Every year roughly 24,000 students graduate from ABA-accredited law schools and begin the arduous and time-intensive preparations for the July bar exam. This year, however, the coronavirus pandemic has thrown that routine into chaos and left thousands of young attorneys with uncertain futures.
In response, many have called for easing the burdens that govern the legal profession by allowing recent graduates to begin their practice law without taking the bar exam. The Utah Supreme Court has taken the lead and adopted a policy that should serve as a model for other states. Any graduate of an ABA-accredited law school that has a first-time bar examination passage of 86 percent or higher may be admitted to practice law in Utah immediately without taking the bar exam. These newly admitted lawyers will also be required to complete 360 hours of supervised practice before year’s end. This sensible policy will help alleviate the impact of the pandemic for many, and the court should be commended and emulated.
This commonsense decision in Utah should lead us to reconsider many other longstanding occupational licensing requirements that hinder the practice of law. The current pathway is extraordinarily burdensome. After college graduation, an aspiring lawyer must complete three years of a demanding law school education—often at great cost, with law students carrying an average debt load of $145,500. Then, law students must spend thousands more in fees to prepare for, and take, the bar exam. After all of that, practicing attorneys are forever haunted with annual bar dues and continuing education requirements.
It’s no wonder that many lawyers become deeply dissatisfied with their careers. There are plenty of attorneys who would love to use their law degrees in a more impactful and fulfilling fashion, perhaps through pro bono work for causes they care about or to help underprivileged groups, but can’t afford it.
States should critically reevaluate whether all these requirements are truly necessary or whether they just serve as a hedge to protect those who have already jumped through the hurdles. For instance, after three years of intensive law school, is the bar exam even necessary? The exam is a grueling two-day affair that involves extensive memorization of many legal doctrines that an attorney will never again use in his or her career. What is the value, for instance, of requiring a lawyer who plans to work on transactional contracts to memorize the details of the rule against perpetuities, an arcane property law doctrine that is mostly irrelevant for even most property lawyers?
Wisconsin has long offered “diploma privilege,” which allows graduates of Wisconsin law schools who have taken specific prerequisite courses to practice law without sitting for a bar exam. And there is no indication that the quality of lawyers in Wisconsin has declined in any way. While other states have considered following in Wisconsin’s footsteps, none have done so to date. This crisis should be a catalyst for more states to take that critical step.
States should also consider establishing additional, expedited pathways to practice law without a three-year law school education. For instance, some states allow people to become lawyers through legal apprenticeships rather than formal legal studies. More states should consider such programs.
States should also look to continue to reduce the burden for lawyers who moved to practice in another jurisdiction. Currently, too many lawyers are required to take the bar exam a second or third time when their career takes them to a different state. Fortunately, 36 states have adopted a Uniform Bar Exam, which makes transferring from state to state far more accessible, but states like California have stubbornly resisted. This needs to change.
States also restrict innovation by imposing arbitrary restrictions on the provision of non-traditional legal services that increase efficiency and reduce the cost of legal services for average Americans. For instance, accounting firms that do tax work could also provide basic tax-related legal services. On this front, the Utah Supreme Court is once again taking the lead, announcing a recent initiative to create space for experimentation with innovative ways to provide legal assistance. Arizona and California are also in the process of reevaluating these sorts of burdensome requirements.
It shouldn’t take a pandemic to show some of the glaring flaws in our legal system. But hopefully, in the face of this crisis, states will think critically about ways to reduce unnecessary burdens that prevent lawyers from practicing law, which in turn, limits peoples’ access to justice.
Daniel Ortner is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty and, amid the current pandemic, restoring freedoms necessary to rebuild America.
This op-ed was originally published by DailyJournal on May 4, 2020.