IN RE: TROY L. BROOKS
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TO BE PUBLISHED
IN RE:
TROY L. BROOKS
OPINION AND ORDER
Troy L. Brooks seeks an order of this Court to permit him to take the Kentucky
State Bar Examination at the next appropriate date.
Brooks claims to be a life-long resident of Kentucky who presently lives in
Bowling Green and commutes to Clarksville, Tennessee where he practices law.
Brooks is a 1993 graduate of the Nashville School of Law in Nashville, Tennessee, a
law school which is not accredited by the American Bar Association or the American
Association of Law Schools.
Brooks passed the Tennessee Bar Examination in February, 1994, and began
practicing law in 1995. He asserts that he has appeared before every level of the
Tennessee court system and is admitted to practice before all the courts of
Tennessee and also in the U.S. District Court for the Middle District of Tennessee and
the United States Sixth Circuit Court of Appeals.
Brooks was denied the opportunity to take the Kentucky Bar Examination by
the Kentucky Board of Bar Examiners on May 5, 1999. In support of his motion,
Brooks argues that his personal situation is rare and might not likely ever become
commonplace.
He claims his motion does not let down the bars for graduates of
questionable law school “mills” but rather gives vitality to the letter and spirit of SCR
2.070(2).
The rule in question, SCR 2.070(2),
which contains an amendment adopted in
1995, known as Subsection (a), provides in relevant part as follows:
(2) An attorney who received a legal education in the United States but
is not eligible to sit for the examination by virtue of not having attended
a law school approved by the American Bar Association or the
Association of American Law Schools may nevertheless sit for the
examination provided the attorney satisfies the following requirements:
(a) the attorney holds a J.D. degree, which is not based on study by
correspondence, from a law school accredited in the jurisdiction where it
exists and which requires the equivalent of a three year course of study
that is the substantial equivalent of the legal education provided by
approved law schools located in Kentucky.
In this matter we are called upon to interpret the following language in
Subsection A, “The substantial equivalent of the legal education provided by
approved law schools located in Kentucky.”
The Board of Bar Examiners responds to the motion that, pursuant to the rule,
it cannot approve the education received by Brooks at the Nashville School of Law as
the equivalent of a three-year course of study that is the substantial equivalent of the
legal education provided by approved law schools in Kentucky.
The Board of Bar Examiners in entertaining the application by Brooks
employed W. Jack Grosse,
former Dean of the Chase College of Law at Northern
Kentucky University, currently a Professor of Law at that institution and a nationally
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recognized expert in regard to law school accreditation, to evaluate the Nashville
School of Law in connection with the Brooks application. Dean Grosse filed a report
which was unfavorable to the Nashville School of Law which the Board incorporated
in its decision.
The Board of Bar Examiners defined the phrase “substantial equivalent” to
mean that a law school must be comparable in resources, physical facilities and
faculty to a Kentucky institution. The Board argues that the determination of whether
a graduate of any institution is competent to take the Kentucky Bar Examination is
determined by the standards required of the school from which that individual
graduates. The actual skills acquired by the applicant may be determined later by a
bar examination. Such threshold review is not uncommon and is practiced in all 50 of
the states of the United States. In addition, Kentucky requires, as do most other
states in this country, an examination by the Character and Fitness Committee, or its
equivalent, as to the integrity of the individual seeking to qualify for examination.
Here, Brooks started at a community college in 1982 and graduated from
Western Kentucky University in 1987. He attended Chase College of Law at Northern
Kentucky University from August 1987 to October 1988, at which time he withdrew
from Chase Law School. In 1990, he attended Nashville School of Law until 1993, at
which time he graduated and passed the Tennessee Bar on his second attempt in
February of 1994.
The Grosse report indicated a lack of cooperation from the Nashville School of
Law in completing all of the forms requested by the Board of Bar Examiners,
supplying the requested information or allowing an on-site campus visit. That, in
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addition to the numerous deficiencies mentioned by Dean Grosse’s report, makes it
impossible for the Board to determine whether Brooks received an educational
experience equivalent to that of a Kentucky Law School.
As noted by Dean Grosses report, there are particular matters of concern:
A)
The material submitted by the Nashville School of Law does not lead to
a reasonable conclusion that the faculty at its institution is of the same high caliber as
the Kentucky law schools, in education, classroom teaching ability, scholarly research
and writing. The Board or its agents have not been permitted to observe any class at
the Nashville Law School. There is no full-time faculty at Nashville; no seminars or
small class experience is present, all as required by standards 16, 20, 21 and 22 of
the ABA code.
