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March 29, 2020

How about offering "diploma privilege" law degrees for current 3Ls who help practicing lawyers with compassionate release and clemency petitions?

The question in the title of this post is my reaction to the interesting and important debate over whether and how a bar exam should be required for current 3L law students in order for them to be able to become practicing lawyers.  This Law.com article, headlined "Fall Bar Exam Added, Fate of July Test Uncertain Amid COVID-19 Pandemic," details the issues and challenges:

Jurisdictions now have the option to offer the bar exam in the fall.  The National Conference of Bar Examiners, which develops the nationwide test, announced Friday that it will offer an alternate date for the all-important licensing exam for jurisdictions that cannot, or choose not to, move forward with the July administration due to the COVID-19 pandemic.

The national conference has not yet canceled the July exam.  It will decide the fate of the July test no later than May 5, with the idea that it will have a better idea of whether enough jurisdictions want to move ahead with the test and whether public gathering restrictions will even make it possible....  If some jurisdictions do offer the bar exam in July, the national conference will prepare a different test for the fall — the date of which has not yet been finalized, conference president Judith Gundersen said Friday.

Moving to a fall bar exam would delay admission for test takers by about two months, the national conference noted, but that’s preferable to waiting until the February 2021 exam.  “There are no simple answers and no great solutions in this situation,” read the national conference’s statement. “We are trying to provide some certainty in truly uncertain times, while maintaining the integrity of the bar admissions process for the benefit and protection of the public.”

Any postponement of the bar exam may not sit well with graduating law students, some of whom have begun to organize and lobby their jurisdictions for a one-time emergency diploma privilege that would enable them to practice without taking and passing the bar.

Brian Heckmann, a third-year student at Florida International University College of Law, said simply postponing the bar exam until the fall is short-sighted. “Given the nature of this pandemic, there is no guarantee we won’t be in the same position come the end of August that we are in now,” he said Friday. “What would happen then? Keep kicking the can down the road and delay the ability for graduates to practice indefinitely?” Delaying the admission of new lawyers would also exacerbate the nation’s growing unemployment problem and force new law grads to take jobs for which they are overqualified while they await the opportunity to take the bar, he added.

Bar examiners and court systems have come under increasing pressure this week to make swift decisions about the fate of the bar exam, in part to help alleviate some of the stress and uncertainty graduating law students feel about the future and their professional prospects.  A widely read paper released March 23 by 11 legal academics and education policy experts [available here] argues that jurisdictions should act fast in adopting alternatives to the July bar, given that it seems increasingly unlikely that it will be safe to gather so many people together at that time.  The paper argues against postponing the exam, given that the COVID-19 pandemic may stretch on in waves and that predicting when it will be safe to convene in large numbers is difficult....

Meanwhile, law students are coalescing around the diploma privilege concept.  More than 1,000 law students this week signed a letter to the New York State Bar Association’s Task Force on the New York Bar Examination asking it to quickly adopt a diploma privilege for 2020 graduates of American Bar Association-accredited law schools, arguing that it is the fairest way to handle the unprecedented situation while also ensuring new lawyers come online to address access to justice issues.

Law students in Florida are also pushing for a diploma privilege. By Friday morning, nearly 2,000 had signed a petition calling on the Florida Board of Bar Examiners to extend an emergency diploma privilege to 2020 graduates of ABA-accredited law schools who had registered for the July test.  “Such privileges could easily come with stipulations that ensure the competence of those admitted to the practice of law so as to protect the public from unqualified lawyers,” the petition reads.

I have never been a big fan of the bar exam, so I approach this debate with an affinity for finding other ways to license lawyers.  And, as the title of this post is meant to suggest, at this time of national (and international) public health emergencies, shouldn't we be urging young lawyers-in-training to invest their time in activities other than studying for a high-pressure, mega-test?

Unsurprisingly, I think it would be great to channel junior lawyer time into mass clemency and compassionate release efforts. But there are, of course, so many other legal needs being created and enhanced by the COVID pandemic.  I would hope bar official might appreciate that encouraging junior lawyers to pursue legal community service, rather than focus on bar prep, could help encourage a group of new lawyers to have the right kind of professional commitments and values from the very start of their careers.

March 29, 2020 at 12:34 PM | Permalink


Professor Berman, please elaborate on your statement that you have never been a big fan of the bar exam.
What alternatives to you propose to ensure persons know how to read a case, distinguish holding from dictum, apply precedent, research the law, have and understanding of the basic principles of the law, spot issues in a fact pattern?

Posted by: Michael R. Levine | Mar 30, 2020 10:32:25 AM

Michael, if a student has been able to pass through an accredited law school with adequate grades, I am not sure how a busy-work test like the traditional bar exam is going to teach them these skills. Notably, Wisconsin uses a "diploma privilege" for in-state schools, and I have seen no evidence that there is a poorer quality of legal services in that state. Moreover, the multiple choice/short essay nature of the bar exam does not test or assess the skills you stress, nor do I think any time-pressured test really serves to gauge true lawyering ability. The bar tests how well people can take tests, not how good (or bad) a lawyer they will be.

If well constructed, I might be able to accept the value of some kind of national standardized test after the 1L year --- kind of like medical school boards --- that could help students self assess whether it would be sound for them to continue with the expense of two more years of legal training. But a world in which the former Dean of Stanford law school can fail the bar exam (https://taxprof.typepad.com/taxprof_blog/2005/12/former_stanford.html) reinforces my view that the bar exam is a poor way to decide who is a minimally adequate lawyer.

I would also be very comfortable letting the market decide by making the bar available, but not required, for law school graduates. Firms or other employers who wanted bar passers could say they are only hiring those folks, but other positions could just focus on other credentials. Then we might even refine the bar (like with the patent bar now, I think) so that would be criminal lawyer could focus on studying the area of law in which they wish to practice. And so on....

Let me finish this answer with a hard question back at you: If you think the bar is important to screen potential lawyers, why not require every lawyer to take it again every, say, 10 or 20 years to make sure they are still competent? How to research the law sure has evolved a lot in the last 20 years, as have lots of basic principles in many fields. If it is a good exercise for the law school graduates to get a license, why not have practicing lawyers have to do it again every so often to keep their license?

Posted by: Douglas A Berman | Mar 31, 2020 12:43:33 PM

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