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Law360 (April 23, 2020, 4:04 PM EDT )
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| Deborah Jones Merritt |
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| Marsha Griggs |
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| Patricia Salkin |
Even February 2021 may be too early for an in-person bar exam. We are unlikely to have a widely available vaccine or cure for COVID-19 by then. Delaying our licensing process until the pandemic is under control, however, would abdicate our profession's responsibility to meet the public's legal needs. The need for legal services, especially among those already suffering from a justice gap, will grow significantly as people face the consequences of the pandemic.
We see six options for maintaining entry to our profession during this crisis. The first one, postponing the July bar exam until September, appeared plausible a month ago. But as the virus continues to spread, and with a second wave of illness predicted for fall, that route seems increasingly unworkable. For most states, it will be impossible to identify in advance a time when a large in-person exam could be safely administered.
A second option, administering the exam in small groups, is also losing appeal.
Although small examination groups might technically satisfy public health orders, a state's supreme court would still be bringing hundreds or thousands of candidates from many locations to a single city. Small groups facilitate contact tracing, but they do not eliminate contagion. The risks of COVID-19 infecting a community are particularly high during a bar exam because candidates, with so much on the line for their own professional futures, may take the exam even if they feel ill or suspect that they have been exposed to the virus. The small-group option also poses significant challenges to administration of the exam and test security.
The third option, moving the exam online and administering it remotely, would offer the least disruption to test-takers and licensing.
Online exams, however, are not identical to paper ones. Some controlled studies suggest that test-takers achieve significantly lower scores online than they do on paper.[2] Partly for that reason, it might not be possible to score an online bar exam on the same scale as the current paper one; that could wreak havoc with jurisdictions' cut scores. Remote administration of an exam adds more burdens: It requires careful planning to assure both exam security and fairness to test-takers.
Perhaps most important, if jurisdictions are going to offer their exams online and remotely, they need to announce that decision very soon. Test-takers will need time to prepare for an exam in a different format than the one they have been prepping for.
Given these obstacles, we encourage jurisdictions to focus on three other alternatives: licensing candidates on an emergency basis through a diploma privilege, "diploma plus" privilege, or supervised practice.
Some commentators have pushed back on these options, urging courts to "hold fast" to the status quo.[3] Precedent, however, is bad policy when conditions change. Sticking to the status quo will not address the looming crisis for this year's graduates, the legal profession, and the public. In addition, there is significant precedent for the options we propose.
Thirty-two states and the District of Columbia have conferred diploma privileges at some point in their history.[4] Wisconsin still uses that type of licensing, with no apparent dissatisfaction from clients or the public. That state limits its privilege to graduates who have satisfactorily completed a core set of courses,[5] and other states could follow that lead. The subjects required by Wisconsin are basic ones taken by most law school graduates. Candidates who missed one or two of those courses might be able to complete them online this summer, possibly at less cost than a bar review course.
An emergency diploma privilege also rests on the common practice, predating the COVID-19 pandemic, of allowing recent law graduates to handle significant client matters before passing a bar exam. States vary in the authority they give unlicensed graduates, but most are quite generous.
New Jersey, for example, allows recent graduates of American Bar Association-accredited law schools to appear before courts and agencies "without attorney supervision if the matter does not involve potential incarceration of a client for more than six months, or a potential monetary award for or against a client of more than $100,000."[6] Those unlicensed graduates must work for organizations that maintain training programs, but the graduates may appear in court on their own. The faith that New Jersey and other states place in recent law school graduates to perform this work suggests that their diplomas carry significant assurance of competence.
Jurisdictions that want additional assurances of competence could adopt a diploma-plus option. States, for example, could confer an emergency diploma privilege on graduates who have passed the Multistate Professional Responsibility Exam; successfully completed clinics, externships, or other types of experiential learning; and/or finished continuing legal education courses on key state-law subjects.
Some critics worry that an emergency diploma privilege would grant "indefinite freedom to practice law without supervision."[7] Wisconsin's privilege does that, but there are other models. A jurisdiction, for example, could grant provisional diploma privileges that initially limit recipients to practice within organizations that include at least one attorney who has been licensed in the state for several years. After a specified time of practice without malpractice or disciplinary complaints, the jurisdiction could remove that restriction.
The graduate practice rules described above also provide precedent for a sixth option: Jurisdictions could confer licenses on graduates who satisfactorily complete a specified period of supervised post-graduate practice. The Utah Supreme Court just adopted this approach, providing that graduates of some ABA-accredited law schools will qualify for licenses after completing 360 hours of supervised practice, passing the Multistate Professional Responsibility Exam, and satisfying admission conditions other than the two-day bar exam.[8]
As the Utah Supreme Court has recognized, the combination of three years of professional education and several months of supervised practice is a very effective way to assess minimum competence. In fact, supervised practice requires skills such as research, fact gathering, and client counseling that are critical for minimum competence but not currently tested on the bar exam.
