Longtime readers of this blog know my frustration over conflating arguments in the debate over the bar exam. And it’s happening right now in a very public (and heated) way about diploma privilege. In my view, there are two very different arguments about diploma privilege that are too quickly conflated. (Reader, beware: much hedging and musing ahead….)

*

The first is a specific concern related to the coronavirus pandemic and administration of the summer/fall 2020 bar exam. That is, given the complications of administering a largely-indoor exam over two days to hundreds or even thousands of strangers who have been asked to travel and congregate together, perhaps alternatives should be considered. Diploma privilege is one such consideration. There are many alternatives, but it’s worth considering cohorts of test-takers—for instance, the privilege might not extend to out-of-state graduates, graduates of foreign law schools, of state-accredited law schools, of practicing attorneys in other states, or those who’ve previously failed the exam. Nevada, for instance, looking at alternatives, will put an online twist on an old practice-oriented format. I’m still skeptical of how online administrations will work (or, really, just about any alternative system!), but several states are moving toward similar formats.

It’s worth noting that many bar licensing authorities simply failed to think adequately, even in small ways, last spring about what might happen this summer. I wrote back in March that postponement seemed like a suboptimal choice because, as I noted, “it’s not clear when this pandemic will end.” And given the relationship between law school grades and the bar exam, I thought a minimally-disruptive alternative like substituting law school work product for the bar exam might be a good option. (For what it’s worth, no one’s asked me about this idea….)

A few states have already moved in the direction of diploma privilege. Utah’s strikes me as the most sensible so far of the versions of “diploma privilege,” if somewhat rough justice—it covers the vast majority of first-time test-takers in the state and many from out-of-state schools, even at the expense of some cohorts of would-be test-takers, but that’s what rough justice does here. Utah’s proposal has, I think, received some unfair criticism both as too generous and as too restrictive. Oregon’s strikes me as somewhat more curious in its rough justice but in line with Utah’s. Washington, in contrast, strikes me as potentially overbroad with the admission of a number of prospective test-takers who’ve failed the bar multiple times, but, as I noted, perhaps can be mitigated with oversight in the years to come.

In my view, the more honest assessment is this: “Taking a traditional written bar exam in a pandemic is not feasible. Any new bar exam system—online, or a new kind of test, or whatever it might be—is going to cause some uncertainty and problems. A rule like diploma privilege for first-time test-takers of ABA-accredited law schools might result in some small additional long-term risk of some members of the public receiving representation from attorneys who are not qualified to do so. But the alternatives are too costly—postponement has already failed, for instance. And given that the vast majority of test-takers pass the bar exam [depending on one’s state, of course!], diploma privilege is reasonable measure at this time [for a particular cohort, as so defined]. Let the state bar look at this cohort closely in the years to come to try to avoid any malpractice, attorney discipline, or other concerns that might arise.”

To me, that ought to be persuasive in many (not all!) jurisdictions. It’s honest, it concedes costs, it identifies the trade-off, and it tries to cabin the scope. It could be paired with other things like supervised practice as Utah is doing or as advocated elsewhere. Advocates of emergency diploma privilege tend, in my view, to overstate the historical comparisons, but emphasis on the emergency, I think, can go a long way.

In my view—and, my sense is, I’m an outlier among many—I think licensing authorities are genuinely trying to do the best they can, as divergent as the approaches might be. Yes, some are going to be more ham-handed than others or less empathetic than others. But I’m not so quick to ascribe ill motives or malice to licensing authorities tasked with many competing concerns and high degrees of uncertainty.

*

The second is a general concern that diploma privilege is superior to the traditional written bar exam. My own views on the traditional written bar exam are decidedly mixed.

I think the bar exam today reflects a fundamental distrust of law schools (that law schools, either specific schools or a cohort at given schools, admit, retain, and graduate too many students who lack the minimum competence to practice law) and the American Bar Association’s accreditation practices (the belief that they are too loose and fail to enforce admissions, retention, and standards, perhaps in part due to Department of Justice pressure). But I’ve suggested there’s trust in Wisconsin (and just two schools), and there might be opportunities for law schools and state bar licensing authorities to start developing that trust with one another again. On the other hand, the bar exam closely tracks law school performance, and performance on the bar tracks ultimate misconduct rates, which suggests a close consideration of what the alternative mechanisms will look like before switching admissions practices.

