In re Application of O'Siochain ( 2014 )

Nebraska Advance Sheets
IN RE APPLICATION OF O’SIOCHAIN 445
Cite as 287 Neb. 445
In reApplication of Mark R. O’Siochain for
Admission to the Nebraska State Bar.
___ N.W.2d ___
Filed February 14, 2014. No. S-13-539.
1. Rules of the Supreme Court: Attorneys at Law: Appeal and Error. The
Nebraska Supreme Court will consider the appeal of an applicant from a final
adverse ruling of the Nebraska State Bar Commission de novo on the record
made at the hearing before the commission.
2. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
is vested with the sole power to admit persons to the practice of law in this state
and to fix qualifications for admission to the Nebraska bar.
3. Rules of the Supreme Court: Attorneys at Law: Waiver: Proof: Appeal and
Error. After the denial of an application and a hearing before the Nebraska State
Bar Commission, the Nebraska Supreme Court will consider a waiver of Neb. Ct.
R. § 3-105(A)(1)(b) to allow a graduate of a foreign law school based on English
common law to become licensed to practice law in Nebraska if the applicant has
demonstrated that the education he or she received was functionally equivalent to
that for a juris doctor degree available at a law school approved by the American
Bar Association.
4. Rules of the Supreme Court: Attorneys at Law: Waiver: Proof. When a
foreign-educated attorney seeks a waiver of Neb. Ct. R. § 3-105(A)(1)(b), the
burden is on the applicant to affirmatively show that the education he or she
received was functionally equivalent to that of a law school approved by the
American Bar Association.
5. Rules of the Supreme Court: Attorneys at Law: Waiver: Evidence. In
determining whether an applicant’s education is functionally equivalent to that
received at a law school approved by the American Bar Association, the core
courses set forth in In re Application of Brown, 270 Neb. 891, 708 N.W.2d 251
(2006), are evidence of equivalency but not bright-line requirements.
6. Rules of the Supreme Court: Attorneys at Law. Admission rules are intended
to weed out unqualified applicants, not to prevent qualified applicants from tak-
ing the bar.
7. ____: ____. The Nebraska Supreme Court will not apply a strict application
of Neb. Ct. R. § 3-105(C) if, in doing so, § 3-105(C) would operate in such a
manner as to deny admission to a qualified graduate of a foreign law school arbi-
trarily and for a reason unrelated to the essential purpose of the rule.
Original action. Application granted.
Robert C. Guinan for applicant.
Jon Bruning, Attorney General, and Stephanie Caldwell for
Nebraska State Bar Commission.
Nebraska Advance Sheets
446 287 NEBRASKA REPORTS
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
NATURE OF CASE
Mark R. O’Siochain filed an application with the Nebraska
State Bar Commission (Commission) for admission without
examination as a Class I-A applicant. We must decide whether
we will grant a waiver of the educational requirement con-
tained in Neb. Ct. R. § 3-105(A)(1)(b) and admit a graduate
of a foreign law school that is not approved by the American
Bar Association (ABA). Since O’Siochain filed his application,
§ 3-105(A)(1)(b) has been significantly revised, along with the
other rules for admission of attorneys in Nebraska. See Neb.
Ct. R. § 3-101 et seq. (rev. 2013). We apply the rules in effect
at the time of his application.
Upon our de novo review and applying our jurisprudence
regarding § 3-105(A)(1)(b), we conclude that even though
O’Siochain has not taken certain core courses, he has met his
burden of affirmatively showing that he “had attained edu-
cational qualifications at least equal to those required at the
time of application for admission by examination to the bar of
Nebraska.” Accordingly, we waive the educational requirement
under § 3-105(A)(1)(b) and grant O’Siochain’s application for
admission to the Nebraska bar.
FACTS
O’Siochain graduated from University College Dublin
(UCD) in Ireland in 2004 with a bachelor of business and legal
studies degree. He enrolled at UCD after graduating from high
school, as is customary in Ireland, and completed a 4-year law
and business program. UCD is an English-speaking, common-
law school. It is not accredited by the ABA. O’Siochain did
not take (and was not required to take) courses in trusts and
estates, family law, or civil procedure.
