Durbano v. State Bar , 2019 UT 34 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 34
IN THE
SUPREME COURT OF THE STATE OF UTAH
In re DALLIN MARK DURBANO
DALLIN MARK DURBANO
Petitioner,
v.
UTAH STATE BAR
Respondent.
No. 20181017
Filed July 17, 2019
On Petition for Extraordinary Relief
Attorneys:
Dallin Mark Durbano, Douglas M. Durbano, Layton, for petitioner 1
Elizabeth A. Wright, Salt Lake City, for respondent
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 Dallin Mark Durbano wants to be a member of the Utah Bar.
After abandoning a request that he receive an accommodation for his
Attention Deficit Hyperactivity Disorder, Durbano took the Bar
Exam and fell just short of a passing score. He now brings this
petition for extraordinary relief and asks us to order his admission
by waiving one of the following Rules Governing the Utah State Bar:
_____________________________________________________________
1 Douglas M. Durbano signed the petition for extraordinary relief.
Dallin Mark Durbano elected to argue on his own behalf.
In re DURBANO
Opinion of the Court
(1) rule 14-711(d) setting a minimum passing score for the Uniform
Bar Examination of 270; (2) rule 14-703(a)(5) requiring a student
applicant to pass the MPRE and the Uniform Bar Examination; or
(3) rule 14-706(a) providing that an applicant who has a disability as
defined by the Americans with Disabilities Act may request an
accommodation and setting forth the requirements that the applicant
must meet. Durbano also asks that if this court is not inclined to
waive any of those rules, that we review his exam and admissions
packet, evaluate his ability to practice law, and admit him to the
Utah Bar.
¶ 2 Durbano has raised interesting and important questions
about the way in which the Utah State Bar interacts with those
requesting accommodation. And he has given us reason to think
about ways in which the Bar can provide more transparent and
responsive service to those seeking accommodation. But he has not
convinced us that we should exercise our discretionary authority to
grant the relief he seeks. Accordingly, we deny the petition.
BACKGROUND
¶ 3 Dallin Mark Durbano suffers from Attention Deficit
Hyperactivity Disorder (ADHD). A physician diagnosed Durbano
when he was in law school. Durbano reports that the diagnosis was a
revelation that explained struggles that he had dealt with during his
educational career. His law school provided accommodation for his
disability and his scholastic performance improved markedly.
¶ 4 Durbano graduated from law school in May 2018 and made
plans to sit for the July 2018 Bar Examination in Utah. Durbano
initially sought accommodation for the Bar Exam. The Utah State Bar
(Bar) requires those seeking accommodation to provide evidence of
their disability and need for accommodation. See R. GOVERNING
UTAH STATE BAR 14-706(a). Among other things, the Bar’s
accommodation request form requires score reports and written
verification of any accommodations received or denied for each of
the following standardized tests that the applicant had taken—the
SAT, ACT, GRE, MCAT, GMAT, LSAT, and MPRE. An applicant
must also have his physician or other appropriate professional verify
the diagnosis and recommend appropriate accommodation.
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Opinion of the Court
¶ 5 Durbano indicated in the Bar application that he has a
disability for which he was requesting test accommodations. 2 He did
not submit any supporting documentation with this request,
however. Durbano asserts that he experienced difficulty in obtaining
some of the documentation he was required to submit. For example,
he claims that he was unable to acquire his SAT and ACT scores.
Durbano explained that he called the College Board in attempt to
locate his scores. 3 Additionally, he claims he was unable to secure a
physician’s evaluation because the physician who diagnosed him
practices in California.
