Legal Education

Legal community has mixed reactions to ABA resolution on limited law practice for recent grads

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As law students worry about what the coronavirus pandemic will mean for their careers, some lawyers say those concerns should be eased by a Tuesday ABA resolution urging states to adopt emergency rules authorizing supervised limited practice for recent graduates, along with a bar pass requirement of no later than December 2021.

Under the resolution, limited practice rules would apply to graduates of ABA-accredited law schools who graduated between 2019 and 2020 and have not yet taken the bar exam. Limited authorization would end if someone takes and fails a bar exam, and people who previously failed a bar exam would not be eligible under the model rule.

“The approach doesn’t foreclose jurisdictions considering other approaches (e.g., remote testing, diploma privileges etc.). But it provides assurance to soon-to-be-graduates that—should a delay become necessary as a result of the pandemic—their careers won’t be on hold indefinitely. That’s important,” Austen Parrish, the dean of the Indiana University Maurer School of Law, told the ABA Journal in an email.

Parrish is one of 11 deans who sent a letter April 3 to the Conference of Chief Justices asking that state supreme courts consider “shorter-term, narrowly drawn licensing measures” in case the July bar exam is not administered.

However, some law students feel differently. Pilar Margarita Hernández Escontrías, a third-year law student at the University of California at Irvine who co-authored a petition urging diploma privilege, wonders whether additional bar study loans will be available.

“If not, many students will not even have a shot at passing the bar—not because they aren’t smart or competent, but because they didn’t have the means,” she wrote in an email to the ABA Journal.

She thinks the emergency limited practice rules will create more disruption rather than help ease the problem.

“Requiring young attorneys to sit for the bar two to three years after they have completed law school would again disadvantage certain populations of law students. Students of color, students with more financial responsibilities, students with families, and students who do not have the privilege to take unpaid leaves of absence from their jobs to study for three months will have to bear the personal and financial burden of provisional licensing,” she wrote.

In a March 22 working paper, a group of legal academics urged states to consider diploma privilege and supervised practice for recent graduates. The group has also weighed in with an April 7 writing posted on the Harvard Law Review Blog.

Title “Licensing Lawyers in a Pandemic: Proving Competence,” it states that jurisdictions could require graduates to work under a lawyers supervision for two years and impose other requirements, such as mentoring and continuing legal education, rather than requiring bar passage.

“Wouldn’t three years of full-time professional education plus supervised practice on real client matters demonstrate a new lawyer’s competence to practice law?” the authors asked.

They also questioned why the profession places so much faith in “this high-stakes exam” to determine competency to practice law. The answer, according to the authors, is that people at one point thought standardized tests would overcome bias and privilege in admissions. However, they added, at this point, it may do the opposite.

“Test-takers who are hungry, poorly housed, working full-time, and unable to afford specialized prep courses don’t score as well as their more privileged peers. High stakes exams, from kindergarten through the bar, solidify the position of well-to-do elites,” according to the paper.

As of Wednesday morning, eight states have postponed the July bar exam, according to information posted on the National Conference of Bar Examiners website. The organization develops and produces attorney licensing tests used by most U.S. jurisdictions, and it supports the ABA resolution, NCBE President Judith Gundersen told the ABA Journal.

“It addresses both the graduates’ needs to be able to earn a living and the public’s right to be protected until full admission via the licensing exam is possible. We are grateful to the ABA Board of Governors for its leadership during this difficult time,” she wrote in an email.

The council of the ABA’s Section of Legal Education and Admissions to the Bar supports the extension of limited practice rules too, according to Bill Adams, managing director of ABA accreditation and legal education.

“I am glad that the ABA has taken this action as courts and licensing agencies start to consider how to handle the delays or postponements of bar examination offerings. This resolution provides helpful guidance,” Adams, who also served on the resolution working group, wrote in an email to the ABA Journal.

According to some law school deans, few if any attorney licensing agencies are willing to consider diploma privilege, which at this point is only available in Wisconsin. But if states want to include diploma privilege in their definitions of limited practice, they can, Paula Frederick, who’s also a member of the resolution working group, told the Board of Governors on Tuesday. She is the State Bar of Georgia’s general counsel and chair of the ABA Standing Committee on Ethics and Professional Responsibility.

“For me, it’s important to be sure we aren’t unleashing unqualified people on the public. Even though there’s a tremendous public need for lawyers, we need to deliver competent lawyers. The bar exam is the last step in ensuring that competency,” Frederick said.

Under the resolution, graduates would need to meet all of their jurisdictions’ other attorney admissions requirements, other than passing a bar exam. They would be subject to the same attorney discipline rules as licensed lawyers.

Also, a lawyer with an active law license must confirm in writing to the jurisdiction’s attorney licensing agency that he or she is supervising the recent graduate. Additionally, the relationship must be clearly disclosed to clients, in court filings and for administrative matters.

At least 16 states already allow recent law school graduates to engage in limited practice before passing a bar exam, according to a January 2020 Arizona Supreme Court petition filed by a state task force on legal services delivery. The resolution states that Arizona and Tennessee state supreme courts recently adopted emergency rules similar to what it proposes. New Jersey did this as well, on April 6.

Also, on Wednesday afternoon, the Indiana Supreme Court issued an order allowing anyone who graduated after November 2019 was has not sat for a bar exam to serve as a graduate legal intern until Feb. 28, 2021. The order also states that it is unclear whether the Indiana bar exam will take place in 2020.

There may not be enough attorneys interested in supervising new graduates, Board of Governors member Mark Alcott, who is of counsel at Paul Weiss in New York City, said at the Tuesday meeting. Patricia Lee Refo, president-elect of the ABA and leader of the working group, acknowledged the concern.

“A number of law schools are already thinking about this issue. They are very interested in talking to us about deploying some kind of legal corps for those who can’t go into big firms and don’t have other jobs. They’re trying to figure out if the law school could provide some money and health benefits, and supervising attorneys for their graduates,” Refo said.

Updated April 9 at 9:24 a.m. to reference the Harvard Law Review Blog writing.

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