Vol. 46, No. 1

States mull diploma privilege as option for pandemic-affected bar exams

By Dan Kittay

The COVID-19 pandemic has upended much of the country's life, and bar exams are no exception. States faced difficult questions about whether to administer the test in July, and continue to debate whether to administer it online this fall or cancel it completely and grant diploma privilege to qualified graduates, so the new lawyers can start practicing.

For its part, at its 2020 Annual Meeting in August, the ABA House of Delegates approved Resolution 10G, which asks the highest court or bar admission authority in each state or other licensing jurisdiction to cancel the bar exam or not administer it in person during the COVID-19 crisis unless cleared by public health authorities. While the resolution mentions diploma privilege as one of several alternative approaches to the bar exam during the crisis, it does not favor any specific option.

The National Conference of Bar Examiners website tracks which states held the exam in person, postponed it, held it in July and will offer it again in the fall, will offer it remotely later, or offered diploma privilege. There are also differences among states about whether to accept scores from other jurisdictions where the exam was given remotely, with many states forming reciprocity agreements with each other.

In addition to checking the NCBE website, scanning recent issues of Bar Leader Weekly offers a quick review of what’s been going on in states where there was a strong push for diploma privilege as opposed to a rescheduled in-person exam or a remote exam. For example:

  • In June, deans from all three law schools in Oregon wrote to urge the Oregon Supreme Court to allow diploma privilege (June 24, 2020 issue).
  • In July, the Louisiana Supreme Court issued an order granting diploma privilege for certain applicants, while the Illinois Supreme Court rejected a petition along similar lines (July 29, 2020 issue).
  • In August, though it didn’t opt for full diploma privilege, the Florida Supreme Court—after that state experienced repeated problems with its bar exam—announced it would allow temporary practice under supervision (September 2, 2020 issue).

Mandatory mentoring, training help ensure competence

Underlying some of the discussion about diploma privilege are questions of whether the precedent of allowing some graduates to bypass the bar exam this year could lead to efforts to make this option permanent. In part, this is based on concerns some have raised regarding whether the bar exam is an effective predictor of future lawyer competence.

In a statement, NCBE said that it “believes strongly in the value of the bar exam to protect the public interest” but stressed that the decision of whether to implement diploma privilege is generally made by the high court in each jurisdiction—and certainly not by NCBE itself.

“Like every other high-stakes profession, including engineering, medicine, aviation, and others, the legal profession relies on licensure to ensure that practitioners meet minimum standards of fundamental competency,” the organization wrote. “NCBE remains dedicated to its role, which is to ensure that the bar exam is an objective measure of the legal knowledge and skills needed for entry-level practice."

In some states offering diploma privilege during the pandemic, mentoring programs have helped ensure that new lawyers who waive the bar exam have the skills and support they need. For example, in Oregon, bar applicants were offered options: They could take the July bar exam, take a remote exam in October, or qualified applicants could be granted diploma privilege. The remote exam would not offer a uniform bar exam score, while the July exam did, and also had a one-time lower passing grade. Whether via the bar exam or diploma privilege, all new admittees are required to participate in the Oregon State Bar New Lawyer Mentoring Program—a mandatory program in place since 2011. In July, 235 students took the in-person bar exam, and 255 have opted for diploma privilege, according to the Oregon State Bar.

The Louisiana State Bar Association's Transition Into Practice mentoring program played a key role in that state's granting of diploma privilege for qualified graduates. The Louisiana Supreme Court’s  approval of diploma privilege included requirements for 25 hours of CLE, and participation in the LSBA's mentoring program. The additional requirements "will serve as guardrails to ensure the competency and integrity of the newly-admitted attorneys," the court wrote.

One organization whose name has come up often in recent discussion is the State Bar of Wisconsin, where diploma privilege was adopted by the state legislature in 1870, for graduates of the state’s two law schools. The bar works closely with those two law schools to be sure that students gain a firm understanding of the concepts they will need to practice law, says bar President Kathy Brost, adding that there are 30 credits of mandatory topics toward that aim.  

Pennsylvania Bar Association supports COVID diploma privilege

Though high courts and boards of bar examiners are the bodies that make key decisions regarding their jurisdictions’ bar exams, this doesn’t mean that bars and their leaders have had nothing to say about the idea of offering diploma privilege—and some have spoken up for it more specifically as a pandemic solution than the ABA resolution did.

For example, in Pennsylvania, the bar exam had originally been rescheduled from July to September 2020. The state's Board of Law Examiners then announced in July that the exam would be given remotely in October. The Supreme Court of Pennsylvania also announced a limited license to practice for qualified graduates. Similar to those in Florida and some other jurisdictions, the limitations included working with a qualified supervising attorney.

For some bar applicants, the limited license did not go far enough, and they filed a petition to have the court grant diploma privilege. While not commenting specifically on this filing, Pennsylvania Bar Association President David Schwager says the bar supports the idea of diploma privilege this year, in light of all the changes to the schedule and other stresses placed on 2020 law graduates.

"We acknowledge that diploma privilege is an extreme, outside-of-the-box remedy for the students,” Schwager says, noting that the bar is not advocating for diploma privilege other than during the pandemic. “But we do it in the context of what these bar candidates have been through."

Schwager cites students’ having to finish their third year of law school online; preparing multiple times for intensive study for the exam, only to have the date changed; and reported flaws in facial recognition and other software associated with online exam taking. Some of his colleagues have said that because they took the bar exam, new graduates should as well, Schwager notes.

"My older colleagues and I didn't go through this kind of experience as a result of the pandemic,” Schwager adds. “These students have had all of their usual stresses preparing for the exam, only to find there's an additional few layers of stress on top of it."

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