¶ 6 Durbano signed the “Declaration of Completion” and
submitted the application on March 10, 2018. Signing the
“Declaration of Completion” affirms that an applicant has submitted
“all documents” the application requires and that the applicant
attests to the accuracy of the information provided. The declaration
also requires the applicant to acknowledge that he or she
understands that if the application is missing any documentation,
the Bar may reject it. 4
¶ 7 Thereafter, the admissions administrator for the Bar emailed
Durbano, notifying him that his Bar application indicated that he
was requesting test accommodation, but that the Bar had not
received any supporting documentation. The admissions
administrator reminded Durbano that he would need to pay a late
fee and upload his documentation if he still wanted the Bar to
consider an accommodation request. She also informed him that he
would need to submit an amendment to his application if he no
longer intended to seek accommodation.
_____________________________________________________________
2 The Bar application form indicated that a “test accommodation
request will not be reviewed or granted if [the applicant] fail[s] to file
the required forms and medical documentation.” But elsewhere, the
Bar application explains that “[t]he Bar will notify [the applicant] if
[the Bar] need[s] additional information to process your
accommodation request.”
3 The College Board administers the SAT, but not the ACT.
4 The Declaration of Completion provides, “If, after conducting a
preliminary review of my application, the Admissions Office
discovers missing documentation, I will be subject to any of the
following penalties: 1. Assessment of additional fees; 2. Rejection of
my application with only a partial refund; or 3. Denial of my
application with no refund.”
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Opinion of the Court
¶ 8 Durbano responded, “I’ll need to upload an amendment
form because I wasn’t able to find all the documentation (past test
scores, etc[.]) required by the bar. How do I submit an Amendment
form?” The Bar admissions administrator directed Durbano to the
amendment form.
¶ 9 Durbano asserts that he feared his entire Bar application
would be rejected if he did not submit the required documents for
his accommodation request. To avoid the risk, he chose to rescind his
accommodation request and take the Bar Exam without any
accommodation. As part of his amendment, Durbano stated that “I
have a disability requiring accommodation. However, I’m unable to
find test scores from over 15 years ago. Thus, I’m obliged to update
my response to ‘no,’” not seeking an accommodation.
¶ 10 Durbano sat for the July 2018 exam. He achieved a score of
264, six points short of the minimum passing score of 270. Consistent
with how he predicted he would fare without accommodation, he
failed to complete the essay section.
¶ 11 Durbano reapplied to take the Bar Exam in February 2019
and again indicated that he was requesting a testing accommodation.
But again he withdrew his request. And did so for the same reasons
as before.
¶ 12 Durbano then filed this petition for extraordinary relief.
Five days after filing the petition, he emailed the Bar:
My reexamination application initially had a request
for testing accommodation for my ADHD. However, as
was the case in my July 2018 bar exam application, I
am unable to produce many of the documents required
by the application portal in order to even apply for
those accommodations. As a result, I have amended
my reexamination application, rescinding the request
for accommodations . . . .
However, I genuinely have a disability and need
accommodations. The application guidelines and Rules
Governing Admission make clear that the Admissions
Office hasn’t the power to grant a waiver of the
rules/requirements. At least that’s how I understand
them.
But I thought I’d at least try asking if there is any
flexibility in the application requirements for persons
with disabilities applying for disability
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Opinion of the Court
accommodations? Is there anyone I can speak to about
this?
¶ 13 The admissions administrator responded:
You state that you are “unable to produce many of the
documents required” to request accommodations. It
would be helpful to know which documents you are
referring to. We have many accommodation requests
every exam and this is not a common complaint, so I
would need to know what cannot be provided before I
could provide any guidance. . . . The supplemental
materials (such as scores, transcripts, etc.) are . . .
standard, but they may or may not be relevant
depending on the individual case and those few
applicants who have trouble obtaining them usually
contact me to find out what they can do or whether
they are really necessary so we can come up with a
solution.
¶ 14 The admissions administrator explained that the Bar
requires the documentation to evaluate whether someone’s
“disability limits them ‘substantially’ when compared with the
general population” and to “know the extent” of the impairment in
order to assess what, if any, types of accommodations are
appropriate. The admissions administrator also acknowledged that
the Bar cannot waive the rules and noted that the rules set a deadline
for making an accommodations request—a deadline which had now
passed preventing the Bar from considering any updated request.
