The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.
It may soon be possible to work with 2020 bar applicants who may provide legal services before the applicants take and pass a bar examination. As COVID-19 triggered the cancellation and rescheduling of July bar examinations, some states took extraordinary action to allow qualified bar applicants to engage in the limited practice of law, subject to direct supervision by licensed lawyers, pending their passage of the bar examination. Often the emergency rules are explicit about their intent, which is to bridge the applicants’ economic gap between graduation and passing the bar. While the rules are applicable to all 2020 bar applicants, they may have the most impact for those who already have job offers and will be able to start their legal careers immediately. But the rules also provide an opportunity for other applicants to serve prospective employers and clients directly. Best of all, the applicants bring unprecedented skills and access to resources that may be unique to this group.
As jurisdictions began reacting to the COVID-19 pandemic with cancellation of their July bar examinations, the American Bar Association’s Board of Governors adopted a resolution urging all jurisdictions making such cancellations to immediately adopt an emergency rule that would authorize law students to engage in the limited practice of law. The resolution included recommendations for provisions to be included in the rules, including how to define the affected students, the scope of their provisional practice, and the necessity for a licensed supervising lawyer to oversee their work. The resolution included examples from two states, Tennessee and Arizona. Many others have followed suit. A continuously updated list of participating jurisdictions and links to their rules appears on the ABA’s Law Student Division page, Before the Bar.
Key aspects of the ABA resolution appear below for purposes of discussion, along with references to the Model Rules of Professional Conduct. However, it is important to emphasize that the states rule: Everything that impacts these limited practice applicants will be controlled by the specific provisions of the jurisdiction’s rule. This includes the definition of which applicants qualify for limited practice, the scope of the practice, and the responsibilities of the supervising lawyer.
The jurisdiction’s emergency rule defines the qualified applicant. If the privilege is available, it may be extended beyond 2020 graduates; law school graduates from earlier years may be eligible if they are otherwise qualified to take the 2020 bar examination, such as those who have served as judicial clerks. The scope and length of the allowable practice will be specified in the emergency rule. The qualified applicant will also be defined by the availability of a licensed supervising lawyer. Both may be required to register with the licensing authority of their jurisdiction in order to begin working together pursuant to the emergency rule. One thing is clear: Both the applicant and the proposed supervisor must have a good understanding not only of their jurisdiction’s emergency rule, but also of the applicable rules of professional conduct and disciplinary process.
The emergency rule will also define the responsibilities of the supervising lawyer. While the rules differ among jurisdictions, they have a common theme: the supervision required is direct and goes well beyond armchair mentoring. The rules contemplate active day-to-day oversight of the applicant’s work product. Prospective supervisors should understand what this entails. Does the rule allow the applicant to make unaccompanied court appearances? Take depositions? Sign legal documents in the applicant’s own name? In the supervisor’s name? Form or terminate a lawyer-client relationship? What disclosure is required to the client receiving applicant’s legal services? Where the emergency rules are silent, the jurisdictions’ own rules of professional conduct will apply.
The Model Rules of Professional Conduct (MRPC) are not regulatory, but all U.S. jurisdictions use some version of the Model Rules and are similarly numbered, so the MRPC are instructive. Supervisors and applicants alike should carefully review the following or their jurisdictions’ counterparts: MRCP 1.4 (Communications); MRCP 5.1 (Responsibilities of a Partner or Supervisory Lawyer); MRCP Rule 5.2 (Responsibilities of a Subordinate Lawyer); MRCP 5.3 (Responsibilities Regarding Nonlawyer Assistance); and supervision-related ethics opinions, such as ABA Formal Ethics Opinions 483 (duties of a lawyer after an electronic data breach); 477R (communication of client information); 467 (supervisory duties of prosecutors); 06-411 (prosecutors and excessive caseloads); and 03-429 (supervision of an impaired lawyer). ABA formal opinions are now available to all ABA members at no additional cost. For general guidance on lawyer supervision, see the chapters on rules 5.1 and 5.2 in the “Annotated Model Rules of Professional Conduct,” 9th edition (2019).
Even though the emergency rules are framed to provide opportunities for 2020 bar applicants whose July examinations have been delayed, it is reasonable to consider what benefits the rules bring to lawyers and their firms as potential supervisors. How has the demand for legal services been affected by COVID-19? While many legal practices have been constricted, downsized, or even closed by the impact of the virus, others are seeing a pandemic-related demand for legal services. For example, the ABA Coronavirus (COVID-19) Task Force is in the process of tabulating the results of a recent survey on pandemic-related legal needs, with a view toward how it impacts the call for pro bono services. But the expansion of general demand for legal services is also evident, including in such areas as family law, insurance coverage (especially business interruption), and access to civil and criminal courts for litigation. Lawyers and firms who remain active in these and other areas may find that the demand for their services is increasing and see a role for the 2020 applicants in sustaining their practices.
And the 2020 applicants do not come empty-handed. While some lawyers would not otherwise have considered taking on regular first-year associates, the 2020 bar applicants bring considerable value. As recent law graduates, their electronic legal research skills are fresh and current. Because many of them ended law school with COVID-19 restrictions in place, they have considerable experience with distance meetings — a competitive advantage for lawyers when access to courts has been restricted by pandemic-related measures. Best of all, they have free access to a resource that some law practices may not have. On May 12, Bloomberg Law issued a press release stating that it is extending free access to the Bloomberg Law platform to this year’s law school graduating class through June 1, 2021, regardless of the applicants’ employment status.
The ABA is offering another benefit to the 2020 applicants and prospective supervising lawyers. The ABA’s Career Center provides a resource where job seekers can post resumes and prospective employers post open positions. The Career Center has launched a feature designed specifically for 2020 applicants seeking employment and prospective supervising lawyers looking for these emerging legal professionals.
The ABA resolution includes a specific caveat that may be echoed in the emergency rules: The adoption of these emergency rules does not signal a departure from policies that support the importance of bar examinations to test lawyers’ competence and to ensure the protection of the public. Unless otherwise stated in its rule, a jurisdiction is not automatically moving in the direction of “diploma admission” by reason of taking this emergency action. Emergency rules authorizing limited legal practice to 2020 bar applicants are very much an historical accident peculiar to their place, time and circumstances. But they are also an opportunity. The applicants are here, they’re ready and they can do a job that needs to be done. Savvy lawyers will take notice.
Teresa J. Schmid is the Director of the American Bar Association’s Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.