Sorry, Not Sorry: Temporary Practice in a Pandemic

Sorry, Not Sorry: Temporary Practice in a Pandemic

The American Bar Association (ABA) Board of Governors has issued a policy resolution urging states to adopt emergency rules that would authorize recent law graduates to engage in supervised law practice until the COVID-19 pandemic allows administration of the next bar exam. The ABA’s guidance encourages states to terminate these limited licenses if an applicant does not take or pass a bar examination by the end of 2021. This resolution sends a mixed message: On the one hand, emergency licensing is crucial for law grads who cannot take a bar exam. On the other, even after as much as a full year of direct engagement in the practice of law, a bar exam is still the only vehicle to earn a permanent law license.

Such an edict may seem like sound policy from the vantage point of lawyers who took a bar exam in an era predating the Uniform Bar Examination (UBE). Under the bar exams of the days of old, a period of clinical or supervised practice would be an asset to bar preparation. A bar candidate who had the benefit of experience with state procedural rules, as well as practice exposure to landlord-tenant disputes, personal injury claims, marital property distribution, child custody and support orders, or plea bargaining, could use that knowledge on the state bar exam. But the UBE much more closely resembles law school exams than the bar exams of twenty plus years ago. This “national” exam, given in thirty-six jurisdictions, tests the law of nowhere. It is not connected to the substantive or procedural rules of any specific state. For graduates derailed by COVID-19, the gap between law school and an exam focused on “general principles of law” will have an “icing” effect. The more removed a graduate is from law school, and the more engaged in the everyday practice of law, the more difficult the test preparation.

Those who suffered from academic and socio-economic disadvantages will be prime targets of this icing effect. Law grads without the financial means to abandon their jobs and study full-time one year out of law school will be at greater risk of failing the bar. More often than not, they will be female and minority students, which speaks poorly of the sincerity of our efforts to diversify the profession.

The proposed temporary practice rules endorsed by many states are an admirable first response to the pandemic if the bar exam is administered in September. But if public health concerns prevent a fall bar exam, the temporary practice will prove to be a Band-Aid on a wound needing suture. New lawyers working in small firms, legal aid, and as public defenders will be hard pressed to serve clients and find time to study. And the clients served by lawyers in these practice areas are the most vulnerable. Will they really be served by having a new lawyer, who has worked on a case for months, say “sorry, I can’t work with you anymore because I have to study for the bar exam”? Or worse, what will we tell lawyers who served clients skillfully and competently, but who fail a bar exam unrelated to that work? “Sorry, not sorry?”

Marsha Griggs is an Associate Professor at the Washburn School of Law. Professor Griggs is a member of the Collaboratory on Legal Education and Licensing for Practice, a group of eleven scholars who have studied and written about the bar exam and licensing for many years.

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