B) There is no program for protecting and encouraging academic freedom
and other conditions necessary to attract faculty of a substantial equivalency to
Kentucky law schools. The faculty apparently plays no role in the government of the
law school, including the development of curriculum as provided in standards 5, 6
and 21.
C) The school does not have a law library of any significance, library staff to
assist students, nor can the Board find an adequate computer facility which would
permit students to do legal research.
(D) There is no basis upon which to determine that the school broadens the
legal education of its students by law related activity such as law review or moot court
competition.
All of the problems arise because the Board was denied access to the
Nashville School of Law, which makes it impossible to determine the adequacy of the
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facilities available. In addition, the school presented no financial information and
refused to do so upon specific request. Consequently, it is impossible to determine
that the law school has ample resources to avoid financial pressure to accept less
qualified students or to advance students on a year to year basis on merit and
accomplishment alone. The materials supplied by Brooks as exhibits do not alter our
view of the conclusions reached by the Board or the Grosse report.
We must agree with the conclusion reached by the Board of Bar Examiners
and that of Dean Grosse, that the Nashville School of Law does not meet ABA
standards or AALS standards and further is not a school which could be determined
to be the substantial equivalent of a legal education program provided by approved
law schools in Kentucky. Brooks has not met his burden of proving that the Nashville
School of Law is the substantial equivalent of Kentucky law schools. Consequently,
Troy Brooks does not meet the requirements of SCR 2.070(2)(a).
Cooper, Johnstone, Keller, Stumbo and Wintersheimer, JJ., concur.
Johnstone, J., files a separate concurring opinion in which Cooper and Stumbo, JJ.,
join. Graves, J., dissents by separate opinion in which Lambert, C.J., joins.
Entered:
February 24,200O
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COUNSEL FOR APPLICANT:
William D. Kirkland
W. Terry McBrayer
J. Bradford Derifield
McBrayer, McGinnis, Leslie & Kirkland
300 State National Bank Bldg.
P.O. Box 1100
Frankfort, KY 40602-l 100
COUNSEL FOR RESPONDENT:
Ronald M. Hayes
Grant M. Helman
Robert S. Miller
Kentucky Bar Association
514 West Main Street
Frankfort, KY 40601
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TO BE PUBLISHED
1999-SC-0547-KB
IN RE: TROY L. BROOKS
CONCURRING OPINION BY JUSTICE JOHNSTONE
I concur in the majority opinion in its entirety, but write separately to address the
baffling attack by the dissenting opinion upon the Kentucky Board of Bar Examiners
and the American Bar Association. Perhaps the only statement in the dissent with
which I can readily agree is that this matter involves the interpretation of SCR
2.070(2)(a). The rule still provides:
(2) An attorney who received a legal education in the United States
but is not eligible to sit for the examination by virtue of not having attended
a law school approved by the American Bar Association or the
Association of American Law Schools may nevertheless sit for the
examination provided the attorney satisfies the following requirements:
(a) The attorney holds a J.D. Degree, which is not based on study
by correspondence, from a law school accredited in the jurisdiction
where it exists and which requires the equivalent of a three-year
course of study that is the substantial equivalent of the legal
education provided by approved law schools located in
Kentucky. . .
(Emphasis added).
From this opening by the dissent, the opinion proceeds on the flawed premise
that the issue revolves around the applicant, not the law school. The dissent then
degenerates to a searing attack on the standards applied by the ABA in the
accreditation process for law schools. The dissent cites various law review articles,
cases, and other materials, none of which are contained in the record of this matter,
which purportedly provide the foundation for the dissent’s primary hypothesis.
According to the dissent, the ABA system of accreditation of law schools is a selfserving attempt to restrict entry into the legal profession of disadvantaged persons,
inflate faculty salaries, increase the cost of a legal education, only to mention a few of
the alleged nefarious motives harbored by the ABA.
The Kentucky Board of Bar Examiners is comprised of respected members of
the bar who are appointed by this Court from each Supreme Court district. The Court
delegates many responsibilities to the Board (see SCR 2.000, et seq.), one of which is
the proper application of SCR 2.070(2) to applicants from non-accredited law schools
who wish to sit for the Kentucky Bar Examination. In the matter before us, the Board
engaged an expert to assist in the process of reviewing the Nashville School of Law,
considered the experts report as well as all other submitted materials, and in a
thorough decision, submitted its opinion to the Court that the Board could not conclude
that the Nashville School of Law provided the applicant with the “equivalent of a threeyear course of study that is the substantial equivalent of the legal education provided by
approved law schools located in Kentucky.” As pointed out in the majority opinion, the
lack of cooperation from the Nashville School of Law did not aid the applicant’s request.
