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November 01, 2022 Vol. 48, No. 1

In wake of COVID-19, several jurisdictions explore other ways to license new lawyers

By Marilyn Cavicchia

When it comes to how new lawyers are licensed, “if we dumped the puzzle pieces out and started over, is this where we would land?” asks Brian Gallini, dean of the Willamette University College of Law and a member of a committee convened by the Oregon Board of Bar Examiners to develop two non-bar exam licensure pathways.  

Attorney licensing was one of the many puzzle boxes knocked over by COVID-19; as jurisdictions wrangled over whether to delay bar exams, hold them remotely, or go forward as planned, several temporarily opened up alternatives such as diploma privilege, a period of supervised practice after completing law school, or a combination.

Joanna Perini-Abbott, a member of the Oregon Board of Bar Examiners (BBX) and chair of the pathway development committee that was created at the behest of the Oregon Supreme Court, notes that lawyers, academics and others had been talking about bar exam alternatives for years. But before the pandemic, boards of bar examiners mostly kept their focus on what was right in front of them—which was bar exams.

“[In 2020], all of a sudden, we were rethinking everything,” Perini-Abbott recalls. “That caused us to lift our heads and look around.”

From an emergency measure to long-term alternatives

What the Oregon BBX saw, Perini-Abbott notes, were two long-standing models: diploma privilege in Wisconsin (dating back to 1870, and applicable only to graduates of University of Wisconsin Law School) and the Daniel Webster Scholar Honors Program (an experiential learning program started in 2005 at the University of New Hampshire Franklin Pierce School of Law).  

The jurisdictions that instituted diploma privilege as a COVID emergency measure—including Oregon—all discontinued it in February 2021. As of fall 2022, several jurisdictions are in various stages of considering major reforms to how new lawyers are licensed during non-emergency times. Rather than diploma privilege, most of the focus is on two models: experiential learning during law school or a period of supervised practice after law school.

Oregon is furthest along: The development committee that Perini-Abbott chairs and Gallini is a member of follows on work done by the Alternatives to the Bar Exam Task Force (which Perini-Abbott and Gallini also served on.) After the state Supreme Court granted diploma privilege in 2020, Chief Justice Martha Walters asked the Oregon BBX to convene a task force to explore potential exam alternatives for the long term.

In January 2022, the court unanimously approved the task force’s recommendations “in concept” and asked that a new group be convened to develop exactly how the Oregon Experiential Pathway (OEP) and Supervised Practice Pathway (SPP) could work. Once implemented, these pathways would not eliminate the bar exam; instead, law students in Oregon would be able to choose from among three paths to licensure rather than just one.

Via a capstone project or other formal assessment, the Oregon BBX would still be the body that determines whether the work meets the requirements for licensure. Perini-Abbott notes that this represents not a diminishment of the BBX’s role but an evolution in how it fulfills that role. Bar exams, too, have evolved considerably over the years, she says, adding that this ongoing change erodes the concept that a bar exam necessarily helps maintain consistency within the profession.

“All we're doing is proposing the next evolution of how we evaluate lawyers,” Perini-Abbott says. “Whether you call it an exam or a portfolio, it doesn’t matter.”

One reason the development committee and the task force before it have focused on these two paths rather than straight diploma privilege, Gallini says, is concern that law professors might feel unduly pressured if they thought they were the sole gatekeeper for who enters the profession. While some might respond to this pressure by waving students through whose work isn’t up to par, he adds, others might weed people out who really could be competent lawyers—and neither approach would fulfill the goal of creating pathways that are at least as valid as the bar exam, if not more so.

The development work is now well under way: Perini-Abbott hopes that preliminary plans will be available for public comment in November or December 2022 and that a proposal will be on the court’s calendar by May 2023. If the proposal is approved, it will still take some time to build both new pathways to full capacity, Perini-Abbott notes; while this will limit participation at first, eventually the plan is for all three pathways to be open for all Oregon law students to choose from, rather than either of the exam alternatives being an honors program for a select few.

Possible impact on legal education

Just as the role of the Oregon BBX will evolve, Gallini expects that law schools in Oregon will need to make some big changes once these new pathways, especially OEP, are up and running. “Right now, we walk around the plane without flying it, or we talk about the surgery without performing it,” he says, speaking of legal education in general, not just in Oregon. “There's some spaces where that's not true, like clinics or externships. But if you think about the core way we deliver our legal education, that hasn't really changed over the last several decades.”

The Socratic method and large lecture hall won’t disappear, Gallini says, but law schools will need to build in more classes that don’t operate that way and that don’t simply “teach to the test”—which he says can happen under the current system were everything leads to a bar exam, and a school’s accreditation depends on its graduates’ pass rates. With several jurisdictions now considering licensure reform, Gallini notes, the ABA Section of Legal Education and Admissions to the Bar is considering reviewing its Standard 316 to ensure that its wording accommodates any states in which a bar exam isn’t the only path to licensure. (Another possibility that Gallini is pleased the section will consider is raising the required experiential learning credits from six to 15.)

