In re Anthony

1 The rules governing admission require that attorney
applicants graduate from an “approved law school,” Utah Sup. Ct.
R. Prof’l Practice 14-704(a)(3), which is defined as one either
fully or provisionally accredited by the ABA, id. R. 14-701(e).
2010 UT 3
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the Matter of the Petition of 	No. 20090576
Thomas E. Anthony.
F I L E D
February 2, 2010
---
Original Proceeding in this Court
Attorneys: 	Richard D. Bradford, M. James Brady, Provo, for
petitioner
Steven T. Waterman, Katherine A. Fox, Salt Lake City,
for Utah State Bar
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Thomas E. Anthony petitions this court for
extraordinary relief seeking waiver of rule 14-704(a)(3) of the
Rules Governing the Utah State Bar, which requires that attorney
applicants to the Utah Bar must have graduated from a law school
accredited by the American Bar Association (“ABA”). 1 	We grant
Mr. Anthony’s request for waiver and refer to the Bar and to our
rules committee the issue of waiver of the rules governing
admission so that they may propose standards and procedures that
will govern similar requests for waiver in the future.

2 Utah Sup. Ct. R. Prof’l Practice 14-704(a)(3).
3 Id. R. 14-701(e).
No. 20090576 	2
BACKGROUND
¶2 	Mr. Anthony graduated from Western State University in
1980. 	At the time of his graduation, Western State was
accredited by the California State Bar, but not by the ABA.
Before committing to attend law school at Western State, Mr.
Anthony contacted the Utah Bar to determine his eligibility for
admission as a graduate of Western State. 	The Bar informed him
that he would be allowed to sit for the Utah bar examination if
he graduated from Western State, provided that he passed the
California bar examination and practiced law in California for at
least five years. 	Mr. Anthony subsequently graduated from
Western State and was admitted to the California State Bar in
1980.
¶3 	In 1988, Mr. Anthony applied for admission to the Utah
Bar and was authorized by the Bar to sit for Utah’s 1989 attorney
exam. 	But for an unknown reason, he did not appear for the exam
and was marked as a “no show.” 	Rather than continuing to seek
admission in Utah, Mr. Anthony continued practicing law in
California.
¶4 	On July 11, 2003, the Bar filed a petition to amend the
rules governing admission. 	Among the amendments was an addition
to the rule governing admission of attorney applicants. 	The
version of the rule in effect prior to the amendment allowed an
attorney applicant to sit for the Utah bar exam if the applicant
had been admitted to practice in another state and had actively
practiced law for four out of the five years preceding
application. 	While the proposed revision to our attorney
applicant rule retained the requirement that an attorney
applicant must have practiced law for a requisite period of time,
it added the requirement that an attorney applicant must have
graduated from an “approved law school” to sit for the Utah bar
exam. 2 	The proposed revision defined an “approved law school” as
one fully or provisionally accredited by the ABA. 3 	We adopted
the revision in September of 2003, and the approved law school
requirement was codified as rule 14-704(a)(3) of the Utah Supreme
Court Rules of Professional Practice.
¶5 	In the fall of 2008, Mr. Anthony moved to Provo, Utah,
to care for his ailing mother. 	Upon arriving in Utah, he
associated with a local law firm as a clerk and prepared to seek
admission to the Utah Bar. 	But when Mr. Anthony contacted the

