Licensing Lawyers In A Pandemic: Proving Competence

Following up on my previous post, The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action:  Claudia Angelos (NYU), Mary Lu Bilek (CUNY), Carol Chomsky (Minnesota), Andrea Anne Curcio (Georgia State), Marsha Griggs (Washburn), Joan Howarth (UNLV; Michigan State), Eileen Kaufman (Touro), Deborah Merritt (Ohio State), Patricia Salkin (Touro) & Judith Wegner (North Carolina), Licensing Lawyers in a Pandemic: Proving Competence, Harv. L. Rev. Blog (Apr. 7, 2020):

COVID-19 has temporarily halted administration of the legal profession’s high-stakes test to predict competence. Several states are now considering an option that would allow law graduates to practice under a licensed lawyer’s supervision while they wait for testing to resume. This supervised practice would give graduates a welcome chance to gain interim employment, but so far courts have not suggested that supervised practice would excuse graduates from taking a bar exam. No matter how many months of supervised practice they complete, or the number of clients they competently serve, graduates will still have to take that high-stakes exam. Why?

Admitting graduates directly into practice, without an intervening test, may make some uneasy—although Wisconsin has done this for decades. Courts may not trust law professors to candidly assess their own students; we might give some students a pass when they should have failed. Courts might also distrust supervisors’ honesty, some of whom might offer a glowing review when it’s not merited. But do we distrust both systems working together? Put it this way: Suppose you retain a small law firm to handle your contested divorce. You can’t afford the senior partner’s hourly rate so the partner offers you a choice of two junior associates: The first graduated from an accredited law school, passed the two-day written bar exam, and just started at the firm. The second graduated from an accredited law school, was excused from taking the bar exam, and has spent three months at the firm, competently drafting documents, counseling clients, and appearing in court. Which junior lawyer would you choose?

Perhaps your faith in high-stakes exams is so deep that you would choose the first lawyer. But if you have any experience in law practice, you will choose the one who has proved their competence on the job – the one who has used their knowledge, skills, and judgment to solve client problems directly. The combined wisdom of professional education with on-the-job experience is much deeper than any written exam can test. Most lawyers recognize this truth early in their careers, after discovering how little the current bar exam corresponds to their practice.

Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence. For the future, we might find a range of ways to prove competence, rather than resting on the predictions of a written exam.

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)

TaxProf Blog coronavirus coverage:

• Evacuated From Wuhan, Law Prof Works On Her Law Review Article During 14-Day Mandatory Coronavirus Quarantine (Feb. 11, 2020)
• Mitchell Hamline To Train Peking Faculty To Deliver Online Legal Instruction To Replace Classes Cancelled Due To Coronavirus (Feb. 24, 2020)
• First Law School Closes Due To Coronavirus; Student At Second Law School Self-Quarantines Due To Exposure (Mar. 4, 2020)
• New York Law Student In Self-Quarantine After Exposure To Coronavirus (Mar. 4, 2020)
• Stanford, University Of Washington Cancel In-Person Classes (But Not Athletic Events), Students To Complete Courses And Exams On-Line; Duke Warns It May Be Forced To Do The Same After Spring Break (Mar. 7, 2020)
• The Impact Of COVID-19 On Legal Education (Mar. 8, 2020)
• Law Schools Shift Classes Online Amid COVID-19, But Can They Do It Successfully? (Mar. 11, 2020)
• ABA Loosens Reins On Online Legal Education Amid Coronavirus Spread (Mar. 13, 2020)
• COVID-19 And The Future Of The Academy (Mar. 13, 2019)
• Fair Use And Emergency Remote Teaching And Research (Mar. 15, 2020)
• Law Teaching In The Age Of Coronavirus (Mar. 15, 2020)
• Michael Hunter Schwartz (Dean, McGeorge), Towards A Modality-Less Model For Excellence In Law School Teaching (Mar. 16, 2020)
• Larry Cunningham (Associate Dean, St. John's), Cunningham: Assessment In A Time Of Coronavirus And Closed Campuses (Mar. 16, 2020)
• Coronavirus And The Great Online-Learning Experiment (Mar. 17, 2020)
• Academe’s Coronavirus Shock Doctrine: 'Faculty Should Hesitate Before Doing More' (Mar. 17, 2020)
• 100% Of Law Schools Have Moved Online Due To The Coronavirus (Mar. 18, 2020)
• Regulating In A Pandemic: Evaluating Economic And Financial Policy Responses To The Coronavirus Crisis (Mar. 18, 2020)
• March LSAT Is Canceled, Fate Of April Test Is Uncertain (Mar. 18, 2020)
• I Will Survive (Coronavirus Version For Law Professors Teaching Online) (Mar. 18, 2020)
• WSJ: Tax Law Changes Make Life Harder For Firms Facing Coronavirus Losses (Mar. 19, 2020)
• Law Schools Adopt Pass-Fail Grades As They Move Online Amid COVID-19 (Mar. 19, 2020)
• 30-Minute Webinar On Using Zoom For Law School Classes (Mar. 19, 2020)
• Tax Options For Economic Relief During The Coronavirus Crisis (Mar. 20, 2020)
• 13-Minute Video On Tips For Law Professors Teaching Online (Mar. 20, 2020)
• Weekly SSRN Tax Article Review And Roundup: Layser Reviews Evaluating Economic And Financial Policy Responses To The Coronavirus (Mar. 20, 2020)
• The Law Student Coronavirus Survival Guide (Mar. 21, 2020)
• C.S. Lewis: Studying Law In The Age Of Coronavirus (Mar. 22, 2020)
• NY Times: The Christian Response To The Coronavirus — Stay Home (Mar. 22, 2020)
• Moody's Downgrades Higher Education From 'Stable' To 'Negative' Due To The Coronavirus (Mar. 23, 2020)
• Adler: Grading In The Time Of Coronavirus — For Most Law Schools, Pass/Fail Is A Mistake (Mar. 23, 2020)
• Blackman: Law Schools Should Not Abandon Standard Grading Policies For All Students Due To The Coronavirus (Mar. 23, 2020)
• Free Online Content: Business Taxation/Subchapter K (Mar. 23, 2020)
• NALP Cannot Compel Law Firms To Move OCI To January, But Urges Communication About COVID-Related Changes (Mar. 24, 2020)
• The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action (Mar. 24, 2020)
• Symphony In The Age Of Coronavirus (Mar. 24, 2020)
• Hillary Clinton, 880,000 Others Have Viewed Arkansas Law Prof's Online Crim Pro Lecture (Mar. 24, 2020)
• 2019 Summer Associate Offers (98%) Hit All-Time High, But Coronavirus Casts Shadow Over 2020 Summer Programs (Mar. 25, 2020)
• Blackman: Law Professors Quietly Oppose Pass/Fail Grading (Mar. 25, 2020)
• 100% Of Higher Education Has Shifted Online Due To The Coronavirus (Mar. 25, 2020)
• Assessment In Online Law School Classes (Mar. 25, 2020)
• Test-At-Home Option During Coronavirus May Be Attractive To Applicants At 50+ Law Schools That Accept The GRE (Mar. 25, 2020)
• 'People Are Pissed': Pass/Fail Grading Controversy Roils Law Schools (Mar. 26, 2020)
• The New Normal At Pepperdine Caruso Law Online (Mar. 26, 2020)
• Blackman: Law Students Quietly Oppose Pass/Fail Grading (Mar. 26, 2020)
• Status Of July Bar Exam, August MPRE Exam (Mar. 26, 2020)
• Law Professor, Law Student Diagnosed With COVID-19 (Mar. 26, 2020)
• Law Students Share Anxiety, Support On Reddit Over Grading Policies In Wake Of Coronavirus (Mar. 27, 2020)
