Heat and light over the Utah bar diploma privilege proposal

I wrote about Utah’s proposal to allow a modified version of “diploma privilege” for graduates of chunk of law schools. I don’t particularly support or oppose the proposal, but I pointed out some places where it makes sense and others where it doesn’t. But the reaction to it seems quite strong—oddly opposed in a couple of dimensions. But the opposition, I think, is too often more heat than light.

Some critique the plan, calling the exception too narrow. Take this statement from commentary in California:

“We vehemently disagree with the Utah proposal as it only benefits a small percentage” of graduating third-year law students, said Escontrias.

The Utah rule would only allow the diploma privilege to those who graduated between May 1, 2019, and June 30, 2020, and only from American Bar Association-accredited law schools “that had a first-time taker bar examination passage rate in 2019 of 86%" or higher.

As my post mentioned, about 1/3 of all law schools qualify their graduates to earn diploma privilege in Utah in 2020 (if the proposal is enacted). Additionally, by my calculations, that’s about 42% of graduating law students. One is hard-pressed to call that “a small percentage.” Finally, by my (rough!) reckoning, it would extend to at least 90% of those who were registered for the Utah bar exam this July, if not more—hardly a “small percentage” (although, of course, it’s not extended to any students who registered for bar exams in the other 49 states or Puerto Rico). Despite the rule that “only” extends to certain populations, then, this rule is beneficial to the vast majority of prospective Utah attorneys graduating from law school this year.

Then again, some call the exception too broad:

I think this is the [Utah] Supreme Court’s way of making it way to[o] easy to become a licensed attorney in Utah, which goes against everything the Utah State Bar has stood for,” said Emy Cordano of COR LAW.

…

“I see no reason why they should get a free pass,” Cordano added. “The bar exam is the supreme test of whether or not you are going to make it as a lawyer in the courtroom.”

Remarks like these (and there are others) sound much more like hazing. For instance, in an extraordinary circumstance where the bar exam will be postponed, it’s hard to call accommodations given that practice as making it “too easy”—they are, after all, admittedly, accommodations, not standard rules. Additionally, it’s not “easy” or a “free pass”—students still have to graduate law school, and still must complete supervised practice, and still must pass the MPRE and the character and fitness review. It’s a pass on one component of access to the practice of law.

And it’s hardly the “supreme test” of whether you “are going to make it” “in the courtroom.” (Note the litigation bias—lots of attorneys don’t spend their time in the courtroom.) That, I think, is left to clients to determine after one has practiced. The bar exam likely keeps out some attorneys who are at a higher likelihood of engaging in misconduct. But it’s not some guarantee of quality.

All in all, then, there are some increasingly heated disputes. I do hope, however, that bar licensing authorities, including Utah, look closely at the present circumstances, tailor solutions for those present circumstances, and consider the more long-term solutions appropriately in the years to come.