IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE PETITION OF
DANA M. CULVER,
Petitioner.
Before us is Petitioner Dana M. Culver’s request for waiver of the Rules for
Admission to the State Bar of Montana. Specifically, Ms. Culver requests a waiver,of
Section I(B) of the Rules for Admission to the State Bar of Montana. Section I(B) provides
that a student or an attorney applicant “must have a Juris Doctor or equivalent degree from
a law school accredited by the American Bar Association at the time of graduation[.]”
Ms. Culver is a 2000 graduate of the University of West Los Angeles School of Law
(“UWLA”), located in Inglewood, California. Ms. Culver contends that we should not rely
strictly on the American Bar Association (“ABA”) accreditation standards in determining
which law school graduates should have the opportunity to sit for the Montana Bar
Examination. While UWLA is not accredited by the ABA, Ms. Culver states that UWLA
is accredited by the State Bar of California and regionally accredited by the Western
Association of Schools and Colleges (“WASC”). Further, Ms. Culver argues that if the
Montana Bar Examination is dispositive of an applicant’s skills and abilities, she should be
afforded an opportunity to sit for said examination and demonstrate that she can meet the
standards of practice in a profession for which she has prepared for over three years.
In support of Ms. Culver’s petition, Anne E. Arvin, the Acting Dean of UWLA,
submitted a letter stating that UWLA is required to comply with rigoious rules and
regulations regarding its admissions, curriculum, faculty, financial integrity, library, and
scholastic standards to maintain accreditation by the State Bar of California and WASC. In
so doing, UWLA annually prepares reports and hosts on-site visits. In addition, MS. Arvin
states that UWLA’s accreditation by the State Bar ofCalifornia provides UWLA’s graduates
the opportunity to sit for the California Bar Examination. Ms. Arvin indicates that graduates
of UWLA who have sat for the California Bar Examination have a cumulative bar passage
rate of approximately 70%. Moreover, Ms. Arvin contends that graduates of UWLA are
“well-prepared” for the practice of law, as UWLA combines the traditional law school
curriculum taught by full-time professors using the Socratic method with varied elective
course offerings and practical courses taught by practitioners working in specialized areas
of law.
Ms. Arvin further explains that IJWLA has “consciously chosen not to pursue ABA-
approval primarily because ofthe strict regulations the ABA imposes regarding the allocation
of resources.” Ms. Arvin maintains that UWLA’s “freedom from ABA rules dictating the
allocation of resources allows UWLA to keep tuition costs low and to commit all the
resources necessary to ensure that our graduates achieve commendable bar passage rates.”
In response to Ms. Culver’s petition, the Montana Board of Bar Examiners (“the
Board”) provided comments for our review in this matter. The Board recommends that we
deny Ms. Culver’s petition. The Board notes that its comments in this matter are not offered
as a party adverse to Ms. Culver, but rather as a “commission that has gained expertise over
the years in the field of bar admissions.”
First, the Board submits that we should not grant waivers in individual cases unless
an applicant presents an exceptional circumstance in which a hardship not anticipated when
the rule was adopted will be suffered, or in which the applicant will suffer a hardship that “he
or she cannot be fairly charged with bearing.” Otherwise, the Board contends we “will run
the risk of exceptions by waivers swallowing the rule.” The Board asserts that neither
circumstance exists in this case. We agree.
The Board points out that the Court was aware of the type of hardship presented by
Ms. Culver when it adopted the requirement that an applicant of the Montana Bar be a
graduate of an ABA accredited law school since, at the time of the rule’s adoption, the Court
was aware that all law schools were not accredited by the ABA. However, the Court decided
to ensure that members of the Montana Bar possess comparable quality legal educations
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obtained from law schools accredited by the ABA, which imposes uniform national
standards.
Additionally, as the Board accurately contends, Rule 1 (B) of the Rules for Admission
to the State Bar of Montana was in existence at the time Ms. Culver entered law school.
Accordingly, Ms. Culver was on notice at the time she entered a non-ABA accredited law
school that she would not be allowed to sit for the Montana Bar Examination, nor bar
examinations in approximately half the states in the country, if she graduated from such
school. While the Court may, “under circumstances it deems sufficient,” waive any
requirement of the Rules for Admission to the State Bar of Montana, pursuant to section
VII(A), we do not deem Ms. Culver’s circumstances sufficient to waive Section l(B) ofthe
Rules for Admission to the State Bar of Montana.