For its diligent attempt to carry out the responsibilities delegated by this Court,
the Board is rewarded by the dissent’s implication that the Board is in collusion with the
ABA to accomplish its nefarious agenda. In my opinion, the Kentucky Bar Examiners
deserve better.
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I note in closing that the mandate of SCR 2.070(2) is the current policy of the
Supreme Court of Kentucky. It was not imposed upon the judiciary or members of our
bar by the American Bar Association, nor any other external force. If the better policy is
to evaluate the applicant rather than the non-accredited law school, then we should
change the rule. It makes little sense to criticize the body we charge with carrying out
the policy for its painstaking effort to do so. The dissents concession that the Nashville
School of Law “espouses a fundamentally different approach to legal training” supports
the conclusion of the Kentucky Board of Bar Examiners and the majority opinion. It is
that simple.
Cooper and Stumbo, JJ., join this concurring opinion.
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TO BE PUBLISHED
99-SC-0547-KB
IN RE:
TROY L. BROOKS
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I must dissent.
This matter involves interpretation of SCR 2.070(2)(a) which provides:
(a) The attorney holds a J.D. Degree...from a law school accredited in the
jurisdiction where it exists and which requires the equivalent of a threeyear course of study that is the substantial equivalent of the legal
education provided by approved law schools located in Kentucky.
The qualifying words of art to be interpreted in this matter are “the substantial
equivalent of the legal education provided by approved law schools located in
Kentucky.”
This rule was specifically developed and promulgated to assist a limited class of
persons: graduates of law schools not accredited by the ABA, who nonetheless are
able to provide sufficient indicia of professional competence to be allowed to sit for the
Kentucky Bar examination. That is, it is only fair and just that they should be afforded
the opportunity to have their competence examined and evaluated. Applicant Troy
Brooks, for the reasons outlined below, falls squarely within the ambit of the rule.
The phrase “substantial equivalent of the legal education provided by approved
law schools located in Kentucky” is reasonably interpreted to mean that the applicant
has taken the same required courses as would be taken by a student at an ABAaccredited school, has spent an equivalent or comparable number of hours in the
classroom, has used the same or comparable law school textbooks, has passed
substantive law examinations of reasonably equivalent difficulty, and can pass a
standardized bar exam. I contend that this reading is the one most logically consistent
with the language and intent of the rule.
However, the Board of Bar Examiners sees otherwise. It has interpreted the
phrase “substantial equivalent” to mean that the law school be comparable in
resources, physical facilities, and faculty. The emphasis on these criteria, remarkably
similar to the ABA standards to which the rule itself was intended to provide an
alternative, may be a convenient way of disposing of Mr. Brooks’ application, but fails
entirely to address the ultimate and legitimate question: Is the graduate competent to
sit for the Kentucky Bar examination? Substantially equivalent more rationally relates
to the content of knowledge and skills acquired by the applicant wishing to sit for the bar
examination.
The Kentucky Board of Bar Examiners engaged Consultant Jack Grosse, former
Dean of Chase Law School, to evaluate the Nashville School of Law (NSL) pursuant to
Mr. Brooks’ application. Dean Grosse subsequently filed a report upon which the Board
based its decision. Using ABA standards, Dean Grosse paints a substandard picture of
NSL. Yet, by virtue of his dependancy on ABA standards, Dean Grosses evaluation
does not accord with the purpose or intent of the rule, nor does it fairly answer the
question of whether Mr. Brooks received a “substantial[ly] equivalent” legal education,
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instead addressing only whether NSL possesses resources “substantially equivalent” to
its accredited counterparts. To follow the Board’s evaluation cajculus would be to make
SCR 2.070(2)(a) an absurd tautology, which provides merely that a graduate from a law
school which has not met the ABA standards for accreditation, may still sit for the
Kentucky Bar examination, provided he establishes that his school satisfies the ABA
standards for accreditation. This internal inconsistency, apparently lost on the Kentucky
Board of Bar Examiners, should not elude this Court lest the rule be a hollow one.
