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Guest opinion: Utah should lead and let law grads practice without taking the bar exam

The Scott M. Matheson Courthouse in Salt Lake City is pictured on Wednesday, Feb. 19, 2020. The Utah Supreme Court is considering creating an exemption from taking the bar exam.
Spenser Heaps, Deseret News

Last Thursday the Utah Supreme Court released for public comment a proposed order to temporarily amend bar admission procedures for recent law school graduates. If the order is approved, Utah would become the first state in the country to create a diploma privilege option during the COVID-19 pandemic.

The diploma privilege would permit recent law graduates to become licensed attorneys without taking the bar exam. The idea is an innovative and courageous one that deserves the public’s support.

Given the public safety uncertainties created by the COVID-19 pandemic, the Utah Supreme Court is concerned that the Utah Bar cannot safely offer a July bar examination. As of April 13, nine jurisdictions have canceled their July bar exams — the traditional time when most law graduates take the exam.

Unfortunately, it is unclear when the exam can be offered in the future. Moreover, graduates taking the bar must study for 10 to 12 weeks to prepare, and the uncertain exam date means that examinees will be unable to predict work schedules and availability. Practicing attorneys and clients are unlikely to hire someone who will need to take months off at some unknown future date.

Our law students are facing myriad challenges that directly impact their lives and ability to study for the exam. One graduating student has a severely immunocompromised child and is unable to leave his house because of the risk of exposure. Another student is completely reliant on his wife’s income from a small business — a small business that will likely go bankrupt in the next few weeks. Another student has lived at home during law school, but her father has significant respiratory issues. To limit his exposure, she has moved to a friend’s basement, which lacks reliable internet access.

In the face of these and countless other similar situations, the Utah Supreme Court has created an innovative solution to licensing issues. Perhaps the biggest advantage of the proposal is that it provides certainty in uncertain times. Under the proposal, graduating students will have a clear path to becoming licensed to practice law. By contrast, the path in other states remains unclear.

Those jurisdictions still planning on a July bar exam may be required to cancel the exam midway through the students’ 10 to 12 weeks of study. Even for those jurisdictions that hope to hold a bar in the fall, problems have already arisen. For example, New York — which has already postponed the exam until September — just announced that it will not be able to test all July candidates because it cannot safely access large venues. It is unclear which graduates will be able to sit for the exam in September and which will be left to wait for some uncertain future date.

Preparing for the most important exam in one’s legal career is already stressful, expensive and time-consuming; preparing for an exam on a date that has become a “moving target” places an incredible burden on these soon-to-be graduated law students.

In crafting the proposed order, the court was well aware of the need to protect the public from possible incompetent practitioners. The proposed order only applies to graduates from American Bar Association-accredited schools with first time 2019 bar-passage rates of 86% or higher, largely encompassing graduates from tier-one law schools — including BYU and the University of Utah. Many of these schools have passage rates in the low- to mid-90s.

Additionally, graduates will have the opportunity to further their skills through 360 hours of supervised work prior to being granted the diploma privilege. Many of our graduates will fulfill their supervised practice hours through pro bono and low-bono work, which leads to one of the greatest benefits of the proposal.

The court’s proposal helps address Utah’s long-standing access to justice problems. The need for free and low-cost legal services is expected to balloon as the effects of COVID-19 continue to manifest from unemployment claims to small-business loans to bankruptcies to the need for access to necessities such as housing and food. Under the proposal, recent graduates will be poised to join the front lines with our legal professionals to meet the needs of our communities as we seek to rebuild our way of life in the coming months.

The COVID-19 pandemic has caused suffering and uncertainty for millions, but in the midst of such hardship many leaders are trailblazing through these dark times. The Utah Supreme Court is leading out for the nation with this proposed order, boldly meeting the challenges of the virus by creating an innovative, compassionate and productive solution to a very difficult problem. Its proposal deserves support.

Paul Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.

Frederick Gedicks is the Guy Anderson Chair and professor of law at the J. Reuben Clark Law School at Brigham Young University.

Catherine Bramble is a legal writing professor and the director of academic advisement and development at the J. Reuben Clark Law School.

Louisa Heiny is a professor of law at the S.J. Quinney College of Law.