Gallini says this discussion of how new lawyers are licensed is relevant to another discussion currently taking place: whether law schools should be allowed to go test optional in their admissions process. As jurisdictions begin to look at the bar exam and the degree to which inequity may be involved (including in terms of which racial and ethnic groups tend to score best on it, and why), the LSAT and GRE might also come under additional scrutiny. Also, Gallini says, the current belief is that the LSAT helps predict not only law school success but also bar passage. If the bar exam is no longer the only way to license new lawyers, he adds, “then you remove the incentive, from an admission standpoint, to really focus on using the LSAT as a predictor.”

Not just spurred by the pandemic

There’s no doubt that the pandemic and its temporary measures helped spur movement toward more permanent attorney licensing reform. In large part, says Logan Cornett, director of research at the Institute for the Advancement of the American Legal System, this is because the jurisdictions that resorted to alternatives when exams weren’t feasible found that this did not lead to admitting lawyers who were unfit and went on to cause consumer harm.

As a result, Cornett says, some, though not all of those jurisdictions began to wonder, “If we can do the exam in different ways this year, or if we can have provisional licensure programs this year, or if we can have diploma privilege this year, why can't we do that every year?”

But Perini-Abbott, Gallini, and Cornett all note that the work currently being done builds on research that began years or even decades before 2020. Whether focused on changing the bar exam itself or developing alternatives, this research has centered around the questions of whether the current bar exam is the most accurate, effective, and equitable way to measure minimum competence to practice law. Those currently exploring licensing reform often cite these researchers and projects in particular:

  1. Deborah Jones Merritt of the Ohio State University Moritz College of Law believes the bar exam lacks validity in that it has not been proven to measure the specific quality (minimum competence to practice law) that it is intended to assess. In “Validity, Competence, and the Bar Exam,” a 2017 opinion article in the newsletter of the Association of American Law Schools, Merritt wrote that the bar exam was “broken” and even that it put clients at risk because it “licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.” Merritt also alluded to racial inequity that others had noted in the bar examination process (including prep and related expenses) and asked, “How can we defend a racial disparity if our exam does not properly track the knowledge, skills, and judgment that new lawyers use in practice?”
  2. Foundations for Practice: Educate and Hire the Best Lawyers, an IAALS project that began with a survey in 2014 in which practicing lawyers were asked which characteristics were most important for lawyers who are just starting out. The project’s current work is, in part, to develop “a relevant, empirically validated, and effective outcomes-based framework for education and hiring practices that will ensure new lawyers are prepared as best they can be to serve clients as soon as possible.”
  3. Via Building a Better Bar: Capturing Minimum Competence, in partnership with Moritz Law and with Professor Merritt on the project team, IAALS conducted focus groups in 2019 to ascertain what specific components are essential to minimum competence to practice law. This project received funding from AccessLex Institute. In 2020, the project published a list of 12 “building blocks” of minimum competence; five insights about how best to assess minimum competence (including that closed-book exams are an inaccurate measure; that written performance tests are more in keeping with lawyers’ actual tasks; and that practice-based assessments, perhaps based on clinical performance, are another promising avenue to explore); and 10 recommendations for how to implement the five insights. The Oregon task force specifically cited this project in its report; IAALS wrote a comment in favor of the task force’s recommendations.

On a parallel track, but based on some of the same concepts (including that more emphasis should be placed on assessment of lawyering skills to better reflect real-world practice), the National Conference of Bar Examiners is working toward implementing what it calls the NextGen bar exam, building from task force recommendations approved by its Board of Trustees in January 2021. But while those studying or working toward licensing reform are interested in NCBE’s work and what the NextGen exam will look like (and NCBE has a seat on the Oregon development committee), they don’t think this work obviates their own.

“My sense is that some things that are part of minimum competence are going to be really difficult to assess via an exam,” Cornett says, “no matter what the exam is.”

For example, she says, new lawyers need to know how to competently interact with clients. “To me,” she adds, “the direction of having this supervised practice component and these experiential education components is where you can really get at those skills with a high degree of fidelity.”

Similar exploration in other jurisdictions

Thus far, Oregon is the only jurisdiction whose supreme court has given the go-ahead to propose in full detail how non-exam pathways to licensure could work. However, several others are in earlier stages of considering reforms to how new attorneys are licensed.  

For example, the California Blue Ribbon Commission on the Bar Exam, a follow-up to a 2018-2020 working group, began its work in early 2021 and expects to make its recommendations by the end of 2022. Unlike in Oregon, the California commission is looking both at ways to revise the bar exam and the possibility of establishing an alternative pathway to licensure. During a July 2022 Redesigning Legal webinar, moderator Donna Hershkowitz noted that the commission has been talking about “completely different test designs than we've historically seen with bar exams,” including simulations, game-based assessments, and something akin to the “Choose Your Own Adventure” series of children’s novels, in which one choice leads to a specific outcome and another set of choices.