¶ 15 The admissions administrator then wrote:
It appears you have filed a petition [for extraordinary
relief] with the Court; this may have been premature,
as you have never used any of the administrative
remedies available to you. The Admissions Office, who
reviews accommodation requests for completeness,
and the Test Accommodations Committee, which is
tasked with making decisions on those requests, have
never denied your request because no request was ever
made. You withdrew it and the Admissions Office and
the Test Accommodations Committee never had an
opportunity to address and resolve any of the issues
you were having.
Finally, the administrator identified the options still available to
Durbano: “(1) withdraw for the refund and reapply for the next
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Opinion of the Court
exam, (2) pay the $100 transfer fee to transfer to the next exam, or
(3) take the exam and then request accommodations the next time in
the event of a failing result.”
¶ 16 Durbano deferred his Bar application and did not take the
exam in February 2019.
ANALYSIS
¶ 17 “Petitions for extraordinary relief are governed by rule 65B
of the Utah Rules of Civil Procedure.” Osborne v. Adoption Ctr. of
Choice, 2003 UT 15, ¶ 23, 70 P.3d 58. Rule 65B provides, in specified
circumstances, that “[w]here no other plain, speedy and adequate
remedy is available, a person may petition the court for
extraordinary relief.” UTAH R. CIV. P. 65B(a).
¶ 18 Durbano presses a number of ways that we could grant
him the ultimate relief he wants: admission to the Utah State Bar. He
primarily requests that we waive rule 14-711(d), which sets 270 as
the minimum passing score of the Bar Exam. R. GOVERNING UTAH
STATE BAR 14-711(d). Alternatively, Durbano requests that we waive
rule 14-703(a)(5), which requires applicants to “successfully pass[]
the MPRE and the Bar Examination,” or rule 14-706, which governs
testing accommodations. Finally, he asks that we simply admit him
as a member of the Utah State Bar under our constitutional authority
to manage the Bar. See UTAH CONST. art. VIII, § 4.
¶ 19 We conclude that Durbano has an adequate remedy with
respect to rule 14-706 and deny that part of the petition on that basis.
This petition is a proper vehicle to advance Durbano’s other claims.
But we are not persuaded that Durbano is entitled to the relief that
he seeks.
I. Durbano Has a Plain, Speedy, and Adequate
Remedy With Respect to His Request That We
Waive Rule 14-706, But Not for the
Other Requested Relief
¶ 20 Rule 14-706(a) of the Rules Governing the Utah State Bar
provides:
An Applicant who has mental, physical, or cognitive
disabilities as defined by the Americans with
Disabilities Act (“ADA”) may request test
accommodations. The request, including all supporting
medical documentation, shall be made in writing at the
time of application in the format prescribed by the Bar.
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Opinion of the Court
The rule further states that the applicant must demonstrate that “she
or he is disabled as defined by the ADA; and . . . the disability
impacts her or his ability to take the Bar Examination; and . . . the
accommodation requested is necessary to meet the limitation caused
by the disability.” Id. The rule then provides that the Test
Accommodations Committee decides whether to grant an
accommodation and, if it does, what an appropriate accommodation
would be. Id.
¶ 21 A person displeased with the Test Accommodations
Committee’s decision may request review of that decision by the
Bar’s Admissions Committee. Id. 14-706(c); see id. 14-715(a)(1). And
that committee’s decision can be appealed to this court. Id. 14-715(e).
¶ 22 Durbano could have followed this path to advance his
claim that he was entitled to an accommodation. That is, Durbano
could have submitted a request for a testing accommodation, even if
incomplete. And if denied, he could have requested that the Bar
Admission’s Committee review the Testing Accommodations
Committee’s decision. If again denied, he could have then appealed
the Committee’s decision to this court. Durbano disagrees and
contends that proceeding down that route would have been futile.