Lawyer competence, in most if not all areas of legal practice, demands a wide
range of fundamental skills including the ability to:
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analyze legal problems;
perform legal research;
collect and sort facts;
write effectively (both in general and in a variety of specialized
applications such as pleadings, briefs, contracts or wills);
- communicate orally with effectiveness in a variety of settings;
- perform tasks calling on both communications and interpersonal skills,
such as:
(I) interviewing,
(ii) counseling,
III
_ (“’ ) negotiation;
organize and manage legal work.
The report of former Dean Grosse simply does not address whether Troy Brooks has
acquired any of these quantifiable and measurable skills, and thus it fails to satisfy the
proper diagnostic function of SCR 2.070(2)(a). Like law school graduates from
Vanderbilt University, University of Tennessee, and University of Memphis, Mr. Brooks
has passed the same Tennessee Bar Examination. More importantly, he has
successfully competed with graduates of hundreds of ABA-approved law schools in the
Tennessee legal marketplace for more than five years. Under the Board of Bar
Examiner’s interpretation of SCR 2.070(2)(a), an accomplished NSL graduate practicing
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law successfully for years in Nashville, Tennessee, would never be qualified for law
practice a few miles away in Scottsville, Kentucky. It is irrational to have such a
geographical distinction.
A brief digression is instructive to demonstrate the incompatibility between the
Board’s reliance on the ABA standards in compiling its report and the intent of this
Court in SCR 2.070(a)(2). Notably, the Board’s reliance on the standards signals its
underlying assumption that the goals of the ABA in accrediting schools are identical to
those envisioned by this Court in SCR 2.070(2)(a), namely, protecting the public from
incompetent or unscrupulous attorneys. This assumption is dubious at best. Recent
anti-trust litigation against the ABA, and numerous learned articles, have drawn
attention to what may be less than altruistic forces at play behind the closed doors of
that august organization. See Complaint, Massachusetts Sch. of Law v. American Bar
Ass’n., No.93-6206, at l-2 (E.D. Pa. 1993)(alleging that the ABA inflated faculty
salaries, increased the cost of legal education, and prevented disadvantaged persons
from obtaining a legal education). Many have joined in criticism of the ABA
accreditation process, including the deans of fourteen law schools, incorporating
Stanford, University of Chicago, and Harvard, who in an open letter to the deans of all
accredited schools complained:
We find the current process overly intrusive, inflexible, concerned with
details not relevant to school quality (perhaps even at odds with
maintaining quality), and terribly costly in administrative time as well as
actual dollar costs to schools. It is this sense of responsibility that gives
rise to our concern that the accreditation process for law schools is
heading in the wrong direction. Our varied visions of legal education focus
on the results of the educational process, on the outputs of legal
education. In contrast, the ABA’s accreditation process increasingly
concentrates on the inputs--how many seats there are in the library, for
example.
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An Open Letter to Deans of the A.B.A. Accredited Law Schools, MSL L. Rev. Fall 1994,
at 48, 49; see generally Andy Portinga, Note, ABA Accreditation of Law Schools: An
Anti-Trust Analysis, 29 U. Mich. J.L. Ref. 635, 637 (1996). Additional questions about
the ABA’s primary motivations in accreditation were also raised when, following a yearlong investigation, the Department of Justice (DOJ) filed suit against the ABA for antitrust violations. A consent decree effectively ended the suit, but under it the ABA
agreed to make numerous changes, including reconstituting the accreditation teams,
previously comprised primarily of law professors. Portinaa, supra, at 638. Cf. Goldfarb
v. Virainia State Bar, 421 U.S. 773 (1975) (Court holding that despite state delegation
of authority to bar associations, those associations are not immune from Sherman Act
by state action). According to some, the degree of influence exerted by the ABA as
gatekeeper to legal practice, evidenced by ABA accreditation prerequisites for bar
examinations in 45 states, provides a tremendous incentive for the organization to both
exaggerate fears of “fly-by-night law schools cheating unwary students” and “unfit and
crooked lawyers abusing hapless clients,” and to misrepresent the efficacy of the
accreditation system in warding against those evils. George B. Shepherd, William G.
Shepherd, Scholarlv Restraints? ABA Accreditation and Leaal Education, 19 Cardozo
L. Rev. 2091, 2104 (1998).
Through decades of lobbying, the ABA has convinced most states to limit their
bar examination to graduates of its accredited schools. Concern that the ABA system
of accreditation may potentially be influenced by a self-serving attempt to restrict entry
into the legal profession, or tainted by parties with vested interests in maintaining high
costs for legal education, provides ample justification for a rule such as SCR 2.070
(2)(a). The rule, properly applied, provides a valuable safeguard against possible
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abuses by refusing to abdicate entirely the gateway to legal practice in this state to an
external, non-governmental body. Unfortunately, no meaningful distinction can exist
where the state’s own mechanism of regulation seems beholden, as it does in this case,
to standards perpetuated by the ABA.
