Let ‘Em Practice: Why States Should Adopt Temporary Diploma Privilege

Photo by Ivan Aleksic on Unsplash

Nicholas Eaton, Associate Member, University of Cincinnati Law Review

I. INTRODUCTION

Thousands of law students across the nation are scheduled to take the bar exam on July 28th-29th.[1] However, with bans on large gatherings in every state in America, it is likely that very few of them will be able to do so. Bar admissions organizations are eyeing a September test date for the law school class of 2020,[2] delaying the start of many legal careers by months. To prevent a period of unemployment, states are considering adopting diploma privilege. Diploma privilege allows law school graduates to practice law without taking the bar exam.[3] The concept is unsurprisingly supported by the law school class of 2020 and criticized by bar admissions organizations.[4]

In making this important decision, states must consider the wellbeing of the class of 2020 and the legal field at large. States must adopt a plan which allows law school graduates to begin their careers without compromising the public’s faith in the competence of lawyers. The best way to do so is by adopting temporary diploma privilege. States should allow 2020 law school graduates to practice under supervision of a licensed attorney for a maximum of three years before taking the bar exam.

II. BACKGROUND

A. The Bar Exam

The bar exam is a pivotal milestone for young lawyers. It operates as a test of one’s competence as a lawyer and a rite of passage into the legal profession.[5] Seasoned attorneys tell war stories of the bar exam while graduating law students empty their pockets and clear their schedules to prepare.

The bar exam traces back to the 19th Century, when states began to create boards of bar examiners.[6] By 1931, national organizations such as the American Bar Association and the National Conference of Bar Examiners (NCBE) had formed to improve the bar admissions process.[7]

While many states choose to offer a state-specific bar exam, 34 states have chosen to adopt the Uniform Bar Exam (UBE).[8] The UBE is a two-day exam consisting of an essay and a multiple choice portion covering essential areas of law.[9] An individual who passes the UBE can use the score to apply for admission in any other UBE jurisdiction.[10]

B. COVID-19’s Impact

Just as the COVID-19 pandemic has done with nearly every aspect of society, it has drastically impacted bar admissions. Stay at home orders and social distancing measures have placed the July administration of the bar exam in question.[11] While the majority of states have yet to postpone the exam, at least six have already chosen to do so.[12] States continue to stay updated on public health guidelines as the tentative July 28th-29th date approaches.[13]

Meanwhile, several state courts have been petitioned to implement diploma privilege.[14] Diploma privilege is a concept used in the state of Wisconsin, which grants law school graduates a legal license without taking a bar exam.[15] New Jersey, Utah, Tennessee and Wyoming have already adopted diploma privilege on a temporary basis.[16]

Changes to bar admissions will have a significant impact on graduating law students. Due to the uncertainty that comes with the pandemic, many of these students are uncertain whether their employers will honor prior job offers.[17] Without licenses to practice law, recent graduates could be without income and unable to begin student loan payments.[18] While student loans will not accrue interest through September 30, 2020,[19] graduating law students will still need to pay for their cost-of-living. While states continue to monitor the situation, graduating law students remain in limbo.

C. Proposed Solutions

Many states plan to administer the bar exam in September.[20]  However, as mentioned above, postponing the bar exam offers its own host of problems.[21] The law school class of 2020 must be shepherded into the profession in a unique way, and states only have a few months to come up with a plan.

States have three general options to consider. First, states can stick to the status quo by simply postponing the bar exam and requiring 2020 law school graduates to pass the bar before being admitted to the practice. Second, as advocated for by many law students, states can adopt diploma privilege and admit all 2020 law school graduates to practice law.[22] Finally, states can adopt a modified version of diploma privilege. Under this proposal, states would allow 2020 law school graduates to practice under the supervision of a licensed attorney until a bar exam can be offered.[23]  This proposal was recently backed by the NCBE in its April 9th report.[24]

III. DISCUSSION

A. Weighing Options

As July 28th draws closer and bar exams continue to be postponed nationwide, states must make a difficult decision regarding the law school class of 2020. Doing nothing will place many graduates in a state of disarray for months. Changing the bar admissions process could have similar negative impacts. In making this decision, states must consider the wellbeing of the class of 2020 and the legal system as a whole.

The first option at the states’ disposal, postponing the bar exam without a plan to help graduates in the meantime, is the worst of the bunch. Many graduating law students have job offers contingent on passing the bar exam. Those who do not are still reliant on their license to make a living after graduation. If states postpone the bar exam without temporary bar admissions reform, those states will soon face a horde of unemployed law school graduates.

States are on the right track with diploma privilege. The law school class of 2020 could keep their careers on track if they are allowed to practice law without taking a bar exam. However, as pointed out by the NCBE, diploma privilege has its downfalls. Diploma privilege deprives the legal field of consistency in qualifications.[25] Every law school is different. Some schools may take the position of gatekeeper for the profession more seriously than others.[26] While Wisconsin has used diploma privilege for years, it only grants diploma privilege to graduates of its two in-state schools. The curriculum of those schools is advanced, ensuring those who graduate are competent. Without the bar exam or this extended curriculum, lawyers are not guaranteed to have a baseline level of competency.[27]

For this reason, temporary diploma privilege is a better course of action. The bar exam has operated as the gateway into the profession for years, and there is good reason for that. The bar exam is an objective way of determining who is qualified to practice law. The NCBE backed temporary diploma privilege in its April 9th report, writing that 2020 law school graduates should be allowed to practice under supervision until they can take the bar exam.[28] This solution is a positive step for the class of 2020, allowing graduates to begin work without delay. It also guards against the competency problems that come with diploma privilege. However, the idea of uprooting graduates from their jobs as soon as a bar exam is offered is unreasonable.