In the current emergency, diploma privileges, diploma-plus privileges, or licensing through supervised practice would work as well as a written bar exam to establish minimum competence to practice law. None of the alternatives is perfect, but neither is a written bar exam. Pursuing these emergency avenues, moreover, would not sound the death knell of the bar exam.
The National Conference of Bar Examiners and other researchers, including several of us, are already working to update that exam for 21st century practice.[9] But we have to deal with the current crisis — likely to last as long as two years — while also planning for the future.
Some jurisdictions have offered a temporary stopgap: expanding graduate practice rules to allow recent graduates to practice under supervision until a bar exam can be offered. This remedy affords some relief if the exam can be offered in September. Beyond that, however, it will hurt clients more than it helps them — especially the low- and middle-income clients who struggle most to obtain legal assistance.
Our current bar exam does not mesh well with entry-level practice. The exam requires extensive memorization of detailed legal rules, although few new lawyers dare to offer legal advice from memory. It also tests federal rules and general principles that have little relevance to many new lawyers. By 2021, lawyers granted temporary licenses will be immersed in state and local rules, not federal ones. They will also be applying complex environmental, banking, employment, immigration and other statutes that do not appear on the exam at all.
We doubt that any practicing lawyer, no matter how accomplished, could pass the bar exam without retreating from practice for several weeks of study. That certainly will be true of the new lawyers serving clients under temporary licenses. These lawyers will have to withdraw from their representation for up to 10 weeks of intensive bar study in order to pass the exam.
Clients of large firms may not suffer, but those served by small firms, public defenders, legal aid offices and other nonprofits will. New lawyers in those settings quickly take charge of cases and develop close relationships with clients, even while working under supervision. Do we expect those lawyers to tell their clients: "I'm sorry, I can't handle the criminal trial, custody dispute, eviction hearing, or back-pay negotiation we've been preparing for. You'll have to rely on another lawyer because the state isn't sure I'm competent for the work I've been doing for you."
The best way to serve clients in this emergency is to license new lawyers through a diploma privilege, diploma-plus privilege, or completion of supervised practice. Any of those routes would be complemented by a state's usual assessments of character and fitness. Some delays might occur in those investigations, but they should be able to continue by mail, phone or online. Any requirement of supervised practice, notably, would enhance those assessments. That practice will generate additional — and particularly pertinent — information about a candidate's character and fitness to practice law.
Crises are not a time for staying the course. Crises are a time for examining what really matters. Assuring minimum competence, while also providing sufficient lawyers to serve legal needs, is what matters to our profession and the public.
The bar exam is only one way to achieve those dual goals. If we have other effective means for achieving those ends, we have an obligation to adopt them rather than telling clients, employers, and aspiring lawyers, "Sorry, entry to our profession is closed until further notice." Adaptation takes courage and foresight, and we are confident that our courts possess both.
Deborah Jones Merritt is Distinguished University Professor and the John Deaver Drinko/Baker & Hostetler Chair in Law at The Ohio State University's Moritz College of Law.
Marsha Griggs is associate professor of law and director of academic support and bar passage at the Washburn University School of Law.
Patricia E. Salkin is provost of the graduate and professional divisions at Touro College, and professor of law at the college's Jacob D. Fuchsberg Law Center.
The authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of scholars that produced the March policy paper on which this article is based. The authors are continuing to update that information on their Coming Together to Fight a Pandemic website.
Other members of the Collaboratory include Claudia Angelos at New York University School of Law, Mary Lu Bilek at CUNY School of Law, Carol L. Chomsky at University of Minnesota Law School, Andrea A. Curcio at Georgia State University School of Law, Joan W. Howarth at the University of Nevada at Las Vegas' William S. Boyd School of Law and Michigan State University College of Law, Eileen Kaufman at Touro College's Jacob D. Fuchsberg Law Center, and Judith Welch Wegner at the University of North Carolina School of Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.aei.org/wp-content/uploads/2020/03/National-Coronavirus-Response-a-Road-Map-to-Recovering-2.pdf.
[2] https://www.sciencedirect.com/science/article/abs/pii/S0272775718305119.
[3] https://www.law.com/njlawjournal/2020/04/12/even-in-time-of-cri sis-hold-fast-to-bar-exam/.
[4] https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1898&context=faculty-publications.
[5] https://www.wicourts.gov/sc/rules/chap40.pdf.
[6] https://www.njcourts.gov/attorneys/assets/rules/r1-21.pdf.
[7] https://www.law.com/njlawjournal/2020/04/12/even-in-time-of-crisis-hold-fast-to-bar-exam/.
[8] https://www.abajournal.com/files/Signed_2020.04.21_Bar_Waiver_Order_.pdf.
[9] https://testingtaskforce.org/research/; https://iaals.du.edu/projects/building-a-better-bar.
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