UCD operates an international exchange program with
13 other law schools, including 5 ABA-approved U.S. law
schools: DePaul University College of Law; University of
California, Davis, School of Law; University of Connecticut
Nebraska Advance Sheets
IN RE APPLICATION OF O’SIOCHAIN 447
Cite as 287 Neb. 445
School of Law; University of Miami School of Law; and
University of Minnesota Law School. Students at these ABA-
approved law schools can enroll at UCD for a semester or
other period of study. If they complete their courses with the
necessary passing grade, the ABA permits the award of credits
to their ABA-approved juris doctor degree for the legal courses
taken at UCD.
Upon graduating from UCD in 2004, O’Siochain took a
“Barbri” course in Ireland to prepare for the New York bar
examination in February 2005. Barbri is a franchise that offers
bar examination preparation courses and includes video lec-
tures and course materials corresponding with the relevant
state bar examination. O’Siochain took Barbri courses in New
York practice, professional responsibility, trusts and estates,
federal jurisdiction and procedure, and domestic relations,
among others.
The New York State Board of Law Examiners allowed
O’Siochain to sit for the New York bar examination because
his legal education satisfied the durational and substantive
equivalency requirements contained in the Rules of the Court
of Appeals of the State of New York. O’Siochain passed the
New York bar examination and the Multistate Professional
Responsibility Examination (MPRE), on which he scored 104.
The minimum score required in Nebraska is 85. See Neb.
Ct. R. § 3-116(A). He was admitted to the New York bar in
March 2006 and has been a member in good standing since
that time.
From November 2006 to May 2009, O’Siochain practiced
in New York with a large firm. There, he worked on transac-
tional matters including corporate securities and mergers. At
the time of the Commission hearing, O’Siochain was employed
as a corporate attorney with a law firm in Omaha, Nebraska,
handling corporate transactions, compliance, and mergers. He
worked under the supervision of partners in the law firm and
had held the position since July 2011.
On July 26, 2012, O’Siochain applied for admission
to the Nebraska bar as a Class I-A applicant pursuant to
§ 3-105(A)(1), requesting admission without examination.
Section 3-105(A)(1)(b) references and incorporates the
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448 287 NEBRASKA REPORTS
educational qualifications “required at the time of applica-
tion for admission by examination to the bar of Nebraska.”
The educational qualifications for admission by examination
are found at § 3-105(C). On October 16, the Commission
voted to deny O’Siochain’s application for admission, because
O’Siochain could not meet the educational requirements of
§ 3-105(C), in that he did not have a first professional degree
from an ABA-approved law school.
Pursuant to Neb. Ct. R. § 3-110, O’Siochain requested
a hearing before the Commission to demonstrate functional
equivalence between his education and experience and the edu-
cation obtained at an ABA-approved law school. At the hear-
ing on January 11, 2013, O’Siochain presented the following
evidence: (1) that UCD is an English-speaking, common-law
school; (2) that it operates an exchange program with ABA-
approved law schools; (3) that he took a Barbri preparation
course and passed the New York bar examination and MPRE;
(4) that he was admitted to the New York bar and continues to
maintain active status and good standing; and (5) that he has
professional experience in the practice of U.S. law.
At the close of the hearing, the Commission asked
O’Siochain to supplement the record with UCD’s accredita-
tion status, official descriptions of the courses he had taken
there, letters of recommendation from his professors, and
affidavits from law school officials describing the education
offered at UCD. The Commission requested this information
pursuant to the language in In re Application of Brown, 270
Neb. 891, 708 N.W.2d 251 (2006). O’Siochain provided the
first two items of information, but he did not provide letters
of recommendation from his professors or affidavits from law
school officials.
In addition, O’Siochain provided evidence of New York’s
bar admission requirements, which the New York State Board
of Law Examiners determined O’Siochain had satisfied. Those
rules require a foreign-educated applicant to show (1) that he
or she fulfilled the educational requirements for admission to
the practice of law in such foreign country; (2) that throughout
the period of the applicant’s study at the foreign law school,
that school was approved by the government or an authorized
Nebraska Advance Sheets
IN RE APPLICATION OF O’SIOCHAIN 449
Cite as 287 Neb. 445
accrediting body; (3) that the course of study successfully
completed by the applicant was substantially equivalent in
duration to the legal education provided by an ABA-approved
school; (4) that the foreign country’s jurisprudence is based on
the principles of English common law; and (5) that the course
of study successfully completed by the applicant was the sub-
stantial equivalent of the legal education provided by an ABA-
approved law school.