The report issued by the Kentucky Board of Bar Examiners casts its decision that
NSL does not offer a “substantial equivalent” of an approved Kentucky school by
cataloging a score of ABA standards that, the Board alleges, the school fails to satisfy.
These focus, almost without exception, on physical resources, administration, and
faculty schedules. While these are important considerations for a student in selecting
which school to attend, they are not necessarily probative of the substance of the
education offered therein. Were Yale University to offer classes to interested students
in a dank and moldy off-campus basement, and with a qualified part-time professor, I
still strongly suspect that a motivated student could find an excellent education there.
This possibility is virtually unimaginable according to the ABA paradigm, a paradigm
which also, incidently, would have left Chief Justice John Marshall and countless other
venerable jurists in our nation’s history out of work.
The “non-ABA” evaluation section of the Board’s report offers little more than a
rewording and reprise of the ABA-based evaluation textually preceding it. Again, the
focus is on a lack of full-time faculty, resources, and elective offerings. The report
concedes that many matters pertinent to assessment could not be addressed without
an on-site visit. Curiously, a cursory review of the materials provided by NSL (upon
which Dean Grosse presumably based his evaluation) suggests answers to several of
the questions the report left unresolved. For example, Dean Grosse’s speculation that
NSL graduates fall short of the 1120 class hours required by the ABA, reveals an
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apparent unwillingness to do the necessary arithmetic. In fact, the NSL course
catalogue indicates that in order to graduate, NSL students must complete a
combination of twenty-four (24) required courses in classes of 22, 45, 65, 79, and 101
classroom hour increments, or, simply put, exactly 1120 hours of mandatory classes.
These hours can then be supplemented by additional elective courses. Obviously, the
required courses alone satisfy the ABA requirements, and even absent elective
undertakings, the class hours are consistent with the requirements of many ABAaccredited institutions.
“Substantially equivalent” does not mean “identical.” In this context it means
having the capacity to produce the same result, namely a competent lawyer. There are,
no doubt, many perceived inadequacies in the educational opportunities available at
NSL when contrasted with institutions meeting the standards set by the American Bar
Association, just as a continuum of advantages exist across ABA-accredited schools.
NSL does not offer the elective course selection available at many schools; the law
library is not extensive; there is no law review providing scholarly research and writing
opportunities; the faculty is not engaged full-time in teaching or writing for scholarly
journals; and student support services are not comprehensive. These, and perhaps
other circumstances, will prevent a school such as NSL from ever being recognized as
a great or distinguished school of law. Yet, this relative educational adversity must not,
in an ostensibly meritocractic profession, constitute an impregnable barrier for the
particularly self-motivated and tenacious student willing to work hard to acquire a solid
legal education. I have no doubt that a student willing and able to surmount the
deficiencies of such an environment can obtain, at least, a substantially equivalent
education to that which all but the most academically inclined students receive at more
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distinguished law schools. Nor do I doubt that, by the same token, a tremendously
expensive Ivy-league legal education can be frittered away by a student unwilling to
truly earn it.
Additionally, it behooves this Court to remember, in assessing the probative
value of the ABA standards as applied to a “substantial equivalen[cy]” analysis, that the
opportunities vaunted in the accreditation process are, for the most part, available to a
very limited number of students. The vast majority of graduates from ABA-accredited
schools will not benefit from small group seminars, law reviews, clinical experience, and
research assistance to faculty members. Seeing as most schools can provide these
benefits to only a small subset of their students, usually the brightest and the luckiest, it
seems counterintuitive to suggest that a school without them, by definition, is underequipped to educate its student body.
NSL, in contrast, espouses a fundamentally different approach to legal training
and serves a largely non-traditional student body. Practically all of the students at NSL
are attending the four (4) year night program because they are gainfully employed.
