Kelly v. Utah State Bar

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 6
IN THE
SUPREME COURT OF THE STATE OF UTAH
JAMES J. KELLY,
Petitioner,
v.
UTAH STATE BAR,
Respondent.
No. 20160094
Filed February 6, 2017
On Direct Appeal
Attorneys:
James L. Barnett, Darren G. Reid, Ryan R. Jibson, Salt Lake City,
for petitioner
Elizabeth A. Wright, Salt Lake City, for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUSTICE PEARCE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case requires us to establish for the first time a standard
for evaluating petitions for waiver of the admission rules set forth in
the Rules Governing the Utah State Bar (the Utah Rules Governing
Bar Admission). Petitioner James Kelly graduated from the
University of Toronto Faculty of Law (Toronto law school) in June
2000 and practiced law for over a decade in Massachusetts. He now
asks us to waive rule 14-704(c)(5) of the Utah Rules Governing Bar
Admission, which requires a graduate of a foreign law school to
obtain additional education at an ABA-approved law school before
KELLY v. UTAH STATE BAR
Opinion of the Court
becoming eligible to take the Utah bar examination.1 We conclude
that waiver of our rules is appropriate only in extraordinary cases
where the applicant demonstrates by clear and convincing evidence
that the purpose of the rule for which waiver is sought has been
satisfied. Because those conditions are met in this case, we grant
Mr. Kelly’s petition for waiver.
Background
¶ 2 Petitioner James Kelly graduated from Toronto law school
in June 2000, receiving an LL.B. Toronto law school is located in
Toronto, Ontario, Canada, and, because it is a foreign law school, it
is not accredited by the American Bar Association (ABA).2 Even
though unaccredited by the ABA, the law school is accredited by the
Law Society of Upper Canada and considered the top-ranked law
school in Canada.3 Following graduation, Mr. Kelly passed the
Massachusetts bar examination and was admitted in January 2001 to
practice law in Massachusetts.4 Initially, he worked for Testa,
Hurwitz & Thibeault LLP, but eventually he became a partner at
Morse, Barnes-Brown & Pendleton P.C. (Morse), developing ―a
highly specialized legal practice focused on federal securities
regulation and private investment fund formation.‖
¶ 3 In July 2013, Mr. Kelly moved with his family to Utah,
intending to seek admission to the Utah State Bar (Bar) in order to
help Morse open a Salt Lake City office. Throughout 2013 he worked
_____________________________________________________________
1 Mr. Kelly filed his petition in April of 2016. On May 1, 2016, we
amended our Rules Governing the Utah State Bar. The rule at issue
here was renumbered without substantive change. See UTAH SUP. CT.
R. PROF’L PRACTICE 14-703(b)(6) (2012). Accordingly, for ease of
reference, we refer to the most recent version of the rules throughout
this opinion.
2The ABA does not evaluate foreign law schools for approval. See
AM. BAR ASS’N, STANDARDS AND RULES OF PROCEDURE FOR APPROVAL
OF LAW SCHOOLS, 2015, at vii.
3Toronto law school is also ranked 19th worldwide by the QS
World University Rankings.
4 Massachusetts, unlike Utah, allows graduates of Toronto law
school ―to sit for the general bar examination or apply for admission
on motion on the same basis as graduates of law schools approved
by the American Bar Association.‖ MASS. BD. OF BAR EXAM’RS, R.
PROF’L CONDUCT VI.7.
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Opinion of the Court
from home for Morse clients who were not located in Utah. In March
2014, Mr. Kelly contacted the Bar about submitting an application
and was told he would need to meet the foreign law school graduate
education requirements to be eligible for the bar exam.
¶ 4 Utah allows only two categories of persons to take the bar:
student applicants and attorney applicants.5 Rule 14-704 of the Utah
Rules Governing Bar Admission prescribes the standards attorney
applicants must meet. This rule distinguishes between attorney
applicants from unapproved law schools6 and attorney applicants
from foreign law schools.7 As an attorney applicant from a foreign
law school—Toronto law school—Mr. Kelly is required to satisfy the
requirements outlined in 14-704(c).
