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Law360 (May 22, 2020, 6:00 PM EDT ) The American Bar Association's call to extend limited practice privileges to law school graduates facing a delayed bar exam due to COVID-19 has prompted concerns that social distancing will sabotage the very initiative it prompted, given the intense supervision required as part of the plan.
The orders by states that embraced the ABA's advice come with the caveat that the graduates must only practice under the oversight of seasoned attorneys, yet the irony is that the new work-from-home normal forced by the virus will limit the ability of experienced attorneys to oversee the aspiring ones.
"So much of the effective supervision of young lawyers takes place through in-person conversations and editing of their work in a hands-on way. All of that is harder to do remotely," attorney Nicole Gueron of Clarick Gueron Reisbaum in New York City told Law360.
The attorneys who spoke to Law360 made clear that allowing hands-on legal industry experience has myriad benefits and could be a career test superior to the actual bar exam. New Jersey and Tennessee were among the first states to issue limited practice orders, in which the graduates typically must work under attorneys with a minimum number of years of practice, must pass a character fitness test and must apply to take the next available bar exam.
It gives the aspiring lawyers a leg up on basic research, document review and even brief writing, according to Gueron, who questions whether the bar exam is still the best filtering mechanism of who should and shouldn't practice law.
"I can't think of a single research question where the answer to the question was that, 'Oh, yeah I know that because I took the bar,'" Gueron said.
Rutgers University law professor Victoria Chase has already taken on supervising future attorneys in the field as the director of the New Jersey school's Camden-based Domestic Violence Clinic. Through the clinic, third-year law students represent abuse survivors in the state's Superior Court and Appellate Division, practicing under Chase's license.
Chase considers the program a godsend for legal areas rife with self-represented litigants navigating child support, landlord-tenant and domestic violence cases, and the volume of those types of matters is increasing as the pandemic unfolds.
Generally speaking, Chase said allowing limited practice for pre-bar exam graduates is also a great opportunity for those in private practice internships to start making money, given the lag in time between the bar exam usually held in July and the receipt of test results.
However, the supervision element of mentoring is a time-intensive process, noted Chase, who thinks working online slows task completion.
"This may reduce the interest in taking on supervising another attorney," Chase said.
There likely isn't a "magic formula" to remote supervision beyond time and effort, according to Gueron. She predicts it will entail one-on-one editing and mentoring calls, among other things.
Another irony is that graduates wanting to take advantage of practicing right away are facing greatly reduced opportunities to do so, given that coronavirus-prompted cutbacks have included staff reductions and hiring freezes at law firms of all sizes. Jean McElroy, chief regulatory counsel for the Washington State Bar Association, wonders how many new graduates had jobs lined up before the pandemic and if those jobs are now kaput.
Like Chase, McElroy is no stranger to the concept of pre-bar exam mentoring. Even before the pandemic, Washington state's Admission and Practice Rule 9 granted a limited license to law students, clerks and recent law school graduates
McElroy suspects that the coronavirus, in addition to sabotaging new positions in private practice, could hit the public and nonprofit sectors as well.
"Currently, many Rule 9 interns work in public defender, prosecutor, legal aid, or other public-law-related offices like that, but I don't know whether that will continue to be the case with the current situation," McElroy said.
--Editing by Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.