• NCBE To Decide By May 5 Whether It Will Provide MBE For July Bar Examinations (Mar. 27, 2020)
• Neil Diamond's Sweet Caroline For The Age Of The Coronavirus: 'Hands ... Washing Hands' (Mar. 28, 2020)
• Zatz: The Case For Mandatory Pass/Fail Grading In Spring 2020 (Mar. 28, 2020)
• Muller: Thoughts About (And Mostly Against) Pass-Fail Law School Grading During Covid-19 (Mar. 29, 2020)
• Krauss: Should Law Schools Grade Pass-Fail This Semester? (Mar. 29, 2020)
• Klein: Prisoner's Dilemmas And Straw Men: A Response To Blackman, Adler, And Krauss On Law School Grading (Mar. 29, 2020)
• Zatz: Crisis Grading Policy 2.0 — Universality Over Carve-Outs (Mar. 29, 2020)
• University Of Chicago Law School Sticks To ‘Status Quo’ Grading, Bucking Peers’ Move To Mandatory Pass-Fail (Mar. 30, 2020)
• Massachusetts Joins New York In Postponing July Bar Exam (Mar. 30, 2020)
• Spivey: How Will COVID-19 Impact Law Schools? (Mar. 30, 2020)
• A Tax Prof's Day In Covid-19 America Without Child Care (Mar. 30, 2020)
• Class Action Lawsuit Filed Against Arizona Board Of Regents Demanding Repayment Of Room & Board For Students Displaced By Covid-19 (Mar. 31, 2020)
• A Third Of MBA Admits May Defer; 43% Want Tuition Lowered If Classes Are Online (Mar. 31, 2020)
• Connecticut Is Third State To Postpone July Bar Exam (Mar. 31, 2020)
• Amid More Bar Exam Delays, Push For Diploma Privilege Grows (Mar. 31, 2020)
• AccessLex Donates $25,000 To Student Emergency Funds At All 200 Law Schools (Mar. 31, 2020)
• Law Schools' Pass/Fail Decision Doesn't Ace All Tests (Apr. 1, 2020)
• With Pass/Fail Now The Norm, Outlier Law Schools Face Student Backlash (Apr. 1, 2020)
• Hawaii Is Fourth State To Postpone July Bar Exam (Apr. 2, 2020)
• ‘A Decidedly Suboptimal Set of Circumstances’: Harvard Law Profs Evaluate Online Instruction (Apr. 2, 2020)
• Pepperdine Provides Covid-19 Legal Resources For Those In Need (Apr. 2, 2020)
• Legal Internships In The Administrative State During The Covid-19 Summer Of 2020 (Apr. 3, 2020)
• 'Nobody Is Recruiting Over The Summer': OCI Season Postponed (Apr. 3, 2020)
• My Daughter, My Hero (Apr. 3, 2020)
• During COVID-19 Pandemic, Harvard Law School's 46 Clinics Continue To Virtually Serve Clients (Apr. 4, 2020)
• Covid-19 Was A Leadership Test. It Came Back Negative. (Apr. 4, 2020)
• Deans, Law Students, Task Force Weigh In On New York Bar Exam (Apr. 5, 2020)
• Pepperdine Caruso Law School Dinner (Social Distancing Edition) (Apr. 5, 2020)
• The Law School Class Of 2020 Should Not Be Subjected To A Prolonged 'Professional Coma' (Apr. 5, 2020)
• NCBE Sets Two Dates For Fall Bar Exams As Alternatives To July: Sept. 9-10, Sept. 30-Oct. 1 (Apr. 5, 2020)
• Deans, Law Students Weigh In On California Bar Exam (Apr. 6, 2020)
• Law Students In The Age Of Coronavirus (Apr. 6, 2020)
• Over 200 Law Profs Petition For Diploma Privilege For 2020 Grads (Apr. 7, 2020)
• All Of The Top 20 Law Schools Are Now Giving Mandatory Pass/Fail Grades This Semester After Reversals By Chicago, Georgetown, And Michigan (Apr. 7, 2020)
• New Jersey Is Fifth State To Postpone July Bar Exam, First To Offer 2020 Law Grads Temporary License To Practice (Apr. 7, 2020)
• NY Times: One Final Step For 52 Medical Students, Eager To Join The Fight Against COVID-19 (Apr. 7, 2020)
• LSAC Cancels April LSAT, To Offer At Home Remotely Proctored May LSAT (Apr. 8, 2020)
• July Bar Exam Update: ABA, Arizona, California, Florida, Tennessee, Vermont (Apr. 8, 2020)
• Barros: Timing Of The Bar Exam: — A Billion Dollar Issue In The COVID-19 Crisis And Beyond (Apr. 8, 2020)
• Pepperdine Caruso Law Hosts 6th Annual Parris Awards (Apr. 9, 2020)
• Indiana Allows 2020 Law Grads To Serve As Graduate Legal Interns And Take February 2021 Bar Exam (Apr. 9, 2020)
• Chemerinsky & Mnookin: The Case For Provisional Bar Licenses In The Coronavirus Pandemic (Apr. 9, 2020)
• Leadership Lessons From The COVID-19 Pandemic (Apr. 9, 2020)
• With Bar Exam In Limbo, Momentum Builds for Supervised Practice Programs (Apr. 9, 2020)
• BigLaw Starts Cancelling Summer Associate Programs, Delaying First Year Associate Start Dates, And Cutting Salaries (Apr. 9, 2020)
• Law School Clinics Across The Country Offer Coronavirus Help (Apr. 10, 2020)
• July Bar Exam Update: Alaska, Guam (Apr. 10, 2020)
• Summary Of The Tax Provisions Of The CARES Act (Apr. 10, 2020)