¶ 5 Most relevant here, rule 14-704(c)(5) requires Mr. Kelly
to establish by clear and convincing evidence that . . .
he[] has completed with a minimum grade of ―C‖ or its
passing equivalent no less than 24 semester hours, or a
corresponding amount in quarter hours, at an
Approved Law School, within 24 consecutive months.
The 24 semester hours must include no less than one
course each in a core or survey course of constitutional
law, civil procedure, criminal procedure or criminal
law, legal ethics and evidence.8
When Mr. Kelly inquired about obtaining a waiver of this rule, the
Bar informed him that only the Utah Supreme Court could grant a
waiver and that he could not petition the court to request a waiver
until he had submitted an application.
¶ 6 Mr. Kelly did not immediately act on this information and
submit his application, because his health sharply deteriorated.
Eventually, Mr. Kelly was forced to undergo surgery in February
2015 to address his condition. The surgery was successful, and by
March 2015 he began to work on a more consistent basis. Six months
_____________________________________________________________
5 See UTAH SUP. CT. R. PROF’L PRACTICE 14-701, et seq.; cf. UTAH
SUP. CT. R. PROF’L PRACTICE 14-701, et seq. (2012).
See id. 14-701(ll) (2016) (defining ―Unapproved Law School‖ to
6
mean ―a law school that is not fully or provisionally approved by the
ABA‖).
7 Cf. id. 14-703(b) (2012) and 14-704 (2012).
8 Id. 14-704(c)(5) (2016).
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KELLY v. UTAH STATE BAR
Opinion of the Court
later, in September 2015, Mr. Kelly left Morse and joined Holland &
Hart LLP.9 He thereafter submitted his bar application in time for the
fall 2015 deadline. And on February 2, 2016, the Bar formally denied
Mr. Kelly’s bar application because he had not satisfied rule 14-
704(c)(5)’s education requirement for an attorney applicant from a
foreign law school. A week and a half later, on February 12, 2016,
Mr. Kelly petitioned this court to waive rule 14-704(c)(5)’s education
requirement. We have jurisdiction to hear this matter pursuant to
article VIII, section 4 of the Utah Constitution and section 78A-3-
102(2) of the Utah Code.
Analysis
¶ 7 Mr. Kelly, as an attorney applicant with a degree from
Toronto law school in Ontario, Canada, seeks a waiver of rule 14-
704(c)(5) of the Utah Rules Governing Bar Admission, which
requires a graduate of a foreign law school to obtain additional
education at an ABA-approved law school to be eligible to take the
Utah bar examination. Article VIII, section 4 of the Utah Constitution
empowers this court to ―govern the practice of law [in Utah],
including admission to practice.‖ Pursuant to that constitutional
power, ―the authority to waive one of our admissions rules rests
solely with this court.‖10 To evaluate Mr. Kelly’s petition, we must
articulate for the first time a standard for evaluating petitions for
wavier of our admission rules. After articulating the appropriate
standard, we conclude that Mr. Kelly merits a waiver of rule 14-
704(c)(5) of the Utah Rules Governing Bar Admission.
I. We Grant Petitions for Waiver of the Utah Rules Governing Bar
Admission Only in Extraordinary Cases
¶ 8 We have adopted the Utah Rules Governing Bar Admission
as ―predictable, objective standard[s]‖ for measuring an applicant’s
competence to practice law in this jurisdiction.11 Generally, we
_____________________________________________________________
9 Though Mr. Kelly had a webpage at Holland & Hart, the page
clearly indicated that he is ―admitted to practice only in
Massachusetts; he is not admitted to practice in Utah.‖
10In re Anthony, 2010 UT 3, ¶ 12, 225 P.3d 198; see also UTAH SUP.
CT. R. PROF’L PRACTICE 14-702(f) (―Waiver of any rule may only be
obtained by petitioning the Supreme Court.‖).
11Spencer v. Utah State Bar, 2012 UT 92, ¶ 17, 293 P.3d 360 (noting
that the active practice requirement ―provides a predictable,
objective standard by which the Bar may review applications for
admission‖).
