The push to allow lawyers to practice without passing the bar exam in Washington, D.C. has gained some heavyweight support.
Former Acting U.S. Solicitor General Neal Katyal and Sean Marotta, another Hogan Lovells Supreme Court practice group partner, urged the D.C. Court of Appeals on Wednesday to adopt a “diploma privilege.” The move, which would allow certain law school graduates who have not passed the bar to begin practicing law in D.C., is needed at a time when in-person bar exams are unsafe because of Covid-19, and online exams are encountering technical difficulties, Kaytal and Marotta said in a letter to the court.
“In light of COVID and the impossibility of giving a safe exam, bar examiners need a more just solution,” Katyal tweeted yesterday afternoon.
As a lesser alternative, Kaytal and Marotta asked the court to expand the District’s provisional licensing program, which would allow grads to practice temporarily, and with other conditions attached.
The push for diploma privilege in D.C. comes as recent law school grads around the country are preparing for online bar exams set for early October in D.C. and 18 states, including New York and California.
A group of deans from Washington’s six law schools wrote a separate Aug. 12 letter to the court, also asking for diploma privilege to be granted, but only to graduates of their schools—including Georgetown University Law Center, American University Washington College of Law, Howard University School of Law, George Washington University Law School, the Catholic University Columbus School of Law, and the University of District of Columbia David A. Clarke School of Law—or to grads from schools outside D.C. who can prove they have job offers lined up in the District.
“Given the dislocations society is facing right now, and will continue to face in the foreseeable future, there is simply no way to have a bar examination, whether administered in person or online, truly identify those candidates, and only those candidates, who can demonstrate a level of knowledge consistent with admission to the bar,” the deans wrote.
D.C.'s top court is currently weighing petitions, including at least one from a group called Diploma Privilege for D.C., to allow for a form of privilege. A 14-day public comment period recently ended, making it likely that the court will decide soon whether to add diploma privilege, or a form of temporary licensing, to the licensing mix.
Court spokeswoman Leah Gurowitz declined to comment on the court’s next steps.
Marotta predicted that D.C. will keep its planned Oct. 5-6 online bar exam, even if it grants an alternative solution like diploma privilege. This is because those who pass the online bar in some jurisdictions, like D.C., have agreed to reciprocity with 10 states so far, including neighboring Maryland, which would allow those who pass the online exam in one of those places to practice in the others, so long as certain conditions are met.
Marotta said the fact that many younger attorneys are facing an “existential crisis” because of Covid-19 prompted him to weigh in on the issue, though he’d be less likely to comment on debates over diploma privilege outside D.C. where he practices.
Diploma privilege is admittedly an imperfect answer, he said. “But you have to figure out the best of the bad answers. Diploma privilege is clearly the best bad answer,” he said.
Since the pandemic struck, Utah, Washington State, Oregon, and Louisiana have instituted different forms of diploma privilege.