A survey of the broad scope of the proposed New York diploma privilege law

A10846 is a diploma privilege bill working its way through the New York legislature. After unsuccessful postponements and questions about how an online version would work, there’s been renewed urgency to help license attorneys in one of the largest and most significant legal jurisdictions in the United States.

I’m sympathetic to some calls for diploma privilege in some jurisdictions in the current environment—but I do think some tailoring is appropriate, as I’ve written. While Washington’s diploma privilege struck me as potentially overbroad, the current text of A10846 far exceeds it, and it’s worth looking at its scope—and what might be amended out of the bill later.

New York does not have a particularly difficult bar exam. And one could look at its July 2019 statistics as a window into what rules for a temporary diploma privilege might look like. Among first-time test-takers from ABA-accredited schools, 86% passed—4748 out of 5517 test-takers. That’s a high pass rate. Of course, it means 769 didn’t pass, and a diploma privilege for all first-time test-takers from ABA-accredited schools would sweep them in, too. As emphasized in my previous writing, however, maybe that’s a tradeoff New York is willing to make, and maybe one could have more robust follow-up of this cohort to try to minimize misconduct or malpractice.

If one took a broader view, more like Washington, to all test-takers, first-timers or not from ABA-accredited schools, it would bring in another 990 test-takers from the July 2019 bar exam. Only 28% (272) of those repeaters passed, so it would add 718 graduates who failed the bar exam multiple times. Again, maybe a tradeoff worth taking in the larger picture.

New York’s bill goes further still. It would extend to “any person who has graduated or will graduate from an American Bar Association accredited law school or who would otherwise be eligible to take the New York state bar examination.” (Emphasis added.) That last clause is significant because New York has a significant cohort of foreign-educated attorneys that take its bar exam each year.

In the July 2019 exam alone, for instance, 2398 foreign-educated test-takers took the bar exam for the first time, but just 1266 passed, a 53% pass rate. Another 1161 repeated the bar exam, and 250 passed, a 22% pass rate. That means over 2000 foreign-educated test-takers failed the July 2019 bar exam. All would be admitted under this rule.

I’ve pointed out in the past how non-JD legal education is on the dramatic rise in American law schools, and how foreign-educated LLM degrees are on the rise. But bar passage rates remain low, likely in part due to language barriers. These test-takers remain a significant cohort of overall test-takers.

Unlike other states that have had temporary “emergency” diploma privilege rules, New York’s is not limited to those who previously registered for the July 2020 bar exam. It extends to all prospective attorneys, through September 30, 2021 (or until the end of the Covid-19 disaster, whichever is later), who satisfy the other requirements, like character and fitness requirements.

That could potentially sweep in many more attorneys who’d otherwise be eligible but have failed the bar exam in the past—they might be in New York (the law is limited to those “who intend[] to primarily practice in the state of New York”) and practice. If they complete “100 hours under the supervision of a permanently admitted attorney,” they would be eligible for permanent admission to the bar. (One hundred hours is two and a half 40-hour weeks.) That’s much lower than, say, Utah’s 350-hour supervised practice requirement.

In short, if enacted as written, it’s possible to see thousands of new attorneys in New York—perhaps much more than the equivalent of the 3500 who failed the July 2019 bar exam if one looks at the scope of the rule that might extend to other would-be attorneys who could otherwise meet the rule in the next year.

It’ll be worth seeing if New York enacts the law as written or amends it. Maybe it won’t be enacted at all. But if it is, it’ll be an even more significant experiment in attorney licensing than Washington’s rule, and emphatically one to watch.