¶ 23 Durbano correctly notes that petitioners are not required
“to pursue a futile appeals process solely as a matter of form.” In re
Anthony, 2010 UT 3, ¶ 12, 225 P.3d 198. Durbano argues that it would
be futile to submit an incomplete application and then appeal any
decision of the Test Accommodations Committee because he is
asking for a waiver of the rule and the Bar lacks the authority to
waive rules. See R. GOVERNING UTAH STATE BAR 14-702(f). (“Neither
the Bar nor its representatives has authority to waive any rule.”).
¶ 24 But Durbano’s complaint is not with the rule that allows the
Bar to grant test accommodations in appropriate circumstances. His
beef centers on how the Bar implements that rule. Put differently, no
rule requires Durbano to submit his test scores and physician’s
verification. These are requirements the Bar imposes. And the Bar
has the ability to adjust those requirements in appropriate
circumstances. The only requirement that the rule places on the Bar is
that it review testing accommodation requests made in writing at the
time a Bar application is submitted. See id. 14-706.
¶ 25 Indeed, the admissions administrator suggested in her
email to Durbano that the Test Accommodations Committee could be
flexible with the documentation requirements listed in the Bar
application form:
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Opinion of the Court
The supplemental materials (such as scores, transcripts,
etc.) are also standard, but they may or may not be
relevant depending on the individual case and those
few applicants who have trouble obtaining them
usually contact me to find out what they can do or
whether they are really necessary so we can come up
with a solution. 5
¶ 26 Simply stated, Durbano had a plain, adequate, and speedy
avenue for the relief he seeks with respect to his request for an
accommodation—submit an accommodations request. As a result,
his request that we waive rule 14-706 is not the proper subject of a
petition for extraordinary relief. 6
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5 Durbano’s arguments suggest that the Bar could be more
transparent in this process. If, as the admissions administrator
suggested in her email, the Bar may conclude that some of the
information it requests may not be “really necessary” in a particular
case, it would be better for the Bar to make this plain as part of the
application process and to not announce it on a case-by-case basis.
6 Underlying Durbano’s petition runs Durbano’s concern that if
he filed an incomplete request for accommodations, the State Bar
would deny his entire application. Durbano bases that on the
language in the “Declaration of Completion” that if “the Admissions
Office discovers missing documentation” the applicant may face
“[r]ejection of [their] application” or “[d]enial of [their] application.”
In addition, Durbano cites to language in the Bar application packet
that an applicant “must provide the appropriate forms . . . with [a]
completed application for admission or [an] accommodation request
will be denied without review.”
The Bar asserts that Durbano’s fear that “his entire Bar
application would be denied for failure to submit a complete request
for accommodation” is “inaccurate:” “Acceptance of the [B]ar
application is not contingent on the uploading of test accommodation
forms. Only the test accommodation request is subject to denial if
accommodation documentation is missing.” And they contend that
Durbano should have contacted them to seek assistance and that the
Bar would have assisted him in finding a solution—either by
directing him on how to obtain test scores or by urging him to submit
what he had even if he could not obtain the scores.
We take the Bar at its word that it would not have rejected
Durbano’s entire Bar application based on an incomplete
(continued . . .)
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Opinion of the Court
¶ 27 In contrast, a petition for extraordinary relief is the
mechanism for Durbano to press his remaining claims for relief. Only
this court could waive rule 14-703(a)(5) requiring a passing score on
the Bar Exam, waive rule 14-711(d) requiring a score of 270 on the
Exam, or conduct an independent evaluation and admit him to the
Utah Bar despite his not having passed the Bar Exam. And in
contrast to Durbano’s argument regarding rule 14-706 where waiver
of that rule is not necessary for the relief he seeks, waiver of rules 14-
703(a)(5) or 14-711(d) is necessary for the relief he seeks.
