The District of Columbia has become the fifth jurisdiction to grant certain U.S. law school graduates to be licensed to practice law without taking the bar exam.
The D.C. Court of Appeals in a 4-3 order issued Thursday approved an “emergency examination waiver” to the biannual test for lawyers. The split decision comes amid ongoing debates over diploma privilege as the coronavirus created chaos around bar exams across the country.
D.C. is already offering an online bar exam on Oct. 5-6, as well as a provisional licensing program that allows grads to practice temporarily and under supervision, before taking the bar. But the court said provisional licensing doesn’t address all of the pandemic-related problems for law grads.
“The court therefore has determined, on a one-time basis, to permit certain recent law- school graduates to be admitted to the D.C. Bar without taking or passing a bar examination,” the court said, “under a number of conditions intended to safeguard the public’s interest in the competence and good character of those who are permitted to practice law in the District of Columbia.”
Law school graduates approved under provisional licensing rules do so under the condition that they still must eventually take and pass the bar to stay licensed. Those who utilize the waiver program, known elsewhere as diploma privilege, would not need to take the test.
The waiver program in D.C. applies only to those who meet certain conditions. They need to have graduated from American Bar Association-accredited law schools in 2019 or 2020 and already be signed up to take D.C.’s October test. Applicants can’t already be admitted to a bar in a different jurisdiction, have failed a bar exam, or had a bar application denied, according to the order. They also need to practice for three years under the direct supervision of an enrolled, active member of the D.C. Bar who in turn also must meet certain conditions.
Judges in the minority, who included the court’s chief, Anna Blackburne-Rigsby, argued in a separate statement that the case hadn’t been made for a bar exam waiver.
“We understand that the COVID-19 pandemic has created unprecedented circumstances, but we believe that the other steps the court has taken (offering a remote examination, negotiating reciprocity agreements with twelve other jurisdictions to accept the scores from the remote exam, and expanding the opportunity for temporary supervised practice) are sufficient accommodations,” the judges wrote.
The group that petitioned the court, Diploma Privilege for D.C., tweeted in response to the order, “DC fam, we are hopeful that the order helps someone. That’s what advocacy means. But some of the provisions are disappointing.”
The court previously hinted that it was moving toward offering a diploma privilege-style option in a Sept. 15 order.
To date, four states have allowed for diploma privilege as a response to the Covid-19 crisis, including Oregon, Washington State, Utah, and Louisiana.