Next, the Board endorses the continued application of Rule l(B) to ensure applicants
of the Montana Bar have obtained a quality legal education. The Board contends that neither
it nor this Court has the resources or expertise to independently examine the legal education
offered by law schools around the country. We agree.
The ABA applies uniform national standards, recognized throughout the country by
each state’s bar examination commission, focusing exclusively on examining the legal
education offered by law schools. However, neither the Board nor this Court is familiar with
the accreditation standards of the State Bar of California or of regional accrediting
organizations, such as the WASC. Typically, regional accrediting agencies accredit various
institutions of education, not merely law schools. Thus, such agencies may not impose the
same educational standards as does the ABA, which only reviews the qualityofthe education
offered at law schools throughout the country. Moreover, we do not have the expertise or
the resources to conduct independent reviews of non-ABA approved law schools to
determine which such schools offer the quality legal education we seek to obtain from
Montana Bar applicants. Such a review could require on-site inspections of the law schools
and continued monitoring compliance ofnumerous scholastic requirements. This is a review
that is best handled by the ABA since it is equipped to better examine, pursuant to its
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imposition of uniform national standards, the quality of legal educational programs offered
by law schools throughout the country.
Further, in response to Justice Trieweiler’s Dissent regarding the tuition cost
differentials between ABA accredited law schools compared to non-ABA accredited law
schools, we note, after examining various law schools’ intemet websites, that there are
numerous ABA accredited law schools located throughout the country which are less
expensive than UWLA. For example, tuition and fee costs at UWLA for the 2001-2002
academic year total $14, 260.00 ($13,860.00 for tuition costs and $400.00 for fees). In
comparison, the tuition and fees for the 2001-2002 academic year at the following ABA
accredited law schools located within California, including: University of California-Los
Angeles total $1 I,1 56.00 for California residents; University of California-Berkeley total
$10,9 10.50 for California residents; and University of California-Davis total $11,424.00 for
California residents. In addition, tuition and fees at the University of Montana for the 2001-
2002 academic yeartotal approximately$7,550.00 forMontanaresidents and$14,142.00 for
out-of-state residents. Hence, it appears from examination of the law schools’ websites, that
Ms. Culver could have obtained a legal education from the before mentioned ABA accredited
law schools more economically than UWLA. For the foregoing reasons,
IT IS HEREBY ORDERED that Ms. Culver’s Petition for Waiver of the Rules for
Admission to the Bar of Montana is hereby DENIED.
The Clerk of Court is directed to mail a copy of this Order to the Administrator of the
Montana Board ofBar Examiners, to the Chair of the Montana Board ofBar Examiners, and
to Dana M. Culver; P.O. Box 8884, Missoula, Montana 59807.
DATED this ,T ‘hday of February, 2002.
Justices
Justice W. William Lcaphart specially concur-ring.
In his dissent, Justice Tricweiler argues that there is no evidence that the ABA
standards correlate to a quality legal education; rather, he contends the standards increase the
costs of education, hamper innovations in legal education, discriminate against working
(adjunct) faculty and discriminate against non-traditional and minority students. As he
indicates, these arguments have been advanced by the Massachusetts School of Law at
Andover (MSL) in its effort to achieve recognition for its graduates.
In fairness to the issues being debated, it should be noted that the ABA has responded
to MSL’s arguments in various forums around the country, including a brief filed before the
Oregon Supreme Court.
In the Oregon matter, the ABA made the following points, amongst others:
Since 1973, the number of ABA-accredited law schools has increased by 19 percent,
the number of law students enrolled in J.D. programs at ABA-accredited schools has
increased by 27 percent, the number of enrolled minorities has increased by 233 percent, and
the number of enrolled women has increased by 250 percent.
The law school curricula have grown more diverse (innovative) as evidenced by the
increase in elective credit hours by some 24 percent. The number of foreign, international
and comparative law courses has increased by more than 24 percent as well.