II. Durbano Does Not Convince Us
to Grant the Relief He Seeks
¶ 28 This court has broad discretion to grant or deny
extraordinary relief. See Gilbert v. Maughan, 2016 UT 31, ¶ 14, 379 P.3d
1263. In the exercise of this discretion, we consider a variety of factors
including “the nature of the relief sought, the circumstances alleged
in the petition, and the purpose of the type of writ sought.” Osborne
v. Adoption Ctr. of Choice, 2003 UT 15, ¶ 23, 70 P.3d 58 (citation
omitted) (internal quotation marks omitted); see also Gilbert, 2016 UT
31, ¶ 16 (discussing additional nonexclusive factors a court may
consider).
¶ 29 Here, the relief Durbano seeks is remarkable in scope. All
three of his remaining requests would require us to, in one form or
accommodation request. And we believe that the Bar would have
worked with Durbano if he had understood the Bar admissions
administrator’s response as an offer to help when he contacted the
Bar regarding his missing test scores.
The problem, however, is that Durbano could reasonably read the
Declaration of Completion in the fashion that he did. And he could
reasonably conclude that he risked losing his entire application
because of an incomplete accommodation request. And to complicate
matters further, the Bar admissions administrator’s response to
Durbano suggests a willingness to assist, but never explicitly offers
assistance.
These issues could be avoided in the future if the Bar is more
upfront about its ability to assist with questions and direct applicants
to contact the admissions office if they need help or have difficulty
with the request forms. In addition, a clarification to the Bar
application form that an incomplete accommodation request form
will not doom an otherwise complete admissions application could
avert similar issues in the future.
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another, set aside the long-standing and universally understood
requirement that a law school graduate pass the Bar Examination if
she wants to practice law in Utah. Although there is no set algorithm
we employ to decide when extraordinary relief is warranted, it
stands to reason that the more extraordinary the relief the petitioner
seeks, the more compelling the showing of an entitlement to that
relief should be.
¶ 30 Durbano’s primary argument focuses on the difficulty
Durbano faced in providing the information the Bar requires to
assess whether an applicant is entitled to an accommodation and the
form the accommodation will take. According to Durbano, “the
testing accommodation requirements were so inordinately
oppressive that he was prevented from applying for such.” But the
information he presents to support that contention does not paint the
portrait of an insurmountable hurdle.
¶ 31 Durbano first complains that he was required to submit a
history of scores from standardized tests along with proof of any
testing accommodations provided. And he asserts that “after a
diligent search, utilizing every practical resource available,” he was
unable to obtain his ACT or SAT scores.
¶ 32 When asked during oral argument about the steps he took
to procure the records, Durbano reported that he placed a single
phone call to the College Board. After learning his SAT score was not
immediately available, he did not take further action, even though
the administrator he spoke to informed him that he could request a
manual archive search. And in response to a question seeking to
clarify whether Durbano could not obtain his ACT scores because he
did not take the ACT or because they were lost, Durbano replied that
he “d[id not] recall.”
¶ 33 Durbano’s argument concerning the requirement that he
obtain a physician’s evaluation is similarly unpersuasive. Durbano
argues that it was “not possible” for him to secure his physician’s
completed evaluation because his diagnosing physician “is currently
located in Irvine, CA.” During oral argument, Durbano admitted that
he never asked his physician to fill out the form. And it is not at all
apparent how distance alone would have prevented Durbano from
obtaining the information from his physician. Nor is it obvious why
Durbano could not have sought diagnosis from a local physician if
distance were an obstacle.
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Opinion of the Court
¶ 34 Given the circumstances alleged in the petition and the
nature of the relief he seeks, Durbano has not persuaded us to issue
the writ he desires. 7
¶ 35 Durbano next argues that we should either waive the rules
that require an applicant to pass the Bar Examination or admit him to
the Bar because “[s]trict adherence to the rules in [his] case would
undermine [the Bar’s] purpose of protecting the citizens of Utah.”