Consider Jane Doe, a third-year law student, who has already spent upwards of a thousand dollars on bar preparation materials.[29] She probably planned to use the early summer to study before she passed the bar and began work. However, if the bar exam were postponed to September, Jane Doe’s plan is thrown for a loop. Temporary diploma privilege would allow her to spend the first few months of the summer working under a short-term contract. Her employer, knowing she will soon depart to take the bar exam, is unlikely to offer a full-time position. After a brief period of work, Jane Doe leaves to take the first bar exam offered. Months later, assuming she passed and that her job accepts her back, Jane Doe can finally return to work. Under the NCBE’s temporary diploma privilege proposal, the law school class of 2020 would be off to a sputtering start.

B. Extending “Temporary”

In order to set graduating law students up for success without compromising the competency standards for attorneys, states should implement temporary diploma privilege. However, states should extend the temporary period of diploma privilege to give graduating law students more flexibility. Instead of requiring graduating law students to take the first bar exam that is offered, states should allow graduates to take the bar exam any time within the next three years.

Law school graduates need more flexibility in order to choose a workable time to leave their jobs to prepare for and take the bar exam. Typically, law school graduates take the bar exam immediately after graduation. Employers understand that this period of time is dedicated to preparation and do not expect the graduates to be ready to work full-time until after the exam. While employers are sure to be understanding of the situation, an employee leaving her job at a moment’s notice once the first bar exam date is announced is far from ideal.

If the class of 2020 is given three years to take the exam, then some can choose to stay and work for a longer period of time. This allows the graduates to (1) give their employers sufficient notice of their departure; (2) develop a bar preparation schedule that works for them; and (3) earn money to support themselves during their time off. However, if some graduates would rather take the first bar exam offered, they are free to do so.

Furthermore, extending the period of temporary diploma privilege does not raise further competency concerns. Graduates would be required to practice under supervision of a licensed attorney during the entire three-year period. The supervising attorneys would ensure the quality of the graduates’ work product until the graduates are able to take the bar exam.

IV. CONCLUSION

The COVID-19 pandemic will lead to unprecedented bar admissions measures. Postponing the bar exam until large gatherings are allowed is simply not enough. States must consider the impact that a delayed bar exam will have on the law school class of 2020. States should adopt temporary diploma privilege, as it will allow the law school class of 2020 to start their careers on schedule. Furthermore, states should allow this period of temporary diploma privilege to last for three years. A longer time period gives graduating law students the flexibility to adapt to changing circumstances. There is no certain solution in such uncertain times, but states must not leave the class of 2020 out to dry.


[1] Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020, National Conference of Bar Examiners (April 9, 2020), http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument% 2F239.

[2] Id.

[3] Id.

[4] Id. Jennifer Smola, Ohio law students asking Supreme Court to grant license without bar exam amid coronavirus pandemic, The Columbus Dispatch (Apr. 8, 2020, 3:53 PM), https://www.dispatch.com/news/20200408/ohio-law-students-asking-supreme-court-to-grant-license-without-bar-exam-amid-coronavirus-pandemic.

[5] Margo Melli, Passing the Bar: A Brief History of Bar Exam Standards, University of Wisconsin, https://media.law.wisc.edu/m/ywq4n/gargoyle_21_1_2.pdf.

[6] Id.

[7] Id.

[8] Uniform Bar Examination, National Conference of Bar Examiners, http://www.ncbex.org/exams/ube/.

[9] About the Ohio Bar Exam, Cleveland State University (Sept., 2019),https://www.law.csuohio.edu/lawlibrary /bar/ohio.

[10] Uniform Bar Examination, supra note 8.

[11] Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020, supra note 1.

[12] Id.

[13] Id.

[14] Id. at 2.

[15] Id.

[16] July 2020 Bar Exam: Jurisdiction Information, National Conference of Bar Examiners, http://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information.

[17] Julie Carr Smith, Virus vexes bar exam, leaving young future lawyers in limbo, AP News (Apr. 9, 2020), https://apnews.com/6de3791a77086a0710584771b0c311b8.

[18] Id.

[19] Zack Friedman, Congress Stops Student Loan Repayment For 6 Months, Forbes (Mar. 25, 2020, 9:04 PM), https://www.forbes.com/sites/zackfriedman/2020/03/25/student-loan-repayment-coronavirus/#1fb20c105f85.

[20] Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020, supra note 1.

[21] Julie Carr Smith, supra note 17.

[22] Jennifer Smola, supra note 4.

[23] Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020, supra note 1.

[24] Id.

[25] Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020, supra note 1.

[26] Id.

[27] See id.

[28] Id.

[29] See Bryce Welker, Best Bar Review Courses, Crush the Bar Exam (April 20, 2020), https://crushbarexam.com/best-bar-review-course/ (Popular bar prep courses offered by Barbri and Themis are $3,695 and $2,095, respectively). See Ohio Bar Review Course, Kaplan, https://www.kaptest.com/bar-exam/courses/ohio-bar-review (Offering one course for $2,599 and one for $1,899).