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Opinion of the Court
strictly enforce our admission rules, recognizing that departing from
the rules ―would require us to evaluate the credentials of every
[applicant] who seeks a waiver.‖12 So we will depart from these
standards and grant a waiver only in the most extraordinary cases
where ―strict adherence to the rules [will] undermine‖ the goal of
ensuring ―that the people of this state may rely on admitted
attorneys for competent and ethical representation.‖13
¶ 9 In our prior cases, we have exercised our authority to waive
an admission rule on only one occasion, In re Anthony,14 and in that
case ―we decline[d] to set out any specific standard for evaluating
petitions for waiver,‖15 because the attorney applicant provided
three decades of competent, unblemished legal practice in California
and would have undoubtedly satisfied the standard we articulated,
whatever its precise scope.16 We conclude that Mr. Kelly presents a
somewhat different case, requiring us to identify when we will
exercise our authority to grant a petition for waiver.
¶ 10 Specifically, we hold that a waiver is appropriate only in
extraordinary cases where an applicant demonstrates by clear and
convincing evidence that the purpose of a particular rule
contemplated for waiver has been satisfied. Though we have not
previously articulated this standard, it is supported by our
admission rules and precedent.17 Further, in propounding this
_____________________________________________________________
12 Id.
13 In re Anthony, 2010 UT 3, ¶ 15, 225 P.3d 198.
14 2010 UT 3.
15 Id. ¶ 16.
16 See id.
17 See UTAH SUP. CT. R. PROF’L PRACTICE 14-704(c) (―The burden of
proof is on the Applicant to establish by clear and convincing
evidence that she or he‖ has satisfied the rules governing
admission.); see also In re Anthony, 2010 UT 3, ¶ 15 (―And where the
goal of ensuring competent representation would not be advanced
by a strict application of the rules governing admission, we have
contemplated that the rules may be waived in appropriate cases.‖
(emphasis added)); Spencer, 2012 UT 92, ¶¶ 16–17, (considering the
particular purpose of the active practice requirement and concluding
that granting a waiver of that requirement would not ―serve[] the
rule’s purpose‖); In re Gobelman, 2001 UT 72, ¶¶ 4–5, 31 P.3d 535
(declining to grant a waiver to an attorney applicant because his
(Continued)
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KELLY v. UTAH STATE BAR
Opinion of the Court
standard, we emphasize that it is a high bar and that we have wide
discretion to determine when a case is truly extraordinary.
¶ 11 In assessing whether a particular case is extraordinary, we
will not merely consider whether an applicant has satisfied the
purpose of a particular rule—which may be narrow. Instead, we will
consider more globally an applicant’s competence to practice law.
Our admission rules seek ―to protect the citizens of Utah by ensuring
. . . that the people of this state may rely on admitted attorneys for
competent and ethical representation.‖18 We will not waive a rule
and pave the way for an applicant to practice law in this state unless
we are satisfied that the applicant possesses the needed skill,
knowledge, and ability to ethically represent Utah citizens.19
¶ 12 In articulating this standard, we reemphasize that we hold
absolute discretion in deciding when to waive one of our admission
rules. Future petitioners are on notice that we will not open the
courthouse doors to grant waivers as a more convenient alternative
to compliance with the rules. The admission rules stand as important
gatekeepers that, in the majority of cases, accurately gauge an
applicant’s competence to practice law in this jurisdiction. So we
may decline to waive our rules whenever we determine a petition
does not present an extraordinary case and require the applicant to
demonstrate his competence by satisfying the rule. A guiding star of
this analysis is that the applicant’s background and experience must
distinguish him from other applicants to merit waiver. Applying this
standard here, we grant Mr. Kelly a waiver of rule 14-704(c)(5).
II. We Grant Mr. Kelly’s Petition for Waiver of Rule 14-704(c)(5) of
the Utah Rules Governing Bar Admission
¶ 13 As noted above, Mr. Kelly asks us to waive rule 14-704(c)(5).
We will not waive this rule unless his case is extraordinary and he
demonstrates by clear and convincing evidence that he has satisfied
the purposes of the rule. Rule 14-704(c)(5) requires Mr. Kelly
position as a clerk at a district court in Salt Lake City did not qualify
as being ―substantially and lawfully engaged in law practice‖ and
therefore did not satisfy the particular rule).
18 In re Anthony, 2010 UT 3, ¶ 15 (citation omitted).
19 Id. ¶ 16 (waiving the ABA-accredited-law-school requirement
for an attorney who had clearly established his competence to
practice law in this jurisdiction).
