Horwitz: Law Graduates' Needs, Client Needs, And The Bar Exam

Paul Horwitz (Alabama), New Law Graduates' Needs, New Client Service Needs, and the Bar Exam: Three Problems That Needn't Have One Solution:

[W[e really have three issues that are being addressed at the same time, and that are often combined (and sometimes jumbled together): 1) What to do about current law graduates given delays or other problems with the bar exam? 2) What to do about clients who require legal services that are related to the current crisis, or whose access to legal services is being affected by the current crisis? 3) What to do about the bar exam generally?

There are excellent strategic reasons to combine all three issues. They are in the spirit of never wanting to waste a crisis, or at least in the spirit of making the argument that is most affective, most persuasive, and likeliest to silence doubt or questions and encourage a bandwagon effect. The problem with combining them is the potential loss of the soundest, clearest thinking and the wisest short- and long-term solutions. For those who are deeply concerned by the needs of law graduates or clients, or who have long been advocating changes and see a sudden road opening up that will give their arguments traction and light a fire under the feet of institutions accustomed to delay, that may seem like a trivial cost. But it does not necessarily lead to the best solution for each individual problem--only the fastest one. And in the longer run, if it turns out that the assumptions about problem A that are used to argue for a solution to problem B are unsound, it may undermine trust in either the solution or the expertise and authority of those who argued for it. That is not a great problem in itself, both because experts are rarely punished for being wrong and because if these particular experts are discredited, others will come along. The greater problem is that it will undermine trust in expertise and authority even when they are merited and properly wielded, and despite the societal value of having trust in expert knowledge and institutions.

I try to separate the three questions in what follows. ...

[T]o solve the problem of client needs, we should be asking first and only what is best for those clients. I should think that would involve first trying to connect them to lawyers with the most experience--or any experience--in practicing law. That may or may not be of help to current law graduates and may or may not have anything to do with the bar exam. But those, I repeat, are separate questions. ...

I think those states and advocates that have focused on supervised practice have taken the best available approach to the specific problem of what to do about current law graduates in this unique situation--as distinguished, I emphasize again, from the separate questions of what to do about client needs in the current situation and what to do about the bar exam in the short or long term. This is a provisional conclusion and subject to correction and innovation. Others have no doubt thought about the issue more, and more expertly, than I have. And someone might yet come up with a different idea than those that have been most popular or prominent so far. It may well be that a supervised practice approach would not be a universal solution to students' desire to practice law or their financial needs. But it seems the best available approach, given the necessary professional and ethical constraint of putting clients' interests first.  ...

That leaves the longer-term fate of the bar exam. I would not be sorry to see it (or the current version of it, at least) disappear. I would be sorry to see it disappear without due thought for what needs to be done to ensure the proper education, training, and certification of legal professionals. And I would be sorry to see the question of what ought to be done to ensure access to legal services at this moment, and to ensure the fair and humane treatment of current law school graduates at this moment, confused or conflated with a much broader and longer-term policy question. ...

These are all interesting questions and prospects, and in many cases perhaps attractive ones. But they are obviously complex. I defer to those who have studied them at greater length and with more expert qualifications. But it does not take any expertise to realize that they are complex, and that they are separate questions. They are related, to be sure. They may be connected. But how connected they are depends in large measure on what is needed in each case. That they can be connected does not mean they must be connected.

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)
• Indiana Allows 2020 Law Grads To Serve As Graduate Legal Interns And Take February 2021 Bar Exam (Apr. 9, 2020)
• Utah To Let Grads Skip Bar Exam Due To COVID-19, But Only From Schools With 86%+ Bar Pass Rate; Grads Of Just 4 Of California's 21 Law Schools Would Qualify (Apr. 11, 2020)
• Licensing Lawyers In A Pandemic: Proving Competence (Apr. 12, 2020)
• Even In Time Of Crisis, Hold Fast To Bar Exam (Apr. 13, 2020)
• Bar Exam Federalism During The COVID-19 Pandemic (Apr. 14, 2020)
• State Bar Tells California Supreme Court: Delay Or Cancel July Bar Exam (Apr. 15, 2020)
• July Bar Exam Update: Maine, Rhode Island (Apr. 16, 2020)
• Letter From California State Bar To California Supreme Court On July Bar Exam (Apr. 17, 2020)
• July Bar Exam Update: Georgia, Tennessee, Virgin Islands (Apr. 18, 2020)
• Letter From California Deans To California Supreme Court On July Bar Exam (Apr. 18, 2020)

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