Bloomberg Tax
May 21, 2020, 8:01 AM

INSIGHT: Covid-19 and Bar Exams—ABA’s Proposal Strikes a Needed Balance

Rebecca White  Berch
Rebecca White Berch
Chief Justice, Ret., Arizona Supreme Court
Ruth V. McGregor
Ruth V. McGregor
Chief Justice, Ret., Arizona Supreme Court

We recognize the serious consequences faced by graduating law students if states are not able to administer the bar examination in late July. The dilemma is how to protect the public and future clients while also assisting law graduates who may suffer professionally and financially from the delay in licensure caused by the Covid-19 pandemic.

We agree with the statement from the recent American Bar Association (ABA) resolution on this topic:

There “can be no doubt that canceling or postponing a bar exam will significantly affect the lives, careers, and immediate personal plans of law graduates, their families, and the lawyers or other organizations with whom they might otherwise practice…. This delay may lead not only to tangible financial and family hardship, but disruption in the plans and operations of the organization and clients for whom these law graduates may already be planning to work.”

In response to this dilemma, commentators have proposed solutions to enable recent law graduates to practice. These solutions range from proposals like the ABA’s for limited, supervised practice on a temporary basis until the bar exam is next administered, to proposals to waive the bar exam requirement entirely for the class of 2020; the latter is widely referred to as emergency diploma privilege.

As former regulators—Chief Justices of state supreme courts and chairs of the ABA Council of the Section of Legal Education and Admissions to the Bar—we support the ABA proposal.

Diploma Privilege Not Enough

Diploma privilege bases licensing solely on the awarding of a law degree and allows all students who graduate from an ABA-approved law school to be licensed without taking and passing a bar exam.

Currently, only Wisconsin has diploma privilege, and it is limited to graduates of the state’s two ABA-approved law schools. To qualify, Wisconsin law students must complete a curriculum prescribed by the Wisconsin Supreme Court’s rule for admission to the bar: a minimum of 60 semester credits in an enumerated list of about 30 legal subjects.

Further, the students must satisfy a 30-credit rule, which requires completion of at least 30 of the 60 semester credits in 10 subjects. The rule identifies all the subjects that must be taken. Thus, the Wisconsin rule appears to have major influence over law school curricula and student choice.

Diploma privilege, without the added safeguards of a Wisconsin-type rule, is now being promoted in other jurisdictions to allow recent law school graduates to practice without taking the bar exam. Such a change would make it the responsibility of each law school to decide whether its graduates have sufficient proficiency in the necessary knowledge, skills, and abilities for licensure—without the state high courts that are responsible for regulation of the profession having had any oversight of the curriculum, as they have in Wisconsin. Such a rule, in effect, allows the law schools to determine that all of their own graduates are minimally competent to practice law upon graduation.

Bar Exams Are Needed Professional Licensing Exams

The bar exam is specifically designed to test the basic knowledge, skills, and abilities needed to practice law. It is carefully developed by law professors, lawyers, and judges who serve on the National Conference of Bar Examiners’ (NCBE) test development committees, and it results in reliable scores for objectively making decisions about whether individuals are or are not qualified to provide legal services.

Almost every profession has a licensing exam. Doctors, nurses, accountants, engineers, pilots, and members of other professions are required to pass licensing exams. The bar exam, like other licensing exams, has been carefully developed following professional standards for high-stakes exams (i.e., the Standards for Educational and Psychological Testing developed jointly by the American Educational Research Association, American Psychological Association, and the National Council on Measurement in Education).

Do the circumstances surrounding the pandemic justify removing long-standing public protection mechanisms like the bar exam? Although the pandemic has created a desperate need for more health-care professionals, and recent and soon-to-be health-care graduates are being permitted in a few jurisdictions to practice temporarily under supervision, there has been no call for eliminating the licensing exams for those professions. Protection of patients remains paramount in the world of health care.

Lawyers serve in a fiduciary role representing clients in matters that can involve personal freedom, custody of children, financial security, and public health and safety, to name just a few examples. It is essential that those who are given this important responsibility are vetted, by a reliable and consistent method, to meet minimum standards just as health-care professionals are.

The resolution adopted by the ABA Board of Governors offers a way forward that both serves student needs and protects clients. The ABA recommends that states temporarily license graduates to work under the supervision of licensed attorneys until the graduate can take and pass the bar exam in that state.

This is a reasonable solution to a serious dilemma—a solution that balances concern for recent graduates with the need for public protection. In fact, under this plan, graduates could be temporarily licensed well before they would have received July bar exam results (which typically occurs anytime from mid-September to mid-November, depending on the state). This approach permits graduates to begin practicing in the summer, as soon as supervision can be arranged, and continue practicing until bar exam results are released (whether the exam is in July, in the fall, or in February 2021).

The ABA has been on record in opposition to diploma privilege since 1921, and its position has not changed. One of the founding principles of the ABA is public protection, so this position is wholly consistent with its long-standing principles and history. The working group that produced the ABA resolution was composed of legal academics, ethics experts, and ABA leaders. The NCBE did not play a role in the drafting of the resolution or its presentation to the ABA Board of Governors. However, once it was adopted, the NCBE endorsed this approach as a workable and appropriate response.

Law students, law schools, the profession, and state supreme courts are all under increasing pressure to find workable solutions to the problems created by Covid-19 for the class of 2020. All are working diligently to find those solutions. However, this is not a time to hurriedly discard processes and practices that have served important public protection purposes for many years.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Judge Rebecca White Berch (Ret.) was Chief Justice of the Arizona Supreme Court from 2009-2014 and chair of the Council of the ABA Section of Legal Education and Admissions to the Bar from 2015-2016.

Judge Ruth V. McGregor (Ret.) was Chief Justice of the Arizona Supreme Court from 2004-2009 and chair of the Council of the ABA Section of Legal Education and Admissions to the Bar from 2007-2008.

This Insight was written in our personal capacities and not on behalf of any court or organization.