Frankly, proposals like Utah’s and Oregon’s suggest traits I’ve looked at before in trust between bar licensing authorities and law schools: in-state trust of two or three schools with already high passage rates (typically well over 80%) on the first attempt, and some trust of highly-performing out-of-state schools. It’s also a very different model than, say, Wisconsin, which has long required a series of state-specific courses as a condition of benefiting from the diploma privilege. Is the object of law school state-specific knowledge? Or general legal competence? Wisconsin’s is more the former, Utah’s and Oregon’s emergency proposals more the latter.

It is also, I think, very different to think of a how-to-handle-an-emergency diploma privilege, and ex-ante-new-bar-licensing-regime diploma privilege. The latter—the long-term change—would, I think, require a years-long phase in so that law schools could ensure they’ve adopted the admissions, retention, and graduation standards that the state bar prefers.

Statements claiming that the bar exam does “nothing,” then, or is “worthless,” or should be “abolished,” are, in my view, really a much deeper, and longer, debate—including what would replace it. I think it would require this “state-specific v. general competence” question to be addressed. It would require schools to reconsider admissions, retention, and graduation standards. It would reduce the role of the ABA and give greater scrutiny to what the ABA deems “compliant”—or at least turn the ABA into heeding state bar licensing authorities more closely. It would reconsider what post-graduation CLE and discipline looks like. It would also reexamine the role of character and fitness examinations (also deeply questioned in the academic literature) and the MPRE.

In short, I’m not a particular fan of “immediate diploma privilege now” because I think the bar exam still serves an important role in constraining law schools in their admissions, retention, and graduation standards. I think the bar exam isn’t necessarily the test I’d design—heavy on rote memorization and offered only twice a year—but I think replacing will take some effort. And any new program, even if instituted today, would likely only begin with the cohort graduating in the Class of 2024, after a year of admissions policies are in place with three years of retention and graduation standards for this cohort.

Now, I don’t say this as a desire to preserve the status quo by kicking the can down the road, postponing indefinitely to “study” issues to reach no resolution, and so on. It’s just to say—and I’m not a part of any of these discussions!—that a lot of thoughtful people have been thinking about a lot of thoughtful alternatives (versions of diploma privilege among them, but supervised practice, “bridge to practice,” etc.) for some time, and maybe state bar licensing authorities will finally get serious about these alternatives after this pandemic.

And it’s a reason I think this big debate is very different from the emergency debate. I think the bar exam has a place. I think it could be replaced. But that all requires a very different and much more structural reorientation of legal education and the state bar licensing regime than the pressing and temporary exigencies of administering a bar exam during a pandemic.

*

One more point. This is a debate over license standards—should a law license be conditioned on passing the bar exam? Graduating from an ABA-accredited school? Hours of supervised practice? One might have a different debate entirely about whether a bar license itself should be required.

Licenses, I think, can serve a public protection purpose. After all, if you may be imprisoned, we may think the average consumer (here, criminal defendant) lacks the ability to engage in the assessment of the quality of a self-described lawyer, at least when compared to the fairly catastrophic outcome of having incompetent representation. On the scale of “licenses for hair braiding” to “licenses for performing open heart surgery,” maybe law is closer to medicine than beauticians.

But we can still think about legal reforms where we don’t require a full J.D.-plus-bar-passage to do some legal services. Washington State has experimented (very modestly) with this for certain family law disputes. Utah and Arizona are moving toward narrowing the definition of “unauthorized practice of law” to allow more limited opportunities to engage in law-related activities. And maybe we’ll get to a point where passing the bar is not required to practice all forms of law, and there can be licensed and unlicensed practice, much like, say accounting.

Conditioning practice of law on passing the bar exam is, maybe in some ways, less onerous than conditioning practice of law on completing three years of education at an ABA-accredited school. In most states, however, you have to do both; in some states, you can complete alternative forms of education.

Maybe this debate will also spill over into our discussions about what the “practice” of law is, and who should or should not be excluded from that. Diploma privilege is (probably) one way of broadening opportunities for the practice of law. Other ways might follow.