Many of them are simply unable, due to familial or other constraints, to forego three
years income, and resign themselves to the albatross of debt that increasingly adorns
the necks of the modern American law student. It is my understanding that many NSL
students have jobs while in school that involve legal research, writing, and contact with
the legal profession. They participate in moot court, both trial and appellate, which
requires research and writing outside of the regular classroom work and provides
“practical” training. The volumes in the NSL library are supplemented by computer
research facilities and the availability of other law libraries in the area. The faculty
members of NSL, while less published in academic journals and treatises, tend to do
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their research and writing for actual clients, or, in the case of members of the judiciary,
for their courts. I have ample reason to believe that they take their teaching
responsibilities seriously and that their status as part-time faculty is a reflection on the
non-traditional composition and orientation of the school, not on the quality of their
instruction. In the materials provided the Board by NSL, twenty-three of the thirty-four
well-credentialed professors were reported to have been with the school for 10 years or
longer. The majority of them are drawn from the ranks of legal professionals, including
judges and prominent attorneys, and to suggest that they have less to impart than fulltime academics reveals the bias inherent in the ABA standards.
NSL provides an affordable, practicum-oriented alternative for the study and
practice of law. While some ABA-accredited schools expressly eschew practical legal
instruction in favor of its sublimated, abstract forms, NSL offers a nuts and bolts
approach to the mechanics of the law affordably. It does not have the resources for
courses on defending baby seals in court, surfing pornography web sites, or
entertainment law focusing on lotteries and gambling.
Rebecca Luczydki, Roll Over
Socrates. Unusual Law Courses on the Rise, The Nat’1 Jurist, Nov. 1999 at 13.
In law school, I acquired skills in analysis, research, and communication.
However, my finest instructor was not a professor but rather the late Francis T. Goheen,
with whom I started law practice in 1964. Further, three years of law school did not
’
compare in educational value with the understanding of law which matured during my
one year clerkship with this Court. The practice of law is so necessarily broad that no
one system of teaching it, neither Dean Langdell’s nor Dean Loser’s, has yet been
developed that adequately encompasses all of its facets. Until such a system is
perfected, legal academics and professionals truly interested in fairness and
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excellence, would be advised to honestly assess new models of imparting legal
knowledge.
Apparently, Troy L. Brooks was a good, but not exceptional, student and it
seems unlikely that he would have been afforded the opportunities provided by law
review, practice clinics, etc., had he attended an accredited institution. Like many “B”
students at accredited schools, these opportunities would likely have eluded Mr.
Brooks. Though NSL offers a relatively inexpensive program geared toward working
people who may not have the luxury of a traditional legal education, it could not do so
for long were it forced to adopt the costly trappings so seemingly inseparable from ABA
accreditation.
It is debatable whether the faculty, library facilities and extra-curricula programs
that exist at Kentucky law schools generally provide a more effective legal education
than is offered by NSL. Graduates of NSL do have a substantially lower bar
examination passage rate than Kentucky graduates and this is noteworthy. However,
should the future of select, highly-motivated but disadvantaged students be evaluated
on aspects of their schools not clearly correlated to acquiring a satisfactory legal
education, or should these graduates be considered on other criteria reflective of their
personal merit? In order for SCR 2070(2)(a) to have any discernible distinction from
the law that preceded it, the latter approach must be followed. Substantial equivalency
must be divined from the quality of the respective student’s knowledge, not the
institution’s amenities. To do otherwise is to unfairly deprive worthy students, who for a
variety of reasons must opt for a non-traditional legal education, of the opportunity to
practice law in Kentucky.
A rigorous Bar examination is but one screen to protect the legal consumer;
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numerous other informal and, arguably, more effective safeguards exist which are
constantly shaping the composition of the legal profession. Market forces, including
obtaining and retaining employment, financing a practice and building a satisfactory
reputation, together with means of legal redress’ against unworthy lawyers, all operate
to weed out bad seeds. See Christopher T. Cunniffe, The Case for the Alternative
Third-Year Proaram, 61 Alb. L. Rev. 85 (1997). Therefore, given the extra protections in
place, I can see no principled reason why this Court should stand idly by while an
influential professional organization imposes, with the complicity of the state bar
examiners, another patently suspect restriction.
The ABA has had too much control over decisions affecting access to the study
of law. As a result, the dominant model of American legal education has become one
in which students are taught how to argue aggressively, with no quarter given or taken,
and how to fight an opposing viewpoint with uncompromising technical skill. Fewer than
4% of American law schools require their students to take even one hour of training in
negotiation as part of their learned skills.
As I favor a more relative open access to the bar, I would afford the applicant an
opportunity to take the Kentucky Bar Examination.
Lambert, C.J., joins this dissent.
’ For example, malpractice actions; ethics reviews; criminal sanctions.
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