As to the allegation that the standards discriminate against adjunct professors, the
ABA points out that there has been a dramatic increase in the extent to which ABA-
accredited schools have relied on part-time adjuncts, drawn from the ranks ofjudges and
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practitioners. Bctwccn 1074-75 and 1996-07, the number of part-time tcachcrs at ABA-
accredited law schools in fact increased from 1,777 to 4,980; an increase of 180 percent as
compared to the 70 percent increase in full-time law professors during that same period.
Although our reliance on ABA-accreditation is not the perfect resolution to a difficult
problem, it is nonetheless preferable to having this Court, with its limited resources and staff,
attempt to make accreditation determinations on a case-by-case basis.
Montana only has one ABA-accredited law school-the University ofMontana School
of Law in Missoula. Having graduated from that law school and having been involved in the
Montana legal community as a lawyer and judge for some 30 years, I can attest that the
University of Montana School of Law is a valuable asset to the practicing bar and the citizens
of this state. If this Court were to change the requirements so that graduation from an ABA-
accredited law school such as the University of Montana School of Law was no longer
required, that decision would most certainly have an adverse impact on the legislature’s
perceived need for and support of the School of Law. I do not favor changing the require-
ments for taking the bar examination in such a way that the support for the University of
Montana School of Law will be eroded.
Justice Jim Nelson specially concurring:
I concur in Justice Leaphart’s concurrence. While not agraduate ofthe University of
Montana Law School, I consider it to be not only an excellent academic institution but also
an important education training resource for the Bench and Bar of this State. I am loathe to
take any action that might, either directly or indirectly, send a message to the legislature that
the high accreditation standards which the Law School must meet are expendable.
Chief Justice Karla M. Gray joins
concurring opinion.
Justice Terry N. Tricwcilcr dissents.
I dissent from this Court’s order which denies Dana M. Culver’s petition for a waiver
of the requirement that she graduate from a law school accredited by the American Bar
Association in order to sit for the State Bar examination and practice law in the state of
Montana. The majority agrees with the Montana Board of Bar Examiners that requiring
graduation from an ABA accredited law school is necessary to ensure that applicants to
membership in the Montana Bar have a “quality legal education.” However, no empirical
data has been offered to suggest that the ABA’s standards correlate in any way to a quality
legal education. What is evident is that the monopoly given to this private trade association
to set standards for law schools increases the cost of legal education, burdens new members
of the profession with debt that limits their options for professional and public service,
hampers innovations in the area of legal education, discriminates against “working faculty”
with practical professional experiences to share with their students, and discriminates against
non-conventional students and minorities who do not meet the arbitrary admission standards
imposed.
With no empirical data to suggest that the ABA standards do anything to further legal
education, Dana M. Culver has been denied the opportunity to even apply for admission to
the practice of law in Montana and take a test which would demonstrate the extent of her
legal knowledge. Aside from the obvious injustice to Culver, what this demonstrates is that
even the members of this Court who are known for their open-minded and thoughtful
approach to issues will sometimes accept representations from the legal establishment on
blind faith with no critical analysis whatsoever.
Dana M. Culver received a Juris Doctorate degree from the University of West Los
Angeles in May 2000. UWLA is accredited by the California State Bar and the Western
Association of Schools and Colleges.
According to the dean of UWLA,
The State Bar of California’s Committee of Bar Examiners imposes rules that
regulate our admissions, curriculum, scholastic standards, library, faculty,
governance, and financial integrity. We prcparc extensive annual reports and
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host on-sight visits annually. Our continued compliance with these regulations
cnsurcs our gmduatcs’ right to sit for the State Bar Examination.
The Westcm Association ofSchools and Colleges considers the degree ofthe school’s
“student support, finances, physical plant, library and information systems, and faculty.” The
WASC also visits the campus regularly and has extensive reporting requirements.
According to the law school dean, UWLA has chosen not to pursue ABA approval
because doing so would require that it allocate funds to unnecessary resources rather than
what it determines are the needs of its students. As an example, the dean notes that,
[A]n ABA-approved law school must maintain a certain number of volumes
in its library depending upon the number of students. While our library
exceeds the State Bar-imposed standards and complies with WASC standards,
UWLA chooses to make its decisions regarding library acquisitions based
upon what will benefit our students. Rather than expending funds to meet an
arbitrary standard for the number of volumes in the library, regardless of how
often those volumes are used and by whom, we have chosen to use those funds
to provide student support services.
