Law students across the country are rallying like never before, launching ground-up, grassroots movements urging their respective state bars to forgo the traditional bar exam in favor of emergency diploma privilege in light of the COVID-19 crisis. One letter addressed to the NCBE has amassed over 2,000 signatures. Another letter, sent to the California State Bar, has over 1,300 signatures. States with a small number of bar-takers, like Kentucky, have garnered a significant number of signatures in favor of emergency diploma privilege. A trio of law professors has even started their own petition and have amassed over 300 signatures from law faculty across the country.
In the coming months, there will be a critical need for lawyers as people continue to feel the physical, social, and economic impact of COVID-19. This global pandemic, coupled with no new lawyers entering the profession if the bar is postponed or canceled, is only going to exacerbate the lack of access to justice issues in this country. Many courts across the country have shut down, which means an immense backlog of cases in the legal system is inevitable. The police are not going to stop arresting people, and prosecutors are not going to stop asking for high bonds to keep poor people in jail pretrial. Some jurisdictions, like D.C., have threatened to throw people in jail for up to 90 days for violating stay-at-home orders, even though sitting in jail pretrial during a global pandemic could very well be a death sentence. Holding—or postponing—the July 2020 bar will have a devastating impact on marginalized communities and law students alike.
Is the bar exam really needed?
The most popular argument advanced against diploma privilege is that the bar exam acts as a gatekeeper, ensuring the quality of legal services and protecting the public from incompetent lawyers. Yet, the California State Bar has admitted—albeit in a significantly downplayed 2017-report—that its bar exam does not actually protect the public from incompetent lawyers. This begs the question: if the exam, as admitted by the California State Bar, is not actually protecting the public from “bad” lawyers, what purpose is it serving?
We find it troubling and impossible to reconcile the California State Bar’s 2017 report findings with its purported purpose of the bar exam. The most probable answer to such an inconsistency is that the bar exam is arbitrary and does not actually prepare lawyers to practice law in any meaningful way. States did not even require a written bar exam to practice law before the late nineteenth century. Before then, lawyers—even “great” ones like Abraham Lincoln—“read” the law, meaning they did not attend law school and certainly did not take or pass a written bar exam. Accordingly, scholars have pointed out that there is no research to suggest that legal malpractice is any less frequent today because of the bar exam than it was before the bar exam as we know it existed.
Some state bars have attempted to measure incompetence by the number of disciplinary actions taken against a lawyer. Even if a positive correlation existed between disciplinary actions and lawyer incompetence, the metric would still be problematic considering that state bars do not discipline white lawyers at the same rates that they discipline lawyers of color. But, even with that, there is also no research to suggest that Wisconsin and New Hampshire—the two states that presently employ diploma privilege—have a higher incidence of attorney misconduct.
Why is diploma privilege the best alternative?
One of the most common bar exam alternatives being considered by states across the country is postponement of the exam to fall 2020. However, current models suggest that large group gatherings may not return this calendar year. Experts expect second and third waves of COVID-19 infections, extending into the fall and winter until a vaccine is made commercially available. Moreover, bar exams nationwide are held in large venues, often accommodating over 1,000 exam takers in a single room. The enormity of the bar exam in tandem with the potential for subsequent waves of the virus place students and test administrators at grave risk of infection, and in turn is likely to place public health and safety at risk. The last thing that the public needs is a COVID-19 outbreak at a massive testing site for an exam that admittedly fails to protect the public from bad lawyers.
Small group administration is another option some are calling for. This option is, however, overwhelmingly impractical, especially in states the size of California or New York. The bar administration, in just a few months, would need to find hundreds of small venues willing and able to administer the exam, in addition to hiring and training countless test administrators. Will enough test administrators be willing to risk their safety and health to staff the hundreds of concurrent bar administrations throughout the state? The cost and feasibility of this option are prohibitive. This option also fails to consider the impact that COVID-19 may have on the health of law students. How many students, if offered this option, would be willing to defy shelter-in-place orders to take the exam?
The potential to administer an online bar exam has been met with appropriate skepticism. Judith Gundersen, the head of the NCBE, noted that the feasibility of administering an online bar exam is questionable. An online bar exam opens the door for cheating, unequal access to computers and the internet, and software glitches during exam administration. In the few short months, bar examiners would have to put together a framework for online administration and in all likelihood numerous, important questions about the feasibility and logistics of the online exam would arise. Bar examiners are wholly unprepared to answer these novel questions in the narrow time-frame before the summer exam administration.
Supervised practice also presents issues, given that many of those who have advanced this approach do not address how this would differently affect certain types of practice. For example, students hoping to begin a solo practice would not have an attorney supervisor. Would the potential to open a solo practice be hindered? Also, students who will enter public service as Public Defenders and District Attorneys are unclear as to whether they would be able to appear on the record as an attorney on behalf of clients and the state.
Diploma privilege is the only humane option. It protects the health of students while also ensuring fair and equitable admission to the bar. It is also the only practical method of licensure in the midst of COVID-19. With diploma privilege, students can enter the profession to zealously meet the needs of clients, especially those individuals and families who need legal aid the most.
But aren’t you just entitled millennials asking for a handout?
As with any movement that is in direct opposition to the status quo of the power structure, there is vehement opposition to emergency diploma privilege. Opposition groups have had a seemingly allergic reaction to the thought of emergency diploma privilege, chalking it up to entitled, lazy millennials taking advantage of a global pandemic. Asking for compassionate relief during the largest disruption of society since WWII is not asking for a handout. Many students would gladly take the bar exam, as we have always anticipated doing if it were possible to administer the exam in a timely and safe manner. However, during this unprecedented national crisis, a safe, timely bar administration is not possible. What we are asking for is not a handout, but a way to continue along the pathways we have charted for ourselves and our communities and to honor the commitments we made when we anticipated sitting for the July bar exam.
What we are asking is for bar administrators to allow us to serve our communities, that are, and will be, in greater need of legal services than ever before. Our clients are numerous and diverse: tenants at risk of eviction, workers entitled to protection or back-pay, small businesses that need tax advice, presumed innocent individuals awaiting a Constitutionally-guaranteed speedy trial, and immigrants that await postponed bond hearings. These examples are illustrative and non-exhaustive, indicative of a spike in the need for legal services that we want to address as quickly as is possible.
It bears repeating: in order to dispel the air of entitlement many associate with millennials—we would gladly take the July bar if we could. But, we cannot. And we cannot allow COVID-19 to further disrupt the vital legal services we are trained for and experienced in giving. We implore the granting of diploma privilege as the humane, fair, and appropriate option for both students intending to sit for the summer bar exam, and for the communities we will serve as lawyers.
Emily M. Croucher is a third-year law student at the University of California, Irvine School of Law, and a graduate of California State Polytechnic University, Pomona. She is a future public defender.
Allyssa M.G. Scheyer is a third-year law student at the University of California, Irvine School of Law, and a graduate of Occidental College. She is a future immigration attorney.
Suggested citation: Emily M. Croucher and Allyssa M.G. Scheyer, Diploma Privilege: Diploma Privilege Is the Only Ethical and Humane Path to Licensure During the COVID-19 Crisis, JURIST – Student Commentary, April 9, 2020, https://www.jurist.org/commentary/2020/04/croucher-scheyer-diploma-privilege/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Social Media Director. Please direct any questions or comments to him at commentary@jurist.org