Regarding an alternative pathway, Hershkowitz said the commission is exploring several possible components, including changes to law school curriculum, supervised practice requirements after law school (possibly akin to a prep program that's in use in several Canadian provinces), capstone or portfolio projects that would be evaluated by the regulator rather than the law school, and/or mini assessments.

“As part of all of their discussions on both the exam and the non-exam pathway,” added Hershkowitz, chief of programs and legislative director at the State Bar of California, “our commission is grappling with issues of how to ensure minimum competence, how to ensure reliability and validity of nontraditional measurement tools, and how to address access issues and equity concerns.”

On the subject of access and equity, Hershkowitz elaborated that the committee in California is currently working on how to ensure that licensure alternatives don’t unintentionally duplicate some of the same inequity as in the bar exam because some students will have more natural access to lawyers willing to create a better supervised practice experience and will also be in better position to afford a delay in their entry to full practice.

Utah, which was the first to institute diploma privilege as a temporary measure during the pandemic, is another jurisdiction actively studying permanent licensure reform. One member of a committee chaired by Utah Supreme Court Justice John Pierce is Louisa Heiny, associate dean for academic affairs and professor at the University of Utah S.J. Quinney College of Law. Also an adviser in her school’s academic support program, during the Redesigning Legal webinar, Heiny noted that disability is another area where the committee is concerned about inequity. Because speed is so imperative in the bar exam and many students struggle to obtain accommodations, she explained, the committee questioned “whether it was really doing a good job separating the competent from the incompetent, or whether it was just forcing a curve that wasn't necessary.”

The committee has been working for two years, Heiny said, and has submitted a preliminary proposal to the state Supreme Court and is now working on its report. Rather than pure diploma privilege as during COVID-19, Heiny anticipated that Utah’s permanent alternative licensure pathway would include a slate of required courses (using the IAALS Building a Better Bar study to help determine core competencies and how they’re best learned) and supervised practice.

Also, the Minnesota Board of Law Examiners is in the midst of a two-year study into the bar exam and its history in the state, the implications of being a UBE state, and the possibility of developing alternative ways to assess minimum competence to practice law. The board expects to make recommendations to the Minnesota Supreme Court in June 2023. Three working groups completed their process in May 2022. Working Group 1 supported the concept of multiple pathways to licensure and said the NextGen bar exam showed promise as one such pathway. Working Group 2 recommended a curricular path similar to the Oregon Experiential Pathway now being developed. Working Group 3 recommended establishing a Minnesota Supervised Practice Pathway; like the similarly named path now being developed in Oregon, this would involve a period of supervised practice after law school graduation.

When the Minnesota State Bar Association first learned that the MBLE planned to undertake its study—which initially was to be only of the bar exam—the bar “expressed our concern that diverse viewpoints be adequately represented and requested that the review also look at alternatives to the bar exam,” says Nancy Mischel, senior director of policy at the MSBA. The bar also filed a petition asking that a separate task force be appointed to study this issue, but this was denied by the state Supreme Court in January 2022. Mischel points to several ways the MSBA has supported the two-year study and helped ensure that diverse viewpoints are considered:

  1. Recruiting members of the MSBA and affinity bar members to participate in the MBLE working groups and public comment sessions.
  2. Providing funds for an outside consultant to facilitate public comment sessions and offer guidance to the MBLE.
  3. Hosting several CLEs about the bar exam, possible alternatives, and the MBLE study.
  4. Publishing several articles in its Bench & Bar of Minnesota, including this July 2022 overview of the topic and this December 2021 article more specifically about the concerns that led the bar to file its petition.

What role can bars play?

Much like in Minnesota, where the bar has made sure to play as active a role as possible in the study of the bar exam and possible licensure reform, bars have been actively involved in the discussion in Oregon—to include as many voices as possible, Perini-Abbott notes, and also to prevent any bar members from being surprised when the proposal comes up for public comment. Every county bar and affinity bar in the state was invited to have a representative on the development committee’s advisory group, she adds, and about half of the county bars and more than half of the affinity bars accepted the invitation. Task force and committee members have also presented a lot of CLEs on this topic and had other interactions with bars across the state over the past two years, and Perini-Abbott anticipates their schedule will remain busy as the time for the proposal draws near.

Gallini notes that it’s been by talking with bar members and other stakeholders that the task force and now the development committee have allayed people’s fears that the two new pathways represent “lowering the bar” or “letting everybody in”—and it's been a slow process: “The number of hostile rooms I walked into on this issue two years ago definitely outweighed the positive ones.”

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