With Bar Exam in Limbo, Momentum Builds for Supervised Practice Programs

Law students across the country have joined forces to lobby state courts and bar examiners to adopt emergency diploma privileges that would allow them to skip the bar exam altogether due to the coronavirus pandemic.

But authorities who oversee attorney admission are beginning to coalesce around a different alternative now that the July bar exam looks unlikely: temporarily allowing law graduates to practice under the supervision of licensed attorneys until they have the chance to sit for the bar.

The move toward expanded supervised practice programs got a boost Tuesday when the American Bar Association’s Board of Governors adopted a resolution urging jurisdictions to cancel the July bar and allow 2019 and 2020 law graduates to practice under supervision until they take and pass the bar exam in 2021.

This year’s law graduates will be in a very difficult position if jurisdictions cancel the July exam without offering an alternative way for them to launch their legal careers, notes the report that accompanies the ABA resolution.

“Without adoption of a rule to mitigate the effect of the cancellation or postponement of the July 2020 bar examination, a delay in law graduates’ eligibility to practice law will place an unprecedented financial burden on thousands of law graduates,” it reads. “During this unexpected delay in admission, job security will be in question; reduced salaries are likely; and law student debt remains.”

Moreover, expanded supervised practice programs ensure that recent law graduates can work even if exams rescheduled for the fall must be postponed again due to the virus, supporters argue.

The National Conference of Bar Examiners has said it will decide by May 5 whether there is enough demand from jurisdictions to administer the July bar. In the meantime, it has committed to providing two alternate fall dates for jurisdictions that postpone: Sept. 9 and 10, and Sept. 30 and Oct. 1.

Law deans in several jurisdictions also have lined up behind the temporary expansion of supervised practice programs, which up to this point have been narrowly tailored to allow law students and some grads awaiting bar results to participate in clinics and other activities in which they counsel clients under the watch of licensed attorneys.

The deans of all 15 of New York’s ABA-accredited law schools wrote to the state’s Court of Appeals last week requesting an 18-month supervised practice period for new law graduates, and even urged the court to considering fully admitting them without taking the bar once that period is up. The court has postponed the July bar until Sept. 9 and has said it is looking at expanding its supervised practice program but has not yet announced any formal changes.

In an April 7 letter to the Florida Supreme Court and the Florida Board of Law Examiners, the deans of the state’s 12 ABA-accredited law schools argue that the bar should be postponed until September and that new graduates who have passed the character and fitness requirements should be allowed to practice under supervision for 24 months or four administrations of the bar exam. After that, they should be eligible for admission without taking the test, the deans wrote.

And the deans of 20 California law schools wrote last week to the state bar and Supreme Court asking them not to cancel the July exam without “planning for an alternative pathway for licensing new attorneys.” That letter did not explicitly call for an expanded supervised practice program, however. The State Bar of California’s Board of Trustees is scheduled to consider the fate of the July bar exam in an April 14 meeting.

Some states are already unveiling expanded supervised practice programs amid the pandemic. The Supreme Court of New Jersey on Monday officially postponed the July bar exam until the fall and announced an expanded supervised practice provision. That provision applies only to 2020 graduates of ABA-accredited law schools who have not yet sat for the bar and who passed the character and fitness requirements. They must practice under the supervision of an attorney who has been licensed for at least three years. Under the provision, 2020 law graduates must sit for the first available bar exam, though they can petition to defer the test one time.

Bar authorities in Arizona and Tennessee have not yet canceled the July bar exam, but both jurisdictions have announced expansions of supervised practice programs. In Tennessee, law students who graduate this semester and who were scheduled to take the July bar may practice under the supervision of a licensed attorney until Nov. 15, 2021. They must take the first available bar exam, however.

The Supreme Court of Arizona this week also expanded the rule that allows law students to practice under attorney supervision to cover recent graduates as well.

Marc Miller, dean of the University of Arizona James E. Rogers College of Law, said Wednesday that he expects more jurisdictions to follow the lead of the early adopters and unveil expanded supervised practice provisions.

“I think there’s going to be a national move towards this,” he said, noting that admission authorities seem reluctant to abandon the bar exam completely. “It seems to be the right, clear answer.”