Durbano details his law school achievements, his community service,
and his work as a legal intern and argues that these, among other
things, demonstrate that he has the chops to be an attorney.
¶ 36 Even though Durbano’s achievements are laudable, we are
unconvinced that we should overturn the system we have in place—
even on a one-time basis—for evaluating fitness to practice law in the
state of Utah. We faced a similar question in Spencer v. Utah State Bar,
2012 UT 92, 293 P.3d 360. There, an attorney sought admission under
rule 14-705, which, at the time, allowed admission to the Utah State
Bar without taking the Utah Bar Examination if, among other things,
the applicant had practiced “for at least three of the previous [five]
years immediately preceding the date of the filing of the
application.” Id. ¶ 16 (alteration in original) (emphasis omitted)
(citation omitted).
¶ 37 Spencer had more than sixteen years of practice as a
member of the Idaho State Bar. Id. ¶ 3 But he had not actively
practiced, because of a disability, for at least three of the previous
five years, as the admission rule required. Id. ¶¶ 3–5. Spencer asked
us to look past that and focus on his extensive experience and
successful career. Id. ¶ 11. He argued that he had “achieved the skill
and competence necessary to practice law” in Utah because of his
“previous and extensive experience in Idaho.” Id. (internal quotation
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7 At oral argument, Durbano argued, for the first time, that the
accommodation request process is so “oppressive and
discriminatory” that his disability prevents him from properly
completing them without an accommodation. We do not, as a matter
of fairness, address arguments that rear their heads for the first time
in oral argument. Porenta v. Porenta, 2017 UT 78, ¶ 33, 416 P.3d 487.
But we are sympathetic to the concerns Durbano has raised and
ask the Bar to examine the process for requesting an accommodation
and explore whether the process can be improved so that we can
better serve those whose disabilities might prevent them from
completing the accommodation request.
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marks omitted). He further argued that his “experience and
qualifications demonstrate[d] that he [was] competent to
immediately begin representing clients in Utah.” Id.
¶ 38 We rebuffed Spencer’s attempt to gain admission. In so
doing, we noted that we did “not doubt that [] Spencer ha[d] accrued
significant legal experience.” Id. ¶ 16. And we noted that “[i]n some
instances, the active practice requirement may prevent skilled,
competent lawyers from being admitted to the Utah Bar on motion.”
Id. ¶ 17. But we reasoned that the requirement provided “a
predictable, objective standard by which the Bar may review
applications for admission.” Id. We feared that if we were to depart
from an objective standard, we would soon be required to “evaluate
the credentials of every lawyer who seeks a waiver of the active
practice requirement.” Id. And we agreed with the Bar that if we
were to undertake that process, we would “inevitably produce
inconsistent results, [and] promote the appearance of unfairness.” Id.
(alteration in original) (internal quotation marks omitted).
¶ 39 The same logic adheres here. A Bar Examination with a set
passing score promotes a predictable and objective system. If we
grant Durbano’s petition and admit him to the Bar, it is not difficult
to foresee that we will soon be in the business of reevaluating the
admission applications of others who fail to achieve a passing score.
We understand that the examination process is not perfect, and that
legitimately tough cases will live in the margins, but that is the price
of a predictable and objective process. For these reasons, we deny
Durbano’s petition for extraordinary relief.
CONCLUSION
¶ 40 Durbano has a plain, adequate, and speedy remedy to
advance his claim that he should be granted an accommodation
under rule 14-706 and his petition is denied with respect to that
claim on that basis. Durbano lacks such a remedy with respect to
rules 14-703(a)(5) and 14-711(d), and with respect to his request that
he be admitted to the Bar under our constitutional authority to
oversee the practice of law. His petition is therefore an appropriate
mechanism to advance those claims. But we deny the petition on its
merits because Durbano has not shouldered his burden of
demonstrating that we should grant him the relief he seeks.
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