Chemerinsky & Mnookin: The Case For Provisional Bar Licenses In The Coronavirus Pandemic

Erwin Chemerinsky (Dean, UC-Berkeley) & Jennifer Mnookin (Dean, UCLA), Making the Case for Provisional Bar Licenses in the Coronavirus Pandemic (National Law Journal):

As some states have already recognized, the July bar exam will almost certainly not take place this summer as scheduled. The best path forward is for states, at a minimum, to accord two-year provisional licenses to practice law to law school graduates, on condition that they practice under the supervision of a licensed attorney.

[T]here’s a straightforward solution: provisional licenses, allowing those who graduated from law school in the last year and who were scheduled to take the July 2020 bar exam, to practice law for a defined — and relatively limited — period, such as until the July 2022 bar exam releases its results. To ensure competence from these new lawyers, there should be a requirement that the individuals be supervised by attorneys who are admitted to the bar. States could, if they wished, limit provisional licenses to those who meet the character and fitness requirements for admission to the bar.

In fact, Arizona and New Jersey have both just announced the possibility of provisional licensing for recent graduates in the wake of the COVID-19 crisis. These approaches are a good start, but they are, in our view, too narrowly defined. Both states envision that provisional licensees would generally need to take the next available bar exam or lose their limited license. Far better, in the wake of this crisis, to permit these provisional licenses for a longer period such as two years. That would permit these graduates to launch their careers and allow them a reasonable degree of agency and control over when it makes professional and logistical sense to study for and take the bar.

To be clear, this is not a “diploma privilege” designed to provide permanent admission to the bar, an approach currently taken in Wisconsin for those who graduate from law schools in that state. We recognize that may work well in some jurisdictions, but we think it’s not likely to be a workable answer for such states as New York and California. Some jurisdictions might be well served by taking this opportunity to rethink the bar exam in more significant ways, or by providing a pathway to permanent licensure for this summer’s graduates that does not require eventually sitting for the traditional bar. What we propose is a minimum appropriate response to an unprecedented global public health crisis. ...

This temporary licensing approach does not depend on knowing how long this public health crisis will last, nor precisely when the traditional bar exam may again be practicable. It permits law graduates to begin their careers without delay. It gives licensing authorities the ability to think about potentially moving the bar exam online, or to undertake other more substantive forms of bar-exam revamping, in a less hurried manner, and it prevents licensure issues from becoming another bump on the road to economic recovery.

Since each state administers its own bar and makes the rules for admission, each will decide for itself what to do about the July 2020 bar exam, usually in a decision by the state’s highest court. In light of the uncertain nature and length of this public health emergency, we urge states to reject the tempting but poorly considered option of postponing for an early fall date and then hoping for the best. Provisional licensing is a far better bet, both for our students and to help provide much-needed additional resources to those who need legal assistance.

TaxProf Blog coverage of the July 2020 bar exam:

• The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action (Mar. 14, 2020)
• NCBE To Decide By May 5 Whether It Will Provide MBE For July Bar Examinations (Mar. 27, 2020)
• New York Postpones July Bar Exam To Fall; Students Demand Emergency Diploma Privilege To Practice Law (Mar. 28, 2020)
• Massachusetts Joins New York In Postponing July Bar Exam (Mar. 30, 2020)
• Connecticut Is Third State To Postpone July Bar Exam (Mar. 31, 2020)
• Hawaii Is Fourth State To Postpone July Bar Exam (Apr. 2, 2020)
• New Jersey Is Fifth State To Postpone July Bar Exam, First To Offer 2020 Law Grads Temporary License To Practice (Apr. 7, 2020)
• July Bar Exam Update: ABA, Arizona, California, Florida, Tennessee, Vermont (Apr. 8, 2020)

For complete TaxProf Blog coverage of the coronavirus, see here.