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Opinion of the Court
to establish by clear and convincing evidence that . . .
he[] has completed with a minimum grade of ―C‖ or its
passing equivalent no less than 24 semester hours, or a
corresponding amount in quarter hours, at an
Approved Law School, within 24 consecutive months.
The 24 semester hours must include no less than one
course each in a core or survey course of constitutional
law, civil procedure, criminal procedure or criminal
law, legal ethics and evidence.20
The manifest purpose of this rule is to ensure that attorneys
admitted to practice in this state have been sufficiently educated in
the identified areas of U.S. law to provide competent and ethical
representation.
¶ 14 In evaluating whether he satisfies the purpose of this rule,
Mr. Kelly asks us to adopt a test developed by the Nebraska
Supreme Court in evaluating waiver petitions of education
requirements for applicants from foreign law schools.21 Specifically,
he asks us to consider (1) whether ―the education [he] received at
[Toronto law school] was functionally equivalent to the education
provided at ABA-approved schools;‖ and (2) ―the extent to which
[he] ha[s] been exposed to U.S. law.‖22
¶ 15 In this case, we believe both factors provide common sense
guideposts for evaluating whether an attorney applicant from a
foreign law school has satisfied the purpose of rule 14-704(c)(5).23 As
_____________________________________________________________
20 UTAH SUP. CT. R. PROF’L PRACTICE 14-704(c)(5).
21See In re Brown, 708 N.W.2d 251 (Neb. 2006); cf. In re Budman,
724 N.W.2d 819 (Neb. 2006).
22 In re Brown, 708 N.W.2d at 259.
23 We note, however, that in evaluating whether an applicant has
demonstrated by clear and convincing evidence that he has satisfied
the purpose of a particular rule, we do not limit our review to only
certain factors. Because we have a ―constitutional obligation to
control the practice of law,‖ In re Gobelman, 2001 UT 72, ¶ 9, 31 P.3d
535, in a manner that protects the citizens of this state, we may
review the entire record to ensure that an applicant’s experience and
conduct demonstrates that the purposes of a particular rule are
satisfied.
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KELLY v. UTAH STATE BAR
Opinion of the Court
to the first factor,24 Mr. Kelly argues that his education at Toronto
law school is ―functionally equivalent to the education provided at
ABA-approved schools.‖25 He notes that it is accredited by the Law
Society of Upper Canada and is ranked 19th worldwide by the QS
World University Rankings. And as a school rooted in the English
common law,26 he claims that it provided him with instruction in the
core courses identified in rule 14-704—constitutional law, civil
procedure, criminal law, criminal procedure, legal ethics,27 and
evidence28—receiving grades of ―B‖ or better in each course. Though
these courses undoubtedly focused on Canadian law, Mr. Kelly also
claims that they highlighted cases from U.S. constitutional, criminal,
and evidentiary law.
_____________________________________________________________
24 While we have noted that ―[r]equiring graduation from an
[ABA-]approved law school is a highly efficient way of preliminarily
evaluating competence,‖ In re Fox, 2004 UT 20, ¶ 17, 89 P.3d 127,
―there is a critical distinction between graduates of foreign law
schools and graduates of [un]accredited U.S. law schools.‖ In re
Doering, 751 N.W.2d 123, 127 (Neb. 2008). Foreign law schools are
not evaluated by the ABA, whereas U.S. law schools are. See AM.
BAR. ASS’N, STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF
LAW SCHOOLS, 2015–2016, at vii. So when a U.S. law school fails to
achieve ABA accreditation, it may serve as positive evidence of some
deficiency, whereas we learn very little about a foreign law school
merely by recognizing that it is unaccredited by the ABA.
25 In re Brown, 708 N.W.2d at 259 (citation omitted).
26 See UTAH SUP. CT. R. PROF’L PRACTICE 14-704(c)(1) (requiring an
applicant to have ―graduated from a Foreign Law School in a
country where principles of English common law form the
predominant basis for that country’s system of jurisprudence‖); see
also In re Brown, 708 N.W.2d at 259 (―This court has found significant
whether the applicant has received education based on the English
common law.‖).
27 The civil procedure and perspectives on law courses at the
Toronto law school apparently cover legal ethics. Mr. Kelly received
a grade of ―B‖ or better in both courses.
