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California Bar OKs Temporary Law Licenses in Place of Bar Exam

Sept. 24, 2020, 10:54 PM

The California State Bar’s Board of Trustees approved a plan that would grant temporary licenses to recent law school grads for less than two years.

The provisional licensing program, which had been ordered by the California Supreme Court, will serve as a stop-gap measure for law school graduates who haven’t yet passed a bar exam but wish to practice until the program ends in June of 2022. To remain licensed, participants will need to pass the bar once the program ends.

The state’s high court on Wednesday rejected a petition for diploma privilege, which would have allowed lawyers to be fully licensed without ever taking the exam.

The California program comes amid growing support for alternatives to the biannual bar exam, which has been postponed and moved online in a number of states across the country. Recent law graduates and others have voiced concern about untested online exam software, which they fear could be rife with technical issues.

A trustees working group looked at the provisional licensing programs from 24 states while devising California’s new rule, working group chair Hailyn Chen during the Thursday meeting.

The trustees created the rule based on the concerns of law grads who will be utilizing the new program, including how the pandemic had affected their careers, finances, and health, said Donna Hershkowitz, interim executive director of the state bar.

“Those were important guiding principles,” she said.

Possible Tinkering with Cut rate

Applicants for California’s provisional license program must be 2020 graduates of California law schools or of schools outside the state, if such graduates are permitted to sit for the bar exam under California law. There are no limits on the number of times an applicant may have taken and not passed the bar exam.

Participants must also be employed by, or have an offer from, an employer with an office located in California, and they also must agree to practice under a supervising lawyer who is an active licensee in good standing of the State Bar.

Participants don’t need to have taken or passed the bar exam beforehand to participate, according to the program memo.

They must refer to themselves as “provisionally licensed” lawyers when in conversations with clients or potential clients, and in court pleadings. They may “not describe themselves as a fully-licensed lawyer, or imply in any way orally or in writing that they are a fully-licensed lawyer,” the board of trustees said.

The trustees also ordered a provisional licensure working group to set another meeting to further discuss whether to recommend extending the program to those who previously scored 1390 or greater on the bar exam.

This is a potential touch point: California has previously weighed changing its “cut” score for bar passage. The state assembly last month adopted a resolution urging the court to retroactively lower the score, so those who would pass under the 1390 score up to five years ago could be admitted to practice, a request the court rejected in August.

Over the course of the pandemic, California officials have struggled to find the safest and smartest way to proceed with a bar exam.

The state’s high court in April ordered that the in-person bar exam slated for July 28-29 be postponed to Sept. 9-10. Then, in May, the court moved the exam online, citing the “enormous challenges” the coronavirus health crisis posed for those seeking law licenses.

In July, the California Supreme Court directed the state bar to establish a provisional licensing program for 2020 law school graduates who had yet to sit for the exam. The program would allow them a limited right to practice law under the supervision of a licensed attorney.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com;

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