Legal ethics

New case offers rare glimpse into the black box of the Board of Law Examiners.

I fairly regularly represent people in proceedings in front of the Board of Law Examiners, and as a result, I have a bit of a running list of “grievances” with aspects of how that body conducts itself. At times where I have matters pending before it, it becomes difficult to spend too much capital speaking out publicly about the problems.

Some of those problems cannot be solved by simply fixing the rules under which the Board of Law Examiners operates, but some of those problems certainly can be easily remedied.

Here’s an example of a simple problem that can be remedied by a rule revision and that complaining about cannot hurt any of my clients. The Board of Law Examiners refuses to accept a declaration under penalty of perjury as sufficient in instances where Supreme Court Rule 7 calls for an “affidavit” and even in places where the rule doesn’t use the word “affidavit,” but merely requires that something be done under “oath.” At any point after the Tennessee Supreme Court adopted Tenn. R. Civ. P. 72 – which indicates that such a declaration can be used in lieu of affidavits – imposing a cost and access obstacle for applicants by making them find a Notary Public was silly. After we have all lived through 2+ years of pandemic conditions, continuing to do so is absurd.

The Board’s only justification for its position is that the TN Rules of Civil Procedure do not expressly apply to Board proceedings. In so doing, it also often describes declarations under penalty of perjury as not being “sworn” statements. The manner of fixing that is straightforward. Unlike Rule 9 governing disciplinary proceedings, I do not think it makes sense for anyone to have Rule 7 say that all of the Rule of Civil Procedure are applicable. The Court though should revise Rule 7 in all the necessary spots to make clear that declarations under penalty of perjury that would satisfy Tenn. R. Civ. P. 72 are acceptable in lieu of affidavits.

Other grievances about aspects of the Board’s approach to matters will need to wait for another day to be aired.

There is presently pending before the Tennessee Supreme Court a case that I have nothing to do with and that demonstrates beyond question another aspect of the rules under which the Board of Law Examiners operates that needs to be revised. It involves the way that the Board of Law Examiners deals with applicants for admission who have received their undergraduate education in other countries. (It is also an interesting case to have exist simply because it provides some rare information about how the Board goes about certain things that otherwise always remain confidential.)

Here is a thought exercise for you to imagine before we talk about this any further though.

Assume a person who is an applicant for admission to the Tennessee bar has the following credentials: (1) they are duly licensed to practice law in New York; (2) they passed the Uniform Bar Examination with a score significantly higher than the passing score in Tennessee; and (3) they obtained an L.L.M. from Pace University in New York.

Can you imagine any basis – not related to character or fitness – for Tennessee to justify contending that the person should not be qualified for admission to practice in Tennessee? Is there any reason to think any other aspect of their prior education should matter?

Well, if you answered like a normal person, you might be surprised to know that such a person has been denied admission in Tennessee and has had to petition the Tennessee Supreme Court for relief.

The reason? The Board of Law Examiners determined that her degrees earned in Canada – specifically a Bachelor of Civil Law degree and a Juris Doctorate from the University of Ottawa – are not substantially equivalent to having graduated from an ABA accredited law school and having obtained an undergraduate degree from a college in the United States.

You can get access to the petition filed for this person, Violane Panasci, with the Court, and the Board’s response in opposition using the download links below at the end of this post. You can get access to a potential amicus brief submitted by what appears to be a collection of right-wing groups by clicking on that link you just saw a few words ago.

The fact that the Board has gotten itself into this kind of pickle again after losing a very similar case – Gluzman v. Tenn. Bd. of Law Exam’rs – just a few years ago is a bit surprising. But that, again, can be explained away to some degree by the way that the current language of the rules hems the Board in.

What is a bit more difficult to explain is why the Board’s response to the Court does anything other than be a verbal shrugging of the shoulders to say “we don’t think we have the power to do anything other than what we did, but we think the Court ought to exercise the power it has to to give this person a license.” Given that the Board admits that if it thought it had discretion to do so, it likely would have, then why in the world litigate this any other way?

By failing to litigate this that way, it is also possible that the Board will find itself getting a much broader adverse ruling from the Court exploring constitutional and other issues with a broader impact — which is what the proposed amicus seeks to have the Court focus upon. (And if the Board was really trying to win this case for some reason, you have to wonder why it wouldn’t point out that the petition itself is not sufficiently verified. The applicant, Ms. Panasci, hasn’t sworn to anything. The applicant’s lawyer has tried to swear to all the facts instead which is … a … pretty baffling approach.)

My guess is that the Court will be able to simply exercise its power to grant Panasci admission without weighing into all of the other thorns the case might present. Given though that the newest member of the Tennessee Supreme Court is a Federalist Society member and an Alito acolyte, on this day when a Justice Alito-penned majority opinion ripped constitutional rights away from women, it would be very naive for me to fail to recognize that my guess is, just that, a guess.