On May 24, 2013, the Commission again denied O’Siochain’s
application for admission to the Nebraska bar as a Class I-A
applicant under § 3-105(A)(1)(b), because he did not meet the
required educational qualifications. Specifically, he had not
taken certain core courses deemed minimally necessary to be
a properly trained attorney, including trusts and estates, fam-
ily law, and civil procedure, as set forth in In re Application
of Budman, 272 Neb. 829, 724 N.W.2d 819 (2006); In re
Application of Brown, supra; and In re Appeal of Dundee,
249 Neb. 807, 545 N.W.2d 756 (1996). Accordingly, the
Commission declined to recommend that this court waive the
educational qualifications requirement of § 3-105(C).
On June 6, 2013, O’Siochain filed a “Motion for
Reconsideration,” and the Commission heard additional evi-
dence. O’Siochain argued that the core courses listed in In re
Application of Budman, supra, and In re Appeal of Dundee,
supra, were not required to meet the functional equivalency
test, but were only examples. He offered evidence that trusts
and estates and family law are not required for graduation
from the University of Nebraska College of Law but that
the University of Nebraska College of Law did require civil
procedure. O’Siochain offered copies of the Barbri course
materials he used relating to trusts and estates, family law, and
civil procedure.
On June 19, 2013, the Commission overruled O’Siochain’s
“Motion for Reconsideration.” O’Siochain appeals.
ASSIGNMENT OF ERROR
O’Siochain assigns, summarized and restated, that the
Commission erred in failing to recommend a waiver of
§ 3-105(C) to this court on the basis that his legal education
Nebraska Advance Sheets
450 287 NEBRASKA REPORTS
did not include courses in trusts and estates, family law, and
civil procedure.
STANDARD OF REVIEW
[1] The Nebraska Supreme Court will consider the appeal of
an applicant from a final adverse ruling of the Commission de
novo on the record made at the hearing before the Commission.
In re Application of Brown, 270 Neb. 891, 708 N.W.2d
251 (2006).
ANALYSIS
[2] The Nebraska Supreme Court is vested with the sole
power to admit persons to the practice of law in this state
and to fix qualifications for admission to the Nebraska bar.
Id. See, also, Neb. Const. art. II, § 1, and art. V, §§ 1 and 25.
O’Siochain applied for admission to the Nebraska bar without
examination as a Class I-A applicant pursuant to § 3-105(A),
which provided as follows:
(1) Class I-A applicants who may be admitted to prac-
tice in Nebraska upon approval of a proper application
are those:
(a) who, as determined by the [C]ommission, have
been admitted to, and are active and in good standing in,
the bar of another state, territory, or district of the United
States, and
(b) who at the time of their admission had attained
educational qualifications at least equal to those required
at the time of application for admission by examination to
the bar of Nebraska, and
(c) who have passed an examination equivalent to the
examination administered in the State of Nebraska, and,
beginning in 1991, who have passed the [MPRE] with the
score required by Nebraska.
The parties do not dispute that O’Siochain has been admit-
ted to and is active and in good standing in the bar of New
York, satisfying § 3-105(A)(1)(a).
Section 3-105(A)(1)(c) requires an applicant to pass the
MPRE, and Nebraska requires a score of 85 or higher on
the MPRE. See § 3-116(A). O’Siochain took the MPRE in
Nebraska Advance Sheets
IN RE APPLICATION OF O’SIOCHAIN 451
Cite as 287 Neb. 445
applying for the New York bar and attained a score of 104,
exceeding Nebraska’s requirements.
Section 3-105(A)(1)(b) does not explicitly state the educa-
tion requirement. Instead, § 3-105(A)(1)(b) references and
incorporates the educational qualifications “required at the
time of application for admission by examination to the bar of
Nebraska,” which are found at § 3-105(C). Section 3-105(C)
requires that applicants “must have received at the time of the
examination their first professional degree from a law school
approved by the [ABA].”