4 See id. R. 14-704(f).
5 Utah R. App. P. 19.
6 Utah R. Civ. P. 65B(a).
3 	No. 20090576
Bar regarding admission, he was informed that he was ineligible
to sit for the Utah bar exam because he had not graduated from an
ABA-accredited law school.
¶6 	Mr. Anthony nonetheless submitted his application to
sit for the July 2009 attorney bar exam. 	Consistent with its
prior position, the Bar rejected his application and formally
notified Mr. Anthony that his application had been denied for
failure to satisfy the requirements of rule 14-704(a)(3).
¶7 	After receiving notification of his rejection from the
Bar, Mr. Anthony requested additional information. 	The Bar
informed Mr. Anthony that, although it was unable to waive any
admissions requirements under rule 14-702(f), rule 14-709
provided the appropriate appeals process. 4 	Rather than pursue
the Bar’s appeals process, Mr. Anthony filed a petition for a
writ of extraordinary relief with this court. 	We have
jurisdiction pursuant to section 78A-3-102(2) of the Utah Code.
ANALYSIS
¶8 	We begin by analyzing the threshold question of whether
Mr. Anthony is entitled to seek extraordinary relief.
Determining that he is, we conclude by addressing the merits of
his claim for waiver.
I. 	EXTRAORDINARY RELIEF IS APPROPRIATE IN THIS CASE BECAUSE MR.
ANTHONY LACKS AN ADEQUATE ALTERNATIVE REMEDY
¶9 	Mr. Anthony’s claim for extraordinary relief is brought
pursuant to rule 19(a) of the Utah Rules of Appellate Procedure,
which sets out the procedure for obtaining, from an appellate
court, the extraordinary relief provided for in rule 65B of the
Utah Rules of Civil Procedure. 5 	Rule 65B authorizes a person, in
certain defined circumstances, to petition a court for
extraordinary relief when “no other plain, speedy and adequate
remedy is available.” 6 	In this case, the Bar argues that Mr.
Anthony is not entitled to extraordinary relief because the
appeals process set forth in rule 14-709 of the rules governing
admission constitutes a plain, speedy, and adequate remedy that
Mr. Anthony is first required to pursue.

7 Utah Const. art. 8, § 4 (“The Supreme Court by rule shall
govern the practice of law, including admission to practice law
and the conduct and discipline of persons admitted to practice
law.”).
8 See Utah Sup. Ct. R. Prof’l Practice 14-702(f) (“Neither
the Bar nor its representatives has authority to waive any rule.
Waiver of any rule may only be obtained by petitioning the
Supreme Court.”).
9 See id. R. 14-709.
No. 20090576 	4
¶10 	Mr. Anthony responds by arguing that the appeals
process is not an adequate remedy because it is futile given the
Bar’s admitted inability to waive the ABA accreditation
requirement. 	Because Mr. Anthony does not dispute that rule 14-
704(a)(3) prohibits him from sitting for the Bar exam, but
instead simply seeks a waiver of the requirement that the rules
governing admission do not authorize the Bar to grant, he
contends he should not have to pursue a burdensome and
unnecessary appeal.
¶11 	We agree with Mr. Anthony. 	The Utah Constitution
imposes on this court the duty, and grants it the concomitant
authority, to govern the practice of law within the state of
Utah. 7 	Thus, as a matter of constitutional law, authority over
admissions in this state remains with this court unless it has
been delegated away. 	And our own rules make clear that we have
not yet delegated the right to waive admissions requirements. 8
¶12 	Because the authority to waive one of our admissions
rules rests solely with this court, the Bar’s appeals process is
clearly futile for an applicant seeking only the waiver of a
rule. 	Our standard for obtaining extraordinary relief does not
require a petitioner to pursue a futile appeals process solely as
a matter of form. 	We hold that Mr. Anthony is entitled to seek a
waiver from this court even though he did not complete the
appeals process normally required by the rules. 9 	Accordingly, we
now turn to the merits of Mr. Anthony’s request for waiver.
II. 	WE WAIVE THE ABA ACCREDITATION REQUIREMENT IN MR. ANTHONY’S
CASE
¶13 	Mr. Anthony contends that we should grant him a waiver
of the ABA accreditation requirement because it would be unfair
to apply our amended rule to him retroactively and because it is
irrational, given his extensive experience as a practicing
attorney, to judge his fitness to practice law solely on the

