New York and Pennsylvania are the latest states to adopt provisional licensing options for recent law school graduates who will now be able to start practicing on condition that they ultimately take and pass their state’s bar exam and fulfill other requirements.
They’re among a growing list of states—including Georgia and Arizona—that in recent weeks have granted provisional, or temporary, licensing options as a response to the COVID-19 public health crisis. Many of these states at the same time have delayed their July 28-29 exam dates until September.
“Our goal is to conduct a safe administration of the bar examination as soon as possible and to facilitate candidates’ swift admission to the bar thereafter,” Janet DiFiore, Chief Judge of the Court of Appeals and of the State of New York wrote in an order issued late Tuesday. “In the interim, the temporary authorization program should provide some assurance and stability for law students and recent law graduates eager to join the workforce.”
On Monday, the Supreme Court of Colorado said it too was granting provisional admissions, subject to bar passage at a later date.
The Pennsylvania and New York actions are effectively a rejection of the “emergency diploma privilege,” option that would allow law school grads to skip the bar exam entirely, which has been favored, and promoted diligently by coalitions of law school graduates and professors.
Utah is the only state so far to grant a type of diploma privilege in response to the crisis.
The Texas Supreme Court also announced on Wednesday that it will hold its currently scheduled July exam, but will also offer the exam in September. Texas also has relaxed how long its existing supervised practice program, which has some overlap with recently enacted provisional licensing efforts, will be in effect to accommodate the later exam date.
New York’s program will provide temporary authorization to first-time takers of the bar exam, including J.D. and LL.M. candidates, regardless of when they graduated, according to DiFiore’s order. The program is intended to “carry” qualified candidates through their swearing-in dates, so long as they pass their first bar examination no later than 2021.
Meanwhile, Pennsylvania officials announced that like New York, they’re also delaying their bar until Sept. 9-10, and have also decided to pursue a provisional licensing program through a “supervised-practice” order.
Through that program, the law grads will be able to counsel clients until the next opportunity they have to take the bar, and “appear for any activity subsumed within the practice of law,” all while being supervised by experienced attorneys.
“We got a lot of correspondence on this, more than we have every seen,” said David Fine, chairman of the Pennsylvania Board of Law Examiners. He said his group was targeted by law students who mostly advocated for diploma privilege, law school deans who argued for provisional licensing, and other individuals and groups.
One theme emerged among many of the letter-writers, whether they favored provisional licensure or diploma privilege, said Fine—a Harrisburg, Pennsylvania-based partner with K&L Gates—the urgent need to get recent law school grads working as soon as possible, especially important currently to be able help clients harmed by the pandemic.
“I like to think we’ve struck a good balance,” Fine said.
States from across the country, including New Jersey, Wyoming, Arizona, Georgia, and Tennessee, have recently implemented similar new programs or expanded existing rules, whether they’re called “provisional licensing” or “supervised practice.”
Connecticut delayed its July exam to the second two-day postponement option offered by the National Conference of Bar Examiners, Sept. 30-Oct. 1, unlike nearby New Jersey and New York, which chose the earlier September window. Historically, the three states have scheduled their exams in conjunction with one another.
Supporters of both provisional licensing and diploma privilege had lobbied California officials through newspaper opinion essays and targeted letters, only to see their respective hopes dashed on Monday when its Supreme Court rejected both ideas in favor of simply postponing the exam until September.
Emergency diploma privilege proponents said their option was fairest to students in need of as many career options as possible, without having to worry about taking a delayed exam. Some pointed to the positive example of Wisconsin, which for many decades has offered a permanent privilege program for the graduates of its two law schools.