Paul L. Caron

Friday, April 24, 2020

Courts Should Look To Three Bar Exam Alternatives During Crisis

Law360 op-ed:  Courts Should Look To 3 Bar Exam Alternatives During Crisis, by Deborah Jones Merritt (Ohio State), Marsha Griggs (Washburn) & Patricia Salkin (Touro):

Coronavirus[W]e encourage jurisdictions to focus on three other alternatives: licensing candidates on an emergency basis through a diploma privilege, “diploma plus” privilege, or supervised practice.

Thirty-two states and the District of Columbia have conferred diploma privileges at some point in their history. 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, 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. ...

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. ...

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.

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 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.

TaxProf Blog coverage of the July 2020 bar exam:

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

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