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California Weighs Emergency Lawyer Licensing Due to Virus (2)

April 22, 2020, 8:50 AMUpdated: April 22, 2020, 6:20 PM

Two separate groups, one led by law school students and the other by deans, are urging the Supreme Court of California to cancel in-person bar exams due to Covid-19 for the remainder of 2020, but without a consensus for what comes next in that state and beyond.

The California coalitions agree that the exam currently scheduled for July 28-29 shouldn’t merely be delayed until September, which was recently recommended as a “preferred option” by the state bar’s board of trustees, but rather dashed altogether because of lingering virus-related public health dangers.

Beyond that, their perspectives diverge.

A group of deans from 17 California law schools, including Berkeley, Stanford, and UCLA, are in favor of provisional licenses, which would allow new graduates to practice while overseen by a licensed attorney until they eventually take and pass the bar, as long as they meet other bar admission requirements. The group, which includes notables such as Berkeley Dean Erwin Chemerinsky, envisions that these individuals would practice for roughly two years before taking the exam.

The law student-led coalition, which includes more than 1,400 attendees and recent graduates, professors, and practicing attorneys argued this approach would be highly disruptive to young lawyers. Instead, they’re in favor of “emergency diploma privileges,” which allow law students to practice without passing the bar.

“It’s the only alternative that makes sense during a global pandemic,” said Donna Saadati-Soto, a third-year Harvard Law School student who co-leads the coalition.

Delays of any kind make little sense, because no one knows when the virus crisis will be over, said Saadati-Soto. Plus, some law students already have locked in full-time job start dates.

The movement to resurrect the once-widespread use of the diploma privilege stems from the notion that newly forged attorneys should have key roles to play in helping those most in need of assistance in the aftermath of the Covid-19 crisis, according to Saadati-Soto and the coalition’s co-organizer, Pilar Escontrias, a third-year student at the University of California at Irvine School of Law.

They believe that these new attorneys could also assist small businesses and unemployed people who may face legal challenges during this time.

Both the dean and student groups have been waging informal lobbying campaigns through opinion columns and letters to state Supreme Court justices. Saadati-Soto and Escontrias also have appealed to the court for a hearing to pitch their case, so far to no avail.

The court is set to meet privately Wednesday to discuss its many options—and will issue its guidance by the end of the month, said court spokesman Cathal Conneely.

From California to New York

Supporters of a diploma privilege say if enough states go that route, they could each benefit by giving reciprocity to one another.

Yet in the end, if states end up with a hodgepodge of licensing rules, with only some allowing diploma privileges, interstate reciprocity agreements waiving bar passage requirements could become very confusing to navigate.

It’s not just the Golden State arguing over the pros and cons of delaying the bar exam and granting diploma privileges. Some states, like Texas and Kentucky, are still committed to holding the exam in July. But both are holding out the possibility that they’ll go a different way.

Other states like New York, Vermont, New Hampshire, and Alaska, have announced that they’re delaying the July exam until Sept. 9-10.

About 15 jurisdictions in total have announced they are postponing the July exam, said Judy Gundersen, president of the National Conference of Bar Examiners. Nearly all of those jurisdictions have stated their plans to offer a bar exam sometime in 2020, she said.

In New York, officials stipulated earlier this month that some exam applicants may not get seats, meaning they might have to wait until the next exam is offered, given that it won’t be using the larger testing venues it usually does.

A New York task force had previously rejected the idea of a diploma privilege, stating that “the absence of an examination would create unacceptable risks that persons lacking minimum competence to practice law would gain admission in New York.”

At the same time, Utah on Tuesday became the first state to turn to a form of diploma privilege in light of the coronavirus. The April 21 order limits the program to those who complete 360 hours of work that’s supervised by an experienced attorney who has an active Utah bar license, among several other restrictions.

Since the mid-1800s, more than 30 states and the District of Columbia have offered a diploma privilege at one time or another, according to a paper published in 2000 by the Wisconsin Law Review. Wisconsin still allows a diploma privilege for those who graduate from law schools in that state.

(Updated the second-to-last paragraph to note that Utah on Tuesday had finalized its bar exam-related rule changes.)

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

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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