10 See, e.g., In re Fox, 2004 UT 20, 89 P.3d 127 (upholding
ABA accreditation requirement against constitutional challenge);
In re Gobelman, 2001 UT 72, 31 P.3d 535 (denying waiver of the
five-year practice requirement).
11 See In re Gobelman, 2001 UT 72, ¶¶ 8-9.
5 	No. 20090576
basis of where he graduated from law school. 	Although he
acknowledges the relevance of an attorney’s law school education
to admission decisions generally, he argues that, at some point
in an attorney’s career, “the law school experience fade[s] into
insignificance and become[s] irrelevant in determining” an
individual’s competency to practice law. 	And in his case, Mr.
Anthony asserts that we should consider his long record of
zealous and competent representation rather than making the
decision solely based on his educational qualifications.
¶14 	The Bar argues that rule 14-704(a)(3) is not being
applied retroactively because Mr. Anthony “is, in fact, a new
applicant, not an old applicant whose approval was placed in
abeyance in the event he decided to apply again at an unspecified
future date.” 	In addition, the Bar responds to Mr. Anthony’s
claim that his special circumstances justify waiver by pointing
to our prior case law denying waivers of admission requirements--
including the ABA accreditation requirement--in the past. 10 	The
Bar contends that, if we grant a waiver to Mr. Anthony based on
his unique circumstances, we would encourage a deluge of
petitions for waiver, forcing this court into a burdensome case-
by-case evaluation of the merits of numerous unsuccessful
applicants.
¶15 	This court has no desire to encourage a flood of
individualized waiver petitions. 	But as we have noted in the
past, the purpose of our admission requirements is to protect the
citizens of Utah by ensuring, to the best of our ability, that
the people of this state may rely on admitted attorneys for
competent and ethical representation. 11 	While the rules
governing admission stand as important safeguards against
incompetent and unethical representation, strict adherence to the
rules in every case may undermine, rather than further, these
goals. 	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 rules may be
waived in appropriate cases. 	This is evidenced by the language

12 	Utah Sup. Ct. R. Prof’l Practice 14-702(f).
No. 20090576 	6
concerning waiver of the admissions rules found in rule 14-
702(f). 12
¶16 	Accordingly, we now make clear that a waiver of the
Bar’s ABA accreditation requirement may be obtained in an
appropriate case. 	While we decline to set out any specific
standard for evaluating petitions for waiver, we find that where
an attorney has actively practiced law, without blemish, for
nearly thirty years and comes highly recommended by judges,
clients, and fellow attorneys, waiver of the ABA accreditation
requirement is appropriate. 	We therefore grant Mr. Anthony’s
petition for waiver of rule 14-704(a)(3).
¶17 	We recognize the validity of the Bar’s concerns
regarding the potential administrative burdens resulting from
case-by-case analysis of requests for waiver. 	Nevertheless, we
are confident that these burdens can be sufficiently mitigated by
the revision of our rules to provide for the judicious delegation
of authority and development of standards and procedures that
provide guidance to both applicants and the Bar. 	Accordingly, we
take this opportunity to refer to the Bar and our rules committee
the issue of waiver of the rules governing admission and instruct
them to begin the process of proposing changes to the rules
governing admission under which the Bar would be given authority
to waive the ABA accreditation requirement subject to
discretionary review by this court.
CONCLUSION
¶18 	We conclude that Mr. Anthony is entitled to petition
this court for extraordinary relief because the normal appeals
process would be futile. 	We also grant his petition for waiver
of the ABA accreditation requirement because his long record of
successful practice clearly demonstrates his competency to
practice law in Utah. 	Mr. Anthony is therefore eligible to sit
for the bar exam assuming he can satisfy all the other relevant
admissions requirements. 	Finally, we instruct the Bar and our
rules committee to begin work toward revising the rules to
provide standards and procedures for applicants seeking waiver of
specific admissions requirements and to grant the Bar authority
to make such waivers.
---

7 	No. 20090576
¶19 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.