Our nation faces two crises: the Covid-19 pandemic and a painful reckoning with institutional racism that is long overdue. Lawyers cannot cure either, but we can step up to help repair the damage done by both. Some of us are already fighting on the front lines of these efforts, but lawyers need to do more. We need a Lawyers Justice Corps.
ABA President Judy Martinez recently declared, “African Americans were enslaved in our country. They bore the brunt of the horrific racism of Jim Crow and Klan terrorism. And violence continues today, as does racism through laws that unjustly and disproportionately impact people of color. Lawyers have a special responsibility to address these injustices.”
Martinez has also pointed out that “thousands of Americans will need help” during the Covid-19 pandemic, “with legal issues including lost jobs, evictions, insurance claims, family emergencies and obtaining government benefits they need to survive.” We can add prisoners and other institutionalized people to the list of people in dire need of help; the rapid spread of Covid-19 has made confinement dangerous to all and fatal to some.
Like AmeriCorps, But Focused on Legal Needs
We propose a Lawyers Justice Corps to help close this gap in legal services. The Corps would provide a structure for weaving together opportunities to serve unmet local needs for legal representation and assistance. Think AmeriCorps, but focused on legal needs. Recent law graduates would join the Corps by committing to a year of work. Public service and advocacy organizations would select applicants and commit to providing supervision for the work of the Corps member for that year.
Participants in a Lawyers Justice Corps would be paid for their professional services at the entry-level salary for the legal organization where they work. Support for new positions might come from expanded state and federal funding for legal services to meet pandemic- or justice-related needs. Funding could also come from bar association foundations, philanthropies, and law firms.
Law schools, which have community contacts with public service organizations, should assist in developing placement opportunities and funding sources for the program.
A New Path to Legal Licensing
A Lawyers Justice Corps created now could also respond to another crisis within our own profession: the difficulty of maintaining the traditional path to law licensing during the pandemic.
Because of the risk of infection and limits on large gatherings, many states have deferred the July bar exam until September—but no one knows if testing can safely go forward at that point. Some states are limiting seats at testing sites, turning away applicants. Some are planning online exams. One state, Utah, has announced licensure after a period of supervised practice. Many states are still searching for a viable “plan B” if testing is not possible this year.
Service in the Lawyers Justice Corps offers a solution: law graduates who successfully provide supervised legal services for one year through the Corps would be licensed without being required to take a bar exam.
These graduates will demonstrate their competence while working under supervision to serve real clients. Using the Corps as a pathway to licensure simultaneously responds to the challenges facing our licensing system and serves society by building a cadre of lawyers to address the growing need for legal services for the many harmed by Covid-19 and racial injustice.
The Corps would satisfy the same purpose as the bar exam: protecting the public by licensing only those who possess the minimum competency needed for practice. Instead of answering multiple choice and essay questions about hypothetical clients, Corps members would address the more challenging, nuanced needs of real clients.
If successful, they would be certified by their supervising attorney as competent in providing legal services in compliance with the rules of professional conduct.
Supervised public service for Corps clients offers a real-life performance test of a candidate’s lawyering knowledge, skills, professionalism, and judgment—including key aspects of competence that are not tested on the current bar exam. After demonstrating all of these competencies, candidates would be licensed to practice in the jurisdiction where they performed their public service.
The Corps would build on the indispensable work of Equal Justice Works and other organizations that support public service fellowships. By offering licensure to these fellows, as well as to other entry-level public service attorneys, the Corps would enhance the attractiveness of these positions.
Both Corps hosts and clients would benefit from having new hires begin work immediately without waiting for a bar exam to be available. Nor would Corps members have to interrupt their client service by taking off significant time to study for and take a bar exam. Clients and hosts would get competent, sustained work from Corps lawyers.
Jurisdictions adopting this proposal will need to expand their supervised practice rules to accommodate practice by Corps members. This is already happening in many states as a way of permitting law graduates to practice while awaiting licensure. But instead of providing merely provisional licensing, the proposal creates an ongoing pathway to licensure for those who successfully complete one year of supervised public service.
Many graduates would not choose the Justice Corps route to licensure. Similarly, during years when bar exams are more readily available, some employers may want their attorneys to seek more rapid licensure through the exam. That traditional path to licensure will remain available. But this new path can extend beyond the immediate crisis of the 2020 pandemic, helping address the longstanding and huge unmet legal needs of disadvantaged and marginalized populations.
People need legal help, today more than ever. A Lawyers Justice Corps is a modest way to enlarge access to justice and provide immediate, uninterrupted legal services to more of the most vulnerable among us.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Carol L. Chomsky is a professor of law, University of Minnesota Law School.
Joan W. Howarth is the interim associate dean for experiential legal education and distinguished visiting professor at UNLV-William S. Boyd School of Law. She is also dean emerita at Michigan State University College 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.