Applicants like O’Siochain, “seeking admission without
examination as a Class I-A applicant[,] must meet the ABA-
approved law school requirement specified in [§ 3-105(C)]
that we have read into [§ 3-105(A)(1)(b)] or, in the absence
of such degree, seek a waiver of [§ 3-105(A)(1)(b)].” In re
Application of Budman, 272 Neb. 829, 834, 724 N.W.2d 819,
824 (2006). In determining whether to grant a waiver, we
examine our jurisprudence relative to educational qualifica-
tion waivers that we have granted previously. See, e.g., In re
Application of Budman, supra; In re Application of Brown, 270
Neb. 891, 708 N.W.2d 251 (2006).
O’Siochain earned his law degree from UCD in Ireland,
a school that is not ABA-approved. Therefore, O’Siochain’s
degree does not satisfy the educational requirement of
§ 3-105(A)(1)(b), and we must determine whether to waive
this requirement. On appeal, O’Siochain argues that when con-
sidered as a whole, his education and experience merit waiver
of the educational requirements in § 3-105.
[3,4] After the denial of an application and a hearing
before the Commission, this court will consider a waiver of
§ 3-105(A)(1)(b) to allow a graduate of a foreign law school
based on English common law to become licensed to practice
law in Nebraska if the applicant has demonstrated that the edu-
cation he or she received was functionally equivalent to that
for a juris doctor degree available at an ABA-approved law
school. See In re Application of Brown, supra. When a foreign-
educated attorney seeks a waiver, the burden is on the appli-
cant to affirmatively show that the education he or she received
Nebraska Advance Sheets
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was functionally equivalent to that of an ABA-approved law
school. See id.
The Commission specifically found, inter alia, that the edu-
cation O’Siochain received was functionally equivalent to the
education provided at an ABA-approved law school. But the
Commission found that O’Siochain had not completed core
courses in trusts and estates, family law, and civil procedure,
which the Commission deemed minimally necessary to be a
properly trained attorney under In re Application of Budman,
supra; In re Application of Brown, supra; and In re Appeal of
Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996). Therefore,
it did not make a recommendation to this court on whether
O’Siochain had “affirmatively shown that his education, con-
sidered as a whole, is functionally equivalent to the education
provided at schools approved by the [ABA].”
The Commission now claims that O’Siochain failed
to adduce sufficient evidence of equivalence between his
legal education and that provided at an ABA-approved law
school, because he did not provide letters of recommenda-
tion from UCD professors and affidavits from law school
officials describing the education offered at UCD. However,
even without such documents, the Commission concluded
that O’Siochain’s legal education was functionally equivalent
to that received at an ABA-approved law school, and our
jurisprudence does not require these documents. See In re
Application of Brown, supra.
The Commission acknowledges that the list of courses in In
re Appeal of Dundee, supra, is not a checklist that an appli-
cant must satisfy to sustain his or her burden. However, it
interprets our jurisprudence to require that applicants missing
one or more core courses must have professional experience in
areas corresponding to classes he or she lacks. It contends that
O’Siochain failed to meet these criteria.
[5] In In re Application of Brown, 270 Neb. 891, 900-01,
708 N.W.2d 251, 259 (2006), we elucidated the criteria for
receiving a waiver:
When requesting a waiver, the applicant must “show
that the education received at any particular school was
functionally equivalent to the education provided at
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IN RE APPLICATION OF O’SIOCHAIN 453
Cite as 287 Neb. 445
ABA-approved schools.” . . . Our waiver cases indicate
that foreign-educated applicants provided extensive infor-
mation regarding their academic background, including,
among other aspects, the accreditation status of their law
school, transcripts, official course descriptions, letters
of recommendation from professors, and affidavits from
law school officials describing the education offered at
their schools.
....
Although we have refused to make a bright-line deter-
mination regarding the legal courses required as pre-
requisites to a waiver, . . . we have recognized certain
legal courses as examples of basic, core courses deemed
“‘minimally necessary to be a properly-trained attorney’”
. . . . These courses include civil procedure, contracts,
constitutional law, criminal law, evidence, family law,
torts, professional responsibility, property, and trusts and
estates. The Commission should not construe this listing
of courses as a “checklist,” but it should consider whether
an applicant’s education includes exposure to a range of
foundational substantive areas of law.