The excellent bar passage rate for UWLA students in California is noted in the
majority Order. (70%). What the majority’s Order omits is that that passage rate compares
to 37% for all those who took the same examination.
Dana M. Culver has clearly shown that her legal education qualifies her to at least sit
for the Montana State Bar examination regardless of whether that education has received a
stamp of approval from the American Bar Association.
However, the impact of the majority’s Order is greater than its unjust effect on Dana
M. Culver. This Court has recently established committees or commissions to deal with the
explosion in pro se litigation and to deal with the reality that all but the most wealthy are
denied access to our state’s justice system dy being denied affordable representation. It’s no
secret that a substantial factor in the high cost of legal representation is the high cost of legal
education. For the 2001-2002 academic year, tuition alone at Yale University Law School
is $29,800 and at Stanford, $29,726. Nor is the high cost of legal education limited to this
nation’s most elite schools. Tuition at John Marshall Law School in Chicago, Illinois, for the
same time period was $24,300. The cost at Loyola Marymount in Los Angeles, California,
IO
is $25,184.
As a result of the cost of legal education, law students arc graduating from ABA-
accredited law schools with debt loads of $50,000 to $100,000. With that kind of debt, and
assuming they are among the chosen few, they can go to work for the nation’s corporate law
firms and sleep in corporate dormitories while pumping out 2000 billable hours a year in
order to support one of the nation’s last legal pyramid schemes or they can face the crushing
burden of that debt for the majority of their legal career which will deny them the opportunity
for public service and many worthwhile professional options.
On the other hand, tuition for the same academic year at Massachusetts School of
Law, located in Andover, Massachusetts, was $.12,300. MSL graduates are permitted to take
the bar exam in Massachusetts where lawyers are most familiar with the quality of its
education and in the states of New Hampshire, Maine and Wisconsin where the school has
been given an opportunity after hearing to have the quality of its education considered.
However, MSL is not accredited by the ABA.
The majority notes several ABA-accredited law schools where the tuition for 2001-
2002 cost less than the cost of attending the University of West Los Angeles School of Law
- a non-accredited school. However, all of the schools cited by the majority are publicly
funded universities to which there is limited access. In fact, the California law schools cited
by the majority are accessible to only the most gifted students. UWLA is a private institution
specializing in legal education for people in the Los Angeles area. Its stated mission is:
[T]o be a leader in offering legal and paralegal education to men and women
from diverse educational, occupational, cultural, ethnic backgrounds, and
without regard to age, sexual orientation or disability especially to those who
must study part-time, so as to contribute to the democratizati,on of legal
community.
The majority’s comparison of tuition at the publicly funded law schools it lists to the
tuition at UWLA is like comparing apples to oranges.
MSL has been able to hold down the cost of legal education and provide access to
legal education to non-traditional students and minorities by using a small core of full time
professors augmented by an adjunct faculty who are specialists in their area of practice, by
II
providing a functional physical plant rather than the type of facilities required by the ABA,
by relying on clcctronic research rather than a large library, and by focusing on its faculties’
classroom ability rather than providing extensive time off for research on which the ABA
places extensive emphasis but which most often contributes nothing to the improvement of
society or our profession. MSL has created an admission system that makes law school
accessible to minorities and working-class people by considering all aspects of its applicants’
prior academic background, designing its own entrance examination and refusing to use the
LSAT exam.
AJ3A standards, on the other hand, discourage innovation in legal education,
contribute to the high cost of education, and deny a legal education to all but the most
affluent and traditionally educated applicants.
As examples:
1. Standard 302(f) prohibits any ABA accredited law school from granting credit for
or requiring students to attend the bar examination preparation courses. Bar examination
preparation courses benefit minority students and those from non-traditional educational
backgrounds.
2. Standard 304(c) requires that enrolled students take not fewer than eight credit
hours. 304(t) prohibits a student from engaging in more than 20 hours per week of
employment. And 304(g) prohibits a law school from granting credit for study by
correspondence. All of these restrictions discriminate against low income students.
