With Covid-19 cases surging again, jurisdictions are rethinking the safety of in-person bar exams. In April, Utah adopted a supervised pathway to licensure. Most recently, Maryland and the District of Columbia opted for a shortened online exam, while Washington and Oregon adopted a diploma privilege. Here is another option: License new lawyers based on their successful completion of substantial credit hours in closely supervised law school clinical courses.
Lawyering work that is supervised and assessed as competent by expert teachers can do what no current bar exam can. It can assure that a new lawyer is able to apply legal rules to real, unstructured problems and work with clients to achieve their goals.
With a clinical pathway, we can license candidates who have demonstrated their ability to represent clients effectively, not just those who are able to memorize rules and apply them to packaged hypotheticals. A clinical education pathway is a safe, effective alternative to the bar exam that protects both clients and applicants.
To control quality within this pathway, credits should count for licensure only if a clinic or field placement class was taught by a faculty member skilled in clinical pedagogy, gave the student direct primary responsibility for client representation, and required regular meetings between the student and a licensed supervisor. Qualifying courses must have identified specific learning outcomes, assessed multiple lawyering competencies, provided multiple opportunities for performance and feedback, and developed reflective lawyering skills.
In courses satisfying these criteria, graduates work with, and are assessed by, skilled supervisors. They repeatedly face the unpredictability and uncertainties of law practice, and they learn from those experiences. They learn to handle mistakes. They confront and resolve ethical issues in real life contexts.
They are assessed on the knowledge, skills, and professionalism that practicing lawyers repeatedly identify as critical: detailed knowledge of their practice areas, fact gathering, legal research, client counseling, written and oral communication, teamwork, cross-cultural communication, document drafting, responding to feedback, solving ethical challenges, case management, self-reflection, and working with diligence and integrity.
No paper exam, whether administered in person or online, can assess competence as completely as can an expert teacher supervising hundreds of hours spent working in law school clinics or field placements.
In ordinary times, this clinical path to licensure should require no fewer and perhaps substantially more than 15 credit hours—the equivalent of over 600 hours of supervised learning and practice. But in these extraordinary times, states and test-takers are scrambling to meet the demands of an ongoing pandemic. Just as NCBE is offering an online half exam to license this year’s lawyers, states could determine their own minimum number of credits for the clinical pathway to use this year.
Why a Clincal Pathway Makes Sense
In this moment, the clinical pathway makes sense for three reasons.
First, taking a traditional bar exam risks the health and lives of examinees, their families, and communities—a point brought home by the fact that some jurisdictions are requiring examinees to sign liability waivers.
Second, this year’s graduates face unique barriers to memorizing rules and practicing their test-taking skills. Many have no quiet study space or reliable internet connection. Many are coping with their own or family members’ pandemic-related health and financial crises.
And many are deeply affected by the murders of George Floyd, Ahmaud Arbery, Breonna Taylor, and others—reminders of the institutional racism that is so deeply embedded in our country and legal system. Graduates are compelled to learn to recite black-letter law just as they are struggling to work through the meaning of justice.
These burdens fall most heavily on graduates of color. Their communities have been disproportionately impacted by Covid-19. Most of all, applicants of color are being asked to study and perform while enduring constant reminders of discrimination—indeed the deadly risks--they face every day.
Third, a clinical path offers a key complement to other licensing routes. As we have previously suggested, jurisdictions could license some of this year’s graduates through supervised practice or participation in a Lawyers Justice Corps. But securing these placements may be difficult for some graduates. A clinical path redresses that inequity and allows more graduates to provide proof of their competence for licensing. Meanwhile, reducing the number of examinees who sit for an in-person exam will make those sittings safer for all. And each of these paths seems more likely to guarantee minimal competence than a pared-down online exam.
As we look to the future, there is good reason to consider a clinical pathway to licensure. The National Conference of Bar Examiners recently published two reports describing shortfalls in the current bar exam. The first reveals that practicing lawyers and judges believe the exam requires too much memorization, tests too many subjects, and overlooks essential skills.
The second, a practice analysis, shows that skills like critical thinking, writing, fact gathering, and researching the law are more important than knowledge of most doctrinal rules. Indeed, practicing lawyers rated knowledge of “legal research methodology” as more critical for entry-level practice than knowledge of most doctrinal subjects.
Legal research, fact gathering, and other essential skills are not tested on the current bar exam. Even critical thinking receives short shrift in multiple choice questions. Clinical work, in contrast, tests these skills and more. When the pandemic is at last behind us, law schools and bar examiners should rethink the role of clinics and supervised practice in educating and licensing lawyers.
For now, we need a safe and sure road to licensure for this year’s graduates. Adopting multiple pathways, including this clinical education pathway, is the best way to protect candidates, clients, and communities.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Claudia Angelos is a clinical professor of law at New York University School of Law.
Andrea A. Curcio is a professor of law at Georgia State University College of Law.
Marsha Griggs is an associate professor of law and director of academic support and bar passage at Washburn University School of Law.
Deborah Jones Merritt is a distinguished university professor and the John Deaver Drinko/Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law.
All four authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 11 scholars who have studied and written about the bar exam, licensing, and legal education for many years.