(Citations omitted.) Thus, in determining whether an appli-
cant’s education is functionally equivalent to that received at
an ABA-approved law school, the core courses are evidence of
equivalency but not bright-line requirements.
In In re Application of Brown, supra, the applicant grad­
uated from a Canadian law school which was not approved by
the ABA, but we determined that the applicant’s education as
a whole was functionally equivalent to an education received
at an ABA-approved law school and granted a waiver. In that
case, the applicant had successfully completed courses in all
but two of the subjects enumerated in In re Appeal of Dundee,
249 Neb. 807, 545 N.W.2d 756 (1996): professional responsi-
bility and trusts and estates. However, one phase of the appli-
cant’s bar admissions process in Canada included instruction
and an examination on professional responsibility and prac-
tice management, and the applicant had taken and passed the
MPRE. The applicant had also spent time in an estate-planning
practice group.
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In In re Application of Budman, 272 Neb. 829, 724 N.W.2d
819 (2006), the Canadian-educated applicant had successfully
completed courses in all but two of the core courses: trusts and
estates and professional responsibility. However, in obtaining
his LL.M., the applicant completed coursework in trusts and
estates, and he had practiced in that area. He had passed the
Colorado bar examination and was admitted to the Colorado
bar, with which he remained in good standing. Subsequently,
he practiced law in Colorado for approximately 8 years, spe-
cializing in estate planning and taxation. In light of these facts,
we determined that the applicant’s education as a whole was
functionally equivalent to an education received at an ABA-
approved law school and granted a waiver.
O’Siochain did not take law school courses in trusts and
estates, family law, and civil procedure at UCD. O’Siochain
presented evidence that although civil procedure is required for
graduation from the University of Nebraska College of Law,
trusts and estates and family law are not. Thus, civil proce-
dure is the only course required by the University of Nebraska
College of Law that O’Siochain has not completed. We find
this to be particularly significant.
[6,7] As illustrated above, our jurisprudence expressly states
and demonstrates that the core courses we listed in In re
Appeal of Dundee, supra, are not to be construed as a “check-
list.” Rather, we ought to consider “whether an applicant’s edu-
cation includes exposure to a range of foundational substan-
tive areas of law.” See In re Application of Brown, 270 Neb.
891, 901, 708 N.W.2d 251, 259 (2006). Admission rules are
“intended to weed out unqualified applicants,” not “to prevent
qualified applicants from taking the bar.” In re Application of
Collins-Bazant, 254 Neb. 614, 621, 578 N.W.2d 38, 43 (1998).
This court will not apply a strict application of § 3-105(C) if,
in doing so, § 3-105(C) would “‘“operate in such a manner
as to deny admission to a [qualified graduate of a foreign law
school] arbitrarily and for a reason unrelated to the essential
purpose of the rule.”’” In re Application of Collins-Bazant, 254
Neb. at 621, 578 N.W.2d at 43.
O’Siochain studied U.S. law in preparation for the New York
bar examination, and his studies included trusts and estates,
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Cite as 287 Neb. 445
family law, and civil procedure. O’Siochain was deemed quali-
fied to sit for the New York bar examination, having shown,
inter alia, that the course of study he successfully completed
was the substantial equivalent of the legal education provided
by an ABA-approved law school. He was tested by the New
York bar examination in all fundamental areas of U.S. law,
including trusts and estates, family law, and civil procedure. He
passed the New York bar examination and is a licensed attor-
ney in good standing with the New York bar.
When O’Siochain’s education is combined with his work
experience as an attorney, efforts to become acquainted with
U.S. law, passing of the New York bar examination, and
admission to the New York bar, a waiver is appropriate. Upon
a de novo review of the facts of this case, we conclude that
O’Siochain is a qualified applicant for waiver.
CONCLUSION
Based on a de novo review, we conclude that O’Siochain
has met his burden of proving his law school education
and experience were functionally equivalent to the educa-
tion received at an ABA-approved law school and that as a
result, a waiver of the educational qualifications requirement
of § 3-105(A)(1)(b) is appropriate. We waive this requirement
as it applies to O’Siochain and will allow him to be admitted
to the Nebraska bar.
Application granted.