Paul L. Caron

Sunday, April 12, 2020

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):

CoronavirusCOVID-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:

TaxProf Blog coronavirus coverage:

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