28Cf. UTAH SUP. CT. R. PROF’L PRACTICE 14-704(c)(5) (requiring an
applicant to take ―a core or survey course of constitutional law, civil
procedure, criminal procedure or criminal law, legal ethics and
evidence‖).
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Opinion of the Court
¶ 16 Even though he received his education from a highly ranked
school rooted in English common law, we cannot conclude on the
available evidence that Toronto law school provides an education
that is functionally equivalent to the education provided at an ABA-
approved law school. Mr. Kelly did not receive the same extensive
instruction in U.S. law that a graduate from an ABA-approved law
school would receive. To be sure, he did focus on a legal corpus that,
like U.S. law, derives from the same parent—English common law.
And this corpus may have provided Mr. Kelly with legal knowledge
and skills bearing a resemblance to U.S. law.29 But this information
alone does not establish by clear and convincing evidence that the
education he received at Toronto law school was ―functionally
equivalent to the education provided at ABA-approved schools.‖30
¶ 17 In concluding that we cannot, based on the facts provided
by Mr. Kelly, conclude that Toronto law school provides a
functionally equivalent education, we note the inherent difficulty
this court faces in reviewing the precise nature and quality of the
education offered by foreign law schools. We lack the resources
needed to make a full and accurate determination of an applicant’s
educational experience in the absence of detailed record.31 Future
petitioners seeking waiver of this rule would be well advised to
provide official course descriptions for each course taken or
affidavits from professors or administrators describing the education
offered at their schools, particularly that focused on U.S. law.32 But
_____________________________________________________________
29 Jia v. Bd. of Bar Exam’rs, 696 N.E.2d 131, 136 (Mass. 1998); see also
id. at 136–37 (concluding that an applicant from a Chinese law school
who had received a master’s degree of comparative law and a doctor
of juridical science from Tulane law school had not received a
functionally equivalent education because at Tulane the applicant
―studied . . . almost exclusively [] his primary interest, international
business transactions‖ and completed only one core course
―required of a juris doctor candidate . . . contracts‖).
30 In re Brown, 708 N.W.2d at 259 (citation omitted).
31In re Fox, 2004 UT 20, ¶ 17 (―Requiring graduation from an
[ABA-]approved law school is a highly efficient way of preliminarily
evaluating competence.‖).
32See In re Brown, 708 N.W.2d at 259 (―Our waiver cases indicate
that foreign-educated applicants provided extensive information
regarding their academic background, including, among other
(Continued)
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Opinion of the Court
for some petitioners, the second factor in our analysis of rule 14-
704(c)(5)—an applicant’s exposure to U.S. law—may compensate for
deficiencies in the record regarding the nature and quality of the
education afforded by a foreign law school.
¶ 18 As for the second factor here, the record provides clear and
convincing evidence that Mr. Kelly has been thoroughly exposed to
U.S. law. After graduating from Toronto law school in 2000, he
passed the Massachusetts bar examination in 2001 and practiced law
in that jurisdiction until 2013. During that time, he developed ―a
highly specialized legal practice focused on federal securities
regulation and private investment fund formation.‖ His experience
clearly shows that he has been exposed to U.S. law, thereby showing
that he satisfied the purpose of rule 14-704(c)(5).
¶ 19 But as noted above, merely satisfying the purpose of a rule
is not enough. We will grant waivers only in extraordinary cases. To
determine whether a petition for waiver is extraordinary, we look to
the totality of the circumstances. Under this standard, Mr. Kelly’s
circumstances merit waiver of rule 14-704(c)(5). Taken together, his
education and legal experience not only satisfy the purpose of this
particular rule, but also show more globally that he has the skills,
knowledge, and ability to ethically represent clients in this state. He
attended an internationally recognized law school in Canada, passed
the Massachusetts bar examination, and practiced in Massachusetts
without incident for over ten years in a highly complex field of law.
This case is, we believe, similar to the attorney applicant from an
unapproved law school in Anthony, who demonstrated his
competence to practice law in this jurisdiction by providing three
decades of competent legal representation in California, which led us
to waive the education requirement applicable to graduates from
unapproved law schools.33
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.‖).
