Even in Time of Crisis, Hold Fast to Bar Exam | New Jersey Law Journal: We do not think the current crisis is the appropriate time to “reinvent” the primary gate-keeping function for entry into the profession.
by the Editorial Board
Each day during this global catastrophe, another anchor by which we secure our cultural, social or civic institutions comes loose, and we must decide whether to attempt either to reattach it or else reinvent it. New Jersey, New York and several other states have cancelled their July 2020 administrations of the bar exam due to the coronavirus epidemic, possibly to be rescheduled for September, if conditions permit.
Our Supreme Court recognized that, “without a means to pass the bar and obtain a law license, qualified law school students who expect to graduate this Spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” This previously unimaginable situation prompted law students and legal academics to suggest a radical alternative: waive the requirement of passing the bar exam for 2020 applicants and enact an “emergency diploma privilege” that would grant an immediate license to practice. Loosely modeled after the 150-year-old practice in Wisconsin that permits J.D. graduates of that state’s two law schools who have also completed 60 course credits in certain prescribed subjects to receive a license without sitting for the bar exam, the “diploma privilege” was originally instituted to encourage entry into the profession through formal legal education rather than the then prevailing method of “reading law” through apprenticeships. The 2020 version would extend the privilege to graduates of any of the 200+ ABA approved law schools and would drop the specific curricular requirements.
In The Bar Exam and the COVID-19 Pandemic: The Need For Immediate Action, published on March 22, 2020 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559060), 11 legal academics make the argument for implementing an immediate diploma privilege. It argues that licensing 2020 law school graduates and skipping the bar exam is justified by the disparate impact the delay in licensing would have on providing legal representation to particularly vulnerable communities. Almost half of new law school graduates take jobs with government, public-interest organizations or small law firms of 25 lawyers or less. The paper further notes: “These … employers, notably, tend to serve the needs of low-income individuals, middle-income individuals, and small businesses. Disrupting the flow of new lawyers into these workplaces will undermine service to groups that already struggle to obtain services from our legal system.”
While focusing on providing service to prospective clients, the paper also advocates for the “mental health of the bar candidates hoping to join our profession this year, who are already suffering educational, family, and financial disruptions.” It continues that, “As stewards of the legal profession, we need to provide humane options for these new graduates, at the same time that we guarantee a supply of new lawyers to serve pressing client needs.”
Respectfully, while we share the authors’ concern for the disruption caused by the coronavirus pandemic, both to the public seeking legal services and to 2020 law school graduates, we do not think the current crisis is the appropriate time to “reinvent” the primary gate-keeping function for entry into the profession. While, as with any metric of human endeavor, we can certainly debate particular flaws in the current bar exam system, its basic function to establish at least a presumption that someone is competent to practice law—in whom clients may entrust the most essential aspects of their lives and affairs—remains an essential prerequisite. The moment of ineluctable accountability and responsibility to perform beyond what is convenient and learn beyond what is easy, is one that must be experienced by every person who is permitted to practice.
Our Supreme Court wisely chose a less drastic alternative, but one that demonstrates appropriate flexibility in these times of dire need. The court expanded slightly on existing Rule 1:21-3, and will permit 2020 law school graduates who have not already sat for the bar exam to practice temporarily, i.e. until they are able to sit for the bar exam, but only under the supervision of a licensed attorney who has been licensed to practice for at least three years. The remainder of Rule 1:21-3 is unchanged, which permits recent graduates employed by a nonprofit organization providing legal assistance to persons of low-moderate means which is affiliated with an ABA-accredited law school the limited ability to appear in certain cases before the state courts and agencies without immediate attorney supervision. They may also appear before those same tribunals in conjunction with a legal services or public interest organization or law school clinical or pro bono program, or an agency of municipal, county or state government certified under R. 1:21-11(b)(3).
Our Supreme Court has repeatedly stated that “the determination of whether someone should be permitted to engage in conduct that is arguably the practice of law is governed not by attempting to apply some definition of what constitutes that practice, but rather by asking whether the public interest is disserved by permitting such conduct. The resolution of the question is determined by practical, not theoretical, considerations.” (In re Opinion 33 of the Comm. on the Unauthorized Practice of Law, 160 N.J. 63, 73 (1999)). The appeal to “practicality” and the “public interest” has an obvious relevance in current circumstances.
What the rules do not and should not do, however, is give a law school graduate automatic and indefinite freedom to practice law without supervision, as would a plenary license issued after passing the bar and certification by the Committee on Character. The proponents of a “diploma privilege” do not explain how they would address the requirement of obtaining a certificate of good character, which, as the court’s order noted, can takes months even under ordinary circumstances, and is just as likely to be stalled due to the pandemic as administration of the bar exam itself.
The freedom to practice law without supervision must be sparingly granted only to those who have presented affirmative evidence that it is justified. This is one anchor that should be retained.
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