Court win for online law school grad

By Kristina Horton Flaherty
Staff Writer

When Ross Mitchell graduated from the nation’s first online-only law school four years ago, he knew that the school’s lack of American Bar Association (ABA) approval would disqualify him from taking the Massachusetts bar examination.

But he sought permission anyway, taking his case all the way to the state’s Supreme Judicial Court — and, in November, he got it.

“Hopefully, before too long, there will be a less laborious way, a less time-consuming way, for someone in my position to come into Massachusetts and take the bar exam here,” said Mitchell, 56, a 2004 graduate of Los Angeles-based Concord Law School.

Unlike California, most other states require graduation from an ABA-approved law school — at least for U.S.-trained applicants — to sit for the bar exam. Online-only law schools cannot, however, qualify for ABA approval under current ABA standards.

In its Nov. 20 ruling, the Massachusetts high court did not address Mitchell’s equal protection arguments and Associate Justice Margot Botsford stressed that the ruling applied only to Mitchell’s particular case.

The court, with one dissenting opinion, waived the law school accreditation requirement in Mitchell’s case for two reasons. The first focused on Mitchell’s individual record. An outstanding law student, he passed the California bar exam on his first try and got a high score on the professional responsibility exam. And, representing himself, he “filed briefs and gave an oral argument in this court that were of commendable quality, providing us with a concrete and positive illustration of his skills in legal analysis, legal writing and advocacy,” Botsford wrote.

But a recently launched review of the ABA’s approval standards influenced the court as well. “As the comprehensive review begins, we have no way of knowing or predicting what recommendations, if any, will be forthcoming in relation to online legal education programs or methodologies,” Botsford wrote. But she noted that “the situation with respect to online programs may change in the reasonably near future.”

Mitchell, a longtime computer consultant from West Newton, Mass., originally chose to study at Concord because he could juggle his online studies with his work schedule and business travel. After passing the California bar exam, he wrote to the chair of the Massachusetts Board of Bar Examiners and, later, the Supreme Judicial Court’s rules committee, seeking permission to take the state’s bar exam.

His early requests were denied but a working group was appointed to consider his request for a change in the state’s ABA-approval rule. The group did not recommend a rule change but asked the ABA “to give attention to the issue of distance learning, with a view towards incorporating online methodologies into the [ABA’s] Standards for Approval of Law Schools,” Botsford noted.

In 10 years, Concord Law School has grown from 33 students to roughly 1,500. Mitchell’s was the first case in which a Concord graduate won the right to take a state bar exam by filing suit and appearing before that state’s Supreme Court. Others have received special waivers allowing them to sit for the bar in half a dozen other states.

Some in the legal community continue to argue, however, that the in-person interaction on campus and in the classroom are particularly crucial to a law school education.

Mitchell, who is studying to take the Massachusetts’ bar exam in February, said he believes the world will eventually “catch up” to Concord and open the accreditation process to such schools. “It’s not a question of ‘if,’” he says, “it’s a question of ‘when.’”