Gordon Smith, dean of Brigham Young University J. Reuben Clark Law School (courtesy photo).

 

Utah looks to be the first jurisdiction to embrace a temporary diploma privilege program amid the COVID-19 pandemic, which will allow recent law graduates to be admitted to practice without taking and passing the bar exam.

The Utah Supreme Court late Thursday released a proposed order amending its bar admission procedures on an emergency basis to allow recent and upcoming graduates of American Bar Association-accredited law schools that posted a first-time bar passage rate on last July’s exam of 86% or higher to be admitted in the state without sitting for the test.

To qualify for the diploma privilege, they must have graduated between May 2019 and June 2020, not have previously sat for a bar exam, and already been registered to take the July exam in Utah by April 1. They also must complete 360 hours of legal work under the supervision of an attorney licensed in the state by the end of the year to be admitted to practice.

The order isn’t final. The court is allowing public comment until April 16, after which a final order is expected. And if the proposed order is adopted as written, the July exam will be canceled.

Utah’s move shows the profound adjustment the pandemic is requiring from the legal profession, which has prompted some law firms to cancel summer associate programs and defer hiring of law grads. At the same time, law schools and courts have needed to move swiftly into remote operations.

“I’m thrilled for our students,” said Gordon Smith, dean of Brigham Young University J. Reuben Clark Law School. “The students have been really put to it by the pandemic, and this has been a difficult semester for all the students. As we thought about how to respond with respect to the July bar exam, I think most of us felt like we didn’t see a clear path for the exam happening in July. The issue, for me, became a choice between postponing the bar exam and the diploma privilege.”

Smith and Elizabeth Kronk Warner, dean of the University of Utah S.J. Quinney College of Law, initially floated the idea of an emergency diploma privilege provision that incorporates a period of supervised practice in a memo to the Utah Supreme Court several weeks ago, Smith said. The concept first emerged in a March paper written by 11 legal academics and education policy experts who urged jurisdictions to act quickly to develop alternative pathways for attorney licensure given that the traditional bar exam likely can’t be held in July in most places.

Bar admission authorities in Utah embraced the overall concept, but spent the past two weeks refining the details of how it could work in the state. The 2019 86% first-time pass rate cutoff for qualifying schools wasn’t part of the deans’ original proposal, Smith said, though both BYU and Utah meet that standard. The proposal includes the April 1 bar exam registration requirement to prevent law graduates without an interest in practicing in Utah from flooding in after the diploma privilege is enacted, Smith said. The 360-hour supervised practice requirement should also weed out those who don’t ultimately want to be members of the Utah Bar, he added.

“The Court’s goal is to identify criteria for licensure that will balance all of the above concerns—providing certainty and clarity for applicants and their employers, enhancing access to justice, and assuring a high standard of competence for those who are admitted to the Utah Bar,” reads a statement from the Utah Supreme Court explaining the proposal.

Utah’s proposal may well reenergize the national debate amid legal educators, courts, and bar admission authorities on how to handle lawyer admissions amid a pandemic that may force the postponement of the bar exam for months. Law students across the country have been petitioning courts and bar admission authorities to adopt emergency diploma privilege programs in response to the COVID-19 outbreak, but thus far no jurisdiction had indicate any interest in pursuing that option.

Jurisdictions seem to be gravitating toward extending the supervised practice programs that allow law students to represent clients in clinics, while recent graduates await the opportunity to sit for the bar exam. New Jersey, Arizona and Tennessee have already announced extended supervised practice programs, and New York has said it is looking closely at that option. But in each case, law graduates will still have to eventually sit for the bar exam to be admitted.

Diploma privilege is not an unproven concept. Wisconsin has long maintained such a program that enables graduates of the state’s two law schools, the University of Wisconsin Law School and Marquette University Law School, to be licensed in the state without taking the bar exam. Gordon, who previously taught at the University of Wisconsin, said he has seen firsthand how the system can work without endangering the public by unleashing unqualified lawyers on clients.

But he acknowledges that a diploma privilege is more feasible in small jurisdictions with just a few well-regarded law schools. Such a system in California, for example, would be much harder to enact given the large number and wide range of law schools, he noted.

“We felt like the cost of postponing the bar exam, to poor students, was quite high,” Gordon said. “And the risks to the public of the diploma privilege plus supervised practice would be quite low.”