Washington Lawyer - September/October 2020 - 16

Courtesy of NCBE

FEATURE

In offering a remote
option, we were trying
to be proactive to
jurisdiction needs,
depending on how
the COVID crisis could impact local conditions
and the ability to test in person.
JUDITH GUNDERSEN
CEO, National Conference of Bar Examiners
bar exam, including both JD and LLM candidates, irrespective of their
graduation year and who are employed in New York. Once authorized,
eligible candidates will be permitted to work under a qualified supervising attorney and to perform, subject to supervision, many of the functions of admitted attorneys across the state. Candidates may remain in
the program through their formal admission to the bar, so long as they
pass their first bar examination no later than 2021 and promptly seek
admission to the bar following the release of exam results.
As of July, 22 jurisdictions have adopted and/or expanded the supervised
provisional practice rule until graduates can take the bar exam or receive
their test results. In some states, law school graduates who are practicing
under attorney supervision cannot be directly compensated by the client.
One major benefit of both the diploma privilege and supervised provisional practice is that they allow law graduates some means of income
while waiting to take the bar exam. These options alleviate some of the
financial hardship from paying mounting law school debt, bar exam registration and prep course fees, and cost-of-living expenses.
On July 29, the D.C. Court of Appeals announced that it was considering
requests to establish a diploma privilege for law school graduates and/or
broaden the circumstances in which they can temporarily practice law
prior to being admitted to the D.C. Bar. "I think provisional licensing is
a good thing, almost like an apprenticeship," says Judge BlackburneRigsby. "One of the downsides may be that those students who graduated and do not yet have jobs will have a more difficult time in some
instances finding a licensed attorney who can supervise their work."
Judge Blackburne-Rigsby echoes the stance of other jurisdictions
regarding the diploma privilege in that if it is permitted, graduates would
only be able to practice in the District. She also emphasizes that the bar
exam is administered in part to protect the public from dubious
lawyering.
American University's Wiredu is curious about how employers would feel
about the diploma privilege. "Generally speaking, if the bar exam were to
happen normally in July, there would be a waiting period anyway on
results. So, during that waiting period, there is no diploma privilege.

WASHINGTON LAWYER

SEPTEMBER/OCTOBER 2020

[The graduate] either has an employer who would serve as perfunctory
supervisor or will be a junior clerk until they get licensed. Are employers
willing to accept this diploma privilege licensure while students wait to
take an actual bar exam?"
UDC's Hutchins says it is important to remember that the COVID-19 crisis
has created an uptick in the need for attorney services. "What came with
the health challenges that COVID-19 presented was an economic crisis,"
Hutchins says. "And so, I think everybody in the legal services space and
in the nonprofit space anticipates a flood of needs [from working-class
and poorer litigants] once the courts are reopened. And those people
are going to need lawyers who can champion their cause and help them
obtain justice in the courts. Turning off the spigot for new lawyers, preventing new lawyers from entering the bar to meet some of those
unmet legal needs, would be a mistake."

TRADITION VERSUS CHANGE
As the world continues to grapple with the coronavirus pandemic, many
doubt a full return to our previous ways of life. Some companies are
already advocating for a significant reduction of people returning to
offices, and social distancing may become a lasting practice. So, what's
the likelihood of the pandemic pushing all U.S. jurisdictions to completely do away with in-person bar exams to offer law school graduates
different gateways to law practice?
Not likely, according to Gundersen. "We are unaware - and this could
always change - of any other professional licensing exam that has
moved online," she says. "For the physician licensing test and a lot of the
medical profession tests, they test at Pearson VUE centers or ProMetric
centers." Some of these testing centers have reopened at half capacity,
according to Gundersen. Medical licensing exams had to be postponed
during the pandemic, while others, such as the accounting and engineering exams, have been delayed.
"The issue in a licensing exam, which is different than an admissions test,
is that a licensing exam is a very high-stakes test because it serves to
protect the public," Gundersen says.
Hutchins also doesn't believe a sudden transition to virtual bar exams
will happen post-pandemic. "We have seen the ways in which technology can improve our delivery of legal education, our communication
with one another, our ability to work remotely. But we have also seen the
substantial downsides to that. So, I think that it is not going to be like a
light switch," Hutchins says. "I think it'll be some form of a hybrid."
Similar to the new normal that followed the 9/11 terrorist attacks,
Hutchins says there will be incremental changes to how things have
been done traditionally. "I remember predictions about what the world
was going to look like post-9/11, and most of them were wrong. I think
that the changes we saw in our society were much more gradual and
much more invisible. I think that the same thing will happen with regard
to technology post-COVID-19. It will insinuate itself into our lives, but not
in the big, dramatic George Jetson way."

Reach D.C. Bar staff writer John Murph at JMurph@dcbar.org.

Washington Lawyer - September/October 2020

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