribes are involved in child custody proceedings. Generally, state courts welcome tribal attorneys in ICWA cases because of the specialized knowledge they bring to the proceedings.

The proposed amendment to Rule 14-0806 facilitates the federal statutory right of Indian tribes to intervene in cases to which ICWA applies. As noted, infra, in-house attorneys for Indian tribes who are not state-licensed may appear in state court proceedings in any state because the federal right of an Indian tribe to intervene in cases to which ICWA applies preempts state regulation of attorney licensing.

The Community has not experienced any issues with its attorneys appearing in any state court in an ICWA case, with one notable exception. Recently, a complaint was made to attorney disciplinary authorities in the State of Ohio by a client of the Goldwater Institute, alleging that a Community attorney who appeared as an ICWA representative in a case in Ohio was engaged in the unauthorized practice of law. Sadly, in that same case, pro hac vice admission rules were used as a sword by another party against the Community’s attorneys to attempt to gain an advantage in the litigation. An effective way to curb these frivolous complaints and abusive litigation practices is through doing what the amendment to Rule 14-0806 does—recognizing that non-licensed attorneys may appear in state court without going through regular, and often cumbersome, pro hac vice processes.

II. ICWA PREEMPTS STATE ATTORNEY LICENSING RULES

The Community supports the proposed amendment because of the Community’s belief that a statewide rule will best facilitate the federal statutory right of Indian tribes to appear in state child custody proceedings involving their children. Appellate courts in other states which have addressed the issue uniformly hold that an Indian tribe participating in a child custody proceeding under ICWA is not required to appear through a state-licensed attorney.

In Shuey, the Court of Appeals of Oregon held that the state interest in representation by an attorney is preempted by the context of ICWA proceedings. The Confederated Tribes of the Grande Ronde appealed the denial of a motion to intervene in state court ICWA proceeding. The trial court denied the motion because it was not signed by an attorney. Relying on Supreme Court precedent, the Court of Appeals reasoned that “[w]hen a state law ‘interferes with or is incompatible with federal and tribal interests,’ the Supreme Court requires balancing state and tribal interests.” Applying this standard, the Court of Appeals held that the state law requiring attorney representation was preempted by ICWA because “[t]ribal participation in state custody proceedings involving tribal children is essential to effecting the purposes of the ICWA.”

Although the individual who signed the motion in Shuey was not licensed as an attorney in any state, the rationale of Shuey clearly applies to an in-house tribal attorney. Noting that the Grand Ronde usually appeared through its Director of Social Services, the court approved because “[t]hat necessarily requires familiarity with the procedural and substantive requirements of the ICWA, and with the procedures and organizations of other social service agencies.” In-house tribal attorneys are intimately familiar with the procedural requirements of ICWA and most have handled ICWA matters in many states. No state interest is infringed by permitting in-house tribal counsel to appear and participate “in the narrow context of these ICWA proceedings.”

The sound reasoning of Shuey has been followed by two state supreme courts—in Nebraska and Iowa—and an intermediate appellate court in Florida. The Supreme Court of Nebraska held that the requirement that an Indian tribe be represented by a Nebraska-licensed attorney pursuant to the state law governing unauthorized practice of law was preempted by ICWA. Using the same balancing test as Shuey, the court in Elias L. held that ICWA specifically authorized representation in Nebraska ICWA cases by persons who were not Nebraska licensed attorneys, noting that “an employee of an organization can engage in certain acts that would normally constitute the practice of law if done for the sole benefit of the organization.” Again noting the narrow context of ICWA proceedings, the court held that the State’s interests are not necessarily compromised by allowing the tribe to be represented by a non-lawyer.

Finally, in J.P.H., the District Court of Appeal in Florida held, in consolidated cases under ICWA, that the trial court erred when it denied the tribe’s petition to intervene because the tribe was not represented by a Florida attorney. Citing Elias L., N.N.E. and Shuey, the court held that the tribe had a clear right to intervene and “is not required to be represented by a member of the state bar, since prohibitions on the unauthorized practice of law interfere with and are thus preempted in the narrow context of state court proceedings subject to the Indian Child Welfare Act.”

Every reported appellate case on this issue holds that the right of an Indian tribe to intervene in an ICWA case outweighs the state interest in regulation of attorney admissions. And these cases were correctly decided. Any pro hac vice rule adopted in Utah should reflect that its purpose is to facilitate the Indian tribe’s statutory right to intervene and participate and should impose minimal burdens and requirements on tribal attorneys.

III. COMMENTS ON THE PROPOSED AMENDMENT TO RULE 14-0806

The proposed amendment to Rule 14-0806 recognizes an exception to the regular pro hac vice requirements for cases to which ICWA applies, so long as the non-Utah licensed attorney is admitted and in good standing in another United States jurisdiction appears for the limited purpose of participating in a child custody proceeding, pursuant to ICWA, while representing a tribe, without being subject to the requirements of this rule.

The Community fully supports adoption of the proposed amendment, which seeks to follow the purpose and spirit of ICWA, to ensure consistency and ICWA compliance across all Utah courts in child custody proceedings. In enacting ICWA, Congress specifically found that “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Therefore, the participation of Indian tribes is imperative to ensure the proper application of cultural and traditional standards to the case and to the benefit of the children and families involved.

ICWA’s purpose is to protect the best interests of Indian children and to promote stability and security for tribal communities and families by establishing minimum federal standards for the removal of Indian children from their families and the placement of such children in homes or institutions which will reflect the unique values of the Indian tribe. The proposed rule also makes sense in light of the law.

