Utah’s Supervised Diploma Privilege Proposal Is A Bad Idea

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The coronavirus pandemic and the mandatory social distancing rules made it impossible to safely administer the July bar examination in a large, crowded convention center. As a result, most states have postponed the examination to September or may cancel it altogether, which will create a hardship for recent law school graduates. But the Utah Supreme Court is considering allowing them to skip the bar examination. They will be allowed to practice law based on diploma privilege so long as they meet certain requirements and spend 360 hours working under the supervision of a licensed Utah attorney.

The “diploma privilege” approach — adopted only by Wisconsin — is not being considered by the majority of states. Other states are allowing graduates to practice temporarily with supervision until the next scheduled bar examination. This approach has been endorsed by the American Bar Association’s Board of Governors.

While some flexibility should be given only to the graduating class of 2020 in light of the pandemic, I do not support the Utah Supreme Court’s approach. I think the court should follow the recommendation of the ABA and the other states and allow graduates to practice under supervision until the the next available bar examination.

Although this is only a temporary proposal, it will be another round of ammunition for those who want the bar exam abolished for good. And behind the smoke and mirrors and the usual talking points about the usefulness of the bar exam and increasing access to justice for the poor, the motivation is primarily based on self-interest. Let’s look at the main parties.

Law school graduates don’t want to take the bar exam. A few have legitimate reasons. But the rest just don’t want to study for it after three years of school. I’ll admit it: If I had this option when I graduated, I would not have taken the bar exam.

People in the law school industry want the bar exam abolished. The “kill the bar exam” movement started only a few years ago when many law schools saw their graduates’ first-time bar passage rates plummet. This was because fewer people went to law school upon learning that some law schools have advertised misleading post-graduate employment numbers. Due to this decline, a substantial number of schools resorted to admitting students they would normally reject.

Lastly, most practicing lawyers want to keep the bar exam. Most see it as a test for minimum competency and protection of the public. Some see it as tradition and a rite of passage. And there are those who think that if they had to take the exam, then so should everyone else as a matter of fairness.

So let’s analyze the Court’s proposal. First, let’s look at the 360-hour, supervised-practice requirement. If you break those hours down to eight-hour days, that means only 45 days of supervised practice. Or 36 days for the more realistic 10-hour day schedule for a first-year associate. So a two-month supervised apprenticeship would be sufficient to warrant diploma privilege? I think many reasonable legal professionals would disagree.

Also, many law firms -– large and small -– are cutting back on staff. Some are furloughed while others are no longer needed at all. This will make it harder for graduates to find an attorney willing to provide supervision, assuming they have work that can be supervised. And since the 360-hour requirement must be fulfilled by December 31, 2020, it may create problems for those who are seeking those hours at the last minute.

Lastly, consider the quality of the supervision. While I believe every attorney in Utah will take their supervisory role seriously, some graduates will get better training than others depending on the firm’s practice areas, the experience of the supervising attorneys and the resources available to the firm. Some attorneys will be more concerned about obtaining new business in this economy so they might have their protégés spend more time marketing themselves. And others may have their associates perform drudge work with questionable learning value.

Considering the numerous variables, I think a mere 360 hours of supervised practice relying on the honor system would neither adequately test minimum competency nor protect the public.

Supporters will cite to Wisconsin’s existing diploma privilege and how it has not created any problems. Ultimately, disputing this is an exercise in futility. We’ll have an easier time debating whether Brett Favre or Karl Malone was the better athlete. If it works for Wisconsin, then more power to them. However, the other 49 states and other United States territories have not followed suit. And neither have most countries. And most are not inclined to do so, even today.

Then there is the issue of access to justice. Will the diploma privilege increase greater access to legal services for the indigent? This is questionable and speculative at best. I’m sure that every law school graduate will pledge to help the indigent for a set period of time in exchange for diploma privilege. Afterward, some will devote their careers to this endeavor. But I suspect that most will do the bare minimum, then switch to practice areas that fit their interests or are more financially lucrative. If this is the case, then the increase of access will be short-lived.

Also, the economic downturn has negatively affected lawyers as well. As a result, they are helping those who are in need by offering reduced-cost or even free services either as a gesture of goodwill, to change practices, or for marketing purposes. For example, many attorneys nationwide have offered to help medical professionals draft estate plans. Others are helping struggling business apply for government loans and grants, particularly the Paycheck Protection Program forgivable loan. Others are providing consultation to people who are facing evictions or foreclosures.

Maintaining the bar exam will help the indigent obtain legal services. There is a reason why the bar exam tests a wide variety of subjects. It prepares the exam takers to be general practitioners for basic legal services. Today, specialization is easier and usually more lucrative. But in times of economic crisis, clients will either disappear or pay less. So attorneys will need to be able to transition if they want to survive. Granted, working under an experienced attorney is a far better way to do this. But in case that option is not available, at least the attorney will know some basic concepts that they can build on as they develop a new practice area. And the attorney is likely to charge a lower fee while developing that client base and reputation.

The Utah Supreme Court’s proposal of diploma privilege plus supervision approach, while well-intentioned, is not the right way to help this year’s graduates. The 360 hours of supervised experience is not enough to develop core competencies that would justify skipping the bar exam. Also, it is not clear whether this would increase access to justice when existing practitioners are also attempting to reach out to people with limited means in light of the economic downturn. And the concepts studied on the bar exam, while not perfect, makes it easier for attorneys to transition to different practice areas which will become necessary as the economy shifts to adapt to the new normal.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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