3 . Standard 402 establishes a preference for full time faculty members over adjunct
faculty members, defines full time faculty to include legal scholarship but to exclude outside
activities other than related to academic interests and then by interpretation establishes
student-teacher ratio requirements that give greater weight to full time faculty members than
adjunct faculty members. This unrealistic, ivory tower approach to legal education drives
up the cost, denies a practical reduction in student-teacher ratios, and worst of all, denies
students the opportunity to study with qualified people who have demonstrated expertise in
their chosen field of law and can communicate a real life perspective to legal issues which
is so essential to success after law school. It’s no wonder that most tenure track faculty and
12
their administrators fully support ABA accreditation as the key to perpetuation of their
monopoly one legal education.
4. Standard 503 requires that law schools credited by the ABA require applicants to
schools accredited by the ABA to take the law school admission test or establish to the
satisfaction of the ABA that the test it is using is acceptable. The LSAT and other
standardized tests developed by national testing services notoriously discriminate against
minorities and others from non-traditional educational backgrounds.
5. Standard 606 establishes extensive but subjective criteria for acceptable law school
libraries and specifically prohibits exclusive reliance on one medium such as electronic or
print. Among the requirements, pursuant to interpretation 606-6, are “(2) . . . one current
annotated code for each state; (3) all published treaties and international agreements of the
United States; (4) all published regulations (codified and uncodified) of the federal
government....” The standards are arbitrary, in some respects unrelated to legal education,
and deny prospective schools the opportunity to provide innovative and effective but less
expensive research opportunities for students.
6 . Standard 70 1 provides general requirements for law schools’ physical facilities but
is extremely subjective and places substantial discretion for approval in the ABA. Some of
this country’s greatest lawyers and jurists studied law in facilities which would never meet
with current ABA approval.
There is no empirical nor other objective evidence that any of these criteria contribute
to the quality of legal education. They are merely arbitrary standards established to
perpetuate traditional notions ofwho should receive a legal education and traditional notions
of full time law faculty who place too much emphasis on producing grain silos full of
worthless legal literature every year and not enough emphasis on quality classroom
education.
Justice Leaphart, in his concurring opinion, refers to statistics submitted by the ABA
in its own defense. There is a reason that self-serving information is not mentioned in this
opinion. First, the statistical changes relied on by the ABA are a result of societal changes
implemented by individual universities. They are not a result of ABA certification. Second,
13
to the cxtcnt they have cvolvcd, it has been in spite ofthc ABA’s ccrtitication process, not
because of it. Finally, unless compared to statistics in the same catcgorics for non-ABA
schools over the same period of time, they are entirely meaningless.
Justice Leaphart’s concurring opinion also touts his education received at the
University of Montana law school - an ABA-certified institution. While his loyalty to his
alma mater is admirable, the fact is that he graduated in 1972, thirty years ago, his
educational experience then is irrelevant to the quality of education being provided there at
this time, and the school that he graduated from would undoubtedly not be certified by the
ABA today for many of the reasons mentioned in this opinion. Furthermore, why the
legislature would give a tinker’s dam whether we required graduation from an ABA-certified
law school as a condition to taking the bar exam is beyond me. We used to allow applicants
to take the bar exam without graduation from any law school and that didn’t seem to bother
the legislature. In fact, the percentage of state funding for the cost of education provided at
the University of Montana law school has dramatically decreased since we made graduation
from an ABA-certified law school a requirement for admission to the practice of law in
Montana.
The majority’s rationale for defaulting from its responsibility to the arbitrary standards
of this national trade organization (which, by the way, doesn’t even include a majority of this
country’s lawyers) is that this Court is simply not in a position to evaluate the qualifications
of every non-accredited school at which an applicant may have been educated. However,
there are alternatives for any court which wants to conscientiously consider access to justice
rather than just appoint committees which give the appearance of some interest. For
example, Massachusetts School of Law has suggested that the non-accredited law schools
themselves could apply for recognition by individual state courts rather than the school’s
graduates, reducing the burden on the court and placing the burden on the schools to
demonstrate that they provide an effective legal education to their graduates. Or, as MSL
suggests, graduates of a school which is not accredited by the ABA could be permitted to
take the state’s bar examination if the school is accredited by a federally recognized regional
accrediting body. Finally, graduates could be allowed to take this state’s bar examination if
14
they arc allowed to take the bar cxlmination in the stotc whcrc the school is located or, in
other words, whcrc the highest court in that state has determined from personal observation
and experience that an adequate legal education is being provided to the school’s graduates.