33 In re Anthony, 2010 UT 3, ¶ 16, 225 P.3d 198. The fact that the
attorney in Anthony graduated from an unapproved law school
reinforces this conclusion. As noted above, supra ¶ 2 n.1, the ABA
evaluates only U.S. law schools, so a failure to obtain accreditation
may serve as positive evidence of educational deficiencies. In this
case, Mr. Kelly has graduated from a foreign law school that appears
to provide a well-rounded legal education.
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Opinion of the Court
¶ 20 Further, our conclusion that Mr. Kelly presents an
appropriate case for waiver is reinforced by another consideration.
Our rules already permit attorney applicants from unapproved law
schools34 to sit for the bar examination when they ―ha[ve] been
Actively and lawfully engaged in the Full-time Practice of Law in
one or more [U.S.] jurisdictions where licensed for any ten of the
eleven years immediately preceding the filing of the application.‖35 It
is not a large leap to recognize that an attorney applicant from a
highly ranked foreign law school who has recently practiced law in a
U.S. state for over ten years should likewise be deemed to meet the
education requirements necessary to sit for the bar examination.36
Our conclusion in this regard is reinforced by the recognition that
Massachusetts allows Toronto law school’s graduates to ―sit for the
general bar examination or apply for admission on motion on the
same basis as graduates of law schools approved by the American
Bar Association.‖37
¶ 21 Because Mr. Kelly’s unique background and experience
distinguishes him from other applicants—a guiding star in our
analysis38—waiver is appropriate. We hold that where an attorney
has graduated from a highly regarded foreign law school that is
rooted in the English common law, and has been actively, lawfully,
and recently engaged in the full-time practice of law for over ten
years, we will grant a waiver of rule 14-704(c)(5). This waiver does
not guarantee Mr. Kelly’s admission to the Utah State Bar. It only
provides him with the opportunity to sit for the bar examination and
demonstrate he possesses the basic legal knowledge and skill needed
to practice in this jurisdiction.39
_____________________________________________________________
34 See UTAH SUP. CT. R. PROF’L PRACTICE 14-701(ll) (defining
―Unapproved Law School‖ to mean ―a law school that is not fully or
provisionally approved by the ABA‖).
35 Id. 14-704(b)(3).
36 While Mr. Kelly cannot show that he has practiced law full time
for ten out of the last eleven years due to his health problems, the
recent nature of his practice still persuades us to provide a waiver.
37 MASS. BD. OF BAR EXAM’RS, R. PROF’L CONDUCT VI.7.
38 See supra ¶ 12.
39 We note that the Bar asks us to deny Mr. Kelly’s petition
because he engaged in the unauthorized practice of law in this
jurisdiction from May 2014 until February 2016. In the Bar’s view, we
(Continued)
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Opinion of the Court
Conclusion
¶ 22 Mr. Kelly satisfies the purpose of rule 14-704(c)(5) of the
Utah Rules Governing Bar Admission and has distinguished himself
from other applicants as clearly and convincingly qualified for a
waiver. He graduated from a top-ranked foreign law school, Toronto
law school, and has demonstrated his ability to competently
represent clients by recently practicing law for over ten years in
Massachusetts. We therefore grant him waiver of rule 14-704(c)(5) of
the Utah Rules Governing Bar Admission.
should consider the character and fitness of an applicant as part of
our standard for evaluating waiver petitions. In response, we
reiterate that we have wide discretion to consider all relevant
evidence when evaluating waiver petitions. An underlying
assumption of our review of a waiver petition is that an applicant
seeking waiver is in good standing with this state bar, and the bar of
any jurisdiction where he is admitted to practice. Waiving an
admission requirement for an applicant who has a confirmed ethics
violation in this jurisdiction that he has not remedied with the state bar
would undermine the very purpose of the admission rules by failing
to ensure that admitted attorneys will provide ―competent and
ethical representation‖ to citizens of this state. In re Anthony, 2010 UT
3, ¶ 15 (emphasis added) (citation omitted). But where an applicant,
like Mr. Kelly, has acknowledged his wrongdoing and satisfied the
corrective action required by the Bar to remedy the violation, it
would be unfair to deny waiver solely on the basis of a past
violation. Our conclusion in this regard is reinforced by the fact that,
even after we have waived rule 14-704(c)(5), Mr. Kelly must still
satisfy all the character and fitness requirements before being
admitted to practice in this state.
12