Providing a pro hac vice exception for tribal attorneys in ICWA cases will lessen the financial and practical burdens on Indian tribes in appearing and participating in ICWA cases. Any pro hac vice rule permitting tribal attorneys to participate in ICWA cases must consider that many Indian tribes have limited resources. High pro hac vice fees and requirements to associate or appear with local counsel are significant burdens on an Indian tribe’s right to intervene and participate in ICWA cases. The time it takes to comply with such requirements works to the detriment of Indian children and families, as most state court dependency or abuse/neglect proceedings are subject to strict case deadlines. And, as noted, some parties may use this situation to attempt to exclude Indian tribes from participating in cases involving their children. To protect the best interests of Indian children, Indian tribes—through their attorneys or other ICWA representatives—must be able to intervene quickly as a matter of right.

Finally, early tribal participation increases the likelihood of compliance with ICWA. In the Community’s experience, there are several reasons why early tribal participation in ICWA cases increases compliance with ICWA and produces better outcomes: (1) tribal attorneys and representatives are often more knowledgeable about ICWA than state agencies, particularly regarding determination of Community-specific standards or ICWA preferences; (2) Indian tribes have better access to locate tribal family placement options or other tribal-specific ICWA compliant placement options; and (3) Indian tribes can offer immediate knowledge or access to culturally appropriate services. The proposed rule is necessary because reducing costs and procedural steps for out-of-state tribes appearing in Utah courts is beneficial for all agencies and parties involved and, most importantly, for the children involved in these difficult cases.

On behalf of the Gila River Indian Community, I thank you for the opportunity to comment on this proposed amendment to Utah’s Rule 14-0806, Admission pro hac vice. We very much support the adoption of this proposed amendment and appreciate your consideration of our comments. As a Community and partner in ICWA cases, we support the adoption of rules that support and further ICWA’s purpose of protecting the rights of Indian children, families and tribes.

Respectfully,

Stephen Roe Lewis, Governor
Gila River Indian Community

May 22, 2020

RE: USB Rule 14-806 Admission pro hac vice.

Congress passed the Indian Child Welfare Act of 1978 (ICWA) “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families[.]” 25 U.S.C. § 1902. ICWA established minimum federal standards for the treatment of Indian children in state child custody proceedings, including the right of an Indian tribe to intervene and participate in any state child custody proceeding involving an Indian child from that tribe.

Given the unique rights afforded Tribes under ICWA, pro hac vice admission will always “serve the interests of the parties and the efficient and just administration of the case,” and therefore, should always be granted. Under a federal preemption analysis, the rights and interests of the tribe to participate in ICWA proceedings far outweigh the rights and interests of a state with regard to the practice of law. Congress intentionally sought to protect the interests of tribes through ICWA’s substantive provisions when it found “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children[.]” 25 U.S.C. § 1901(3).

While the proposed amendments are a step in the right direction toward fulfilling the intent and purpose behind ICWA, they do not go far enough. A pro hac vice rule should clearly:

1) Waive the limit on the number of appearances;
2) Waive the requirement to associate with local counsel;
3) Waive any fees to appear; and
4) Be available to counsel for Indian parent(s), Indian custodian(s), and Indian child(ren).

While the proposed amendments seem to address the first three factors above, the current wording is vague and discretionary.

Many tribes do not have the capacity to retain local counsel or pay prohibitive fees to appear in Utah ICWA proceedings. Although some tribes may receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931(a)(8); 25 CFR §§ 89.40-41. Other federal funds for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 et seq. While tribes are allowed by federal law and regulation to use a tribal representative who is not an attorney, such a representative faces potential liabilities in ICWA cases. Because tribes intervene in cases wherever the tribal children are, tribal attorneys must often appear in states where they are not licensed. This opens tribal attorneys up to unauthorized practice of law issues both in the state where they are intervening and in their home state. While appearing pro hac vice is often offered as a solution, it has significant practical limitations, as a result of required fees, association with local counsel, and the right of the state to deny the application. Finding local attorneys for these cases can consume hours of research and vetting. Moreover, finding local attorneys with familiarity with ICWA can be nearly impossible.

Consequently, on behalf of the ICWA subcommittee of the Utah State Bar Indian Section, we offer the following comments. First, subsection (r) of Rule 14-806 should specifically exempt an attorney seeking pro hac vice admission for participation in an ICWA case (an “ICWA Applicant”) from the fees outlined in Rule 14-806(g)(8).

Second, the new subsection (r) should explicitly exempt an ICWA Applicant from the eligibility requirement of subsection (e)(5). This may require an acknowledgment in subsection (r) that an ICWA Applicant may be permitted to file his or her own special motion for pro hac vice admission without the participation of local counsel.

Third, subsection (r) should explicitly exempt an ICWA Applicant from any limits within the rule with regard to the number of appearances an ICWA Applicant can make once granted pro hac vice status.

Fourth, the subsection should be changed to allow its exemptions for ICWA Applicants to apply not only those attorneys “in good standing in another United States jurisdiction” but also to anyone licensed or permitted to practice in any tribal court.

Finally, the permissive language in subsection (r) should be replaced with mandatory language that requires the court to grant an ICWA Applicant exemption from the requirements of Rule 14-806 unless the court finds an overwhelmingly persuasive reason not to.

An amendment to the pro hac vice rule that allows tribes to participate in Utah ICWA proceedings while avoiding prohibitive costs and other hurdles will improve the welfare of Indian children by ensuring that tribes can meaningfully participate in Utah child custody proceedings related to their children.

Sincerely,

Heather Tanana
Assistant Professor of Law (Research)
University of Utah – S.J. Quinney College of Law

Alisa Lee
Indian Child Welfare Administrator
Utah Division of Child and Family Services

Judge William A. Thorne, Jr. (ret.)

Clifford B. Parkinson
Attorney
Lear & Lear, PLLC

Beth Parker
Attorney
Lear & Lear, PLLC

Angilee Dakic
Attorney
Pearson Butler