Apparently, the states of New Hampshire, Maine and Wisconsin have found alternatives to
requiring ABA accreditation. Certainly, in the interest of fairness, the members of this Court
should be no less up to the challenge.
Our justice system is the cornerstone of a free society. Yet justice will never be
available to the great majority of Americans who are among the middle class and poor
because they cannot afford legal services and, due to substantial cuts in government funding,
those legal services which used to be provided by the government for the poor are a token
of what is required. Any solution to this critical problem has to include a radical
reconsideration of traditional legal education in this country. It has to consider who has
access to that education, what skills are essential to the education, how long it takes to
complete the education, and what the necessary cost of that education will be. None of that
is possible based on the arbitrary straight jacket in which the American Bar Association, a
mere professional trade organization, has placed legal education. By its order today, this
Court placates the legal establishment, including the ABA and this country’s traditional law
faculty, but simply postpones the ultimate day ofreckoning which any thoughtful society will
ultimately demand.
For these reasons, I dissent from the majority Order which denies Dana M. Culver
permission to sit for the Montana State Bar examination and be admitted to membership in
the State Bar of Montana should she successfully complete that examination and satisfy the
character and fitness committee of her moral qualifications.
DATED this d a y o f F e b r u a r y , 2 0 0 2 .
7
-
15
Justice Jim Rice dissenting
I respectfully dissent from the Court’s ordci
Culver is a 2000 graduate of the University of West Los Angeles School of Law
(UWLA). Although not accredited by the American Bar Association, UWLA is accredited
by the Western Association of Schools and Colleges (WASC) and is in compliance with the
regulations of the State Bar of California’s Committee of Bar Examiners, thus authorizing
UWLA graduates to sit for the California Bar examination. UWLA Dean Anne E. Arvin
indicates that the WASC standards are rigorous and far-reaching, ensuring educational
effectiveness and institutional integrity in a variety of contexts, including governance, student
support, finances, physical plant, library, information systems and faculty. UWLA hosts
regular on-site visits and complies with extensive reporting requirements.
Culver is a legal assistant to Evonne Smith Wells, who is Montana and Arizona
counsel. Wells reports that Culver is an excellent researcher with a firm grasp on many areas
of the law, and has effectively analyzed cases and drafted pleadings in Wells’ Missoula
office. In addition to commending her legal skills, Wells attests to Culver’s character and
work ethic. Wells further indicates that unforeseeable circumstances that did not exist at the
time Culver entered law school have brought Culver to Montana.
I do not dismiss the ABA’s process of law school accreditation. However, pursuant
to Section VII(A) of the Rules of Admission, I find the circumstances here sufficient to
warrant waiver of Section I(B), and would allow Culver, upon completion of all other
requirements, to sit for the Montana Bar examination.
Justice Patricia 0. Cotter joins in the dissent of
Justice
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Justice Patricia Cotter dissents
I dissent as well.
I agree with Justice Rice that we need not limit our inquiry, when considering
applications such as these, to whether the ABA has accredited the law school from which the
applicant has graduated. I have therefore signed his dissent. However, I also agree with
most of Justice Trieweiler’s comments. I agree in particular with his contention that there
are valid, workable and relatively simple alternatives out there by which we could determine
whether an applicant has received a suitably comprehensive legal education so as to be
qualified to sit for the Montana Bar, without chaining ourselves to the ABA standards.
The ABA standards have arguably served a valuable purpose. However, I simply
don’t believe the ABA should have the comer on defining what constitutes a suitable legal
education for every person who may want to become a Montana lawyer. Nor do I believe
that encouraging the exercise of independent judgment on such matters should in any way
be construed as an invitation to erode support for the University of Montana School of Law.
No one here questions that the University of Montana provides an excellent legal education
to its students. Rather, the point is that there are bright and capable law students out there
who have not had the ability or good fortune to attend such a quality accredited institution.
In my judgment, it is wrong to punish such persons for that misfortune by categorically
excluding them from the privilege of practicing law in this,.state>I therefore dissent.
Justice
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