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Utah Supreme Court contemplates allowing law school graduates to practice law without passing the bar

Coronavirus complicating offering Utah State Bar examination

The Scott M. Matheson Courthouse in Salt Lake City is pictured on Wednesday, Feb. 19, 2020.
The Scott M. Matheson Courthouse in Salt Lake City is pictured on Wednesday, Feb. 19, 2020.
Spenser Heaps, Deseret News

SALT LAKE CITY — Coronavirus concerns stole the last few months of attending classes for Utah and BYU third-year law students. And now it threatens to postpone or cancel their opportunity to take the 2020 Utah State Bar Exam.

A proposed order from the Utah Supreme Court, however, could mean they get to practice law sooner than they would without the disruption of the COVID-19 outbreak — and without taking the bar exam at all.

The Supreme Court’s proposed order would grant “diploma privilege” to those who graduate between May 1, 2019, and June 30, 2020, with a law degree from an American Bar Association-approved law school with a first-time bar exam success rate of 86% or better. That means that with some caveats and conditions, these students could become lawyers without ever taking the test.

“The COVID-19 crisis has disrupted ordinary life in a seemingly infinite number of ways,” said a statement from the court that accompanied the proposed order released for public comment Thursday afternoon.

“Like others in this time of unprecedented upheaval, the Utah Supreme Court is endeavoring to temporarily adjust some of its rules and practices to address the reality we currently confront. ... At present, the court cannot guarantee the bar’s ability to safely administer the examination in July. Nor is the court in a position to predict when it may be able to offer the examination.”

The fact that these graduating law school students may be in limbo for months wasn’t just a problem for them. Court officials, state bar leadership and Utah’s two law school deans felt it was also an issue for the public these aspiring attorneys hoped to serve.

“This creates hardship, risk, and uncertainty for a range of individuals and organizations — for law school graduates whose professional plans and future livelihood depend on receiving a license to practice law, for the public and private entities who have factored these graduates into their plans, and for the clients these new law graduates could serve at this crucial time,” the statement from the court said.

The proposed order offers this path to those who haven’t previously taken a bar exam anywhere in the U.S. or its territories. They also must have submitted an application to take the Utah Bar Exam on or before April 1, 2020, and they have to complete 360 hours of supervised legal practice under the supervision of a licensed, qualified attorney.

The deans of both the University of Utah and BYU law schools offered ideas and support to the state’s high court and the Utah State Bar as officials attempted to solve the issue of how to maintain professional standards but allow these new graduates the opportunity to make a living.

“The diploma privilege gets them practicing right away,” said Gordon Smith, dean of BYU’s law school. “Instead of taking 10-12 weeks studying for the bar exam, and then taking the exam in July, their competence is evidenced by their graduation from a qualifying law school.”

In other words, if they successfully navigated the top law schools in the country, they can earn their way into the bar by working under a practicing attorney. Smith said those involved in the proposal considered only allowing BYU and Utah graduates this option, but then they opened it to any graduate of a qualifying law school.

Smith said the planners settled on the “qualifying school” standard because it struck a balance between two extremes. Smith said BYU’s pass rate last year was 94% while Utah’s was 92%, and both schools are ranked in the top 50 in the country.

He said if the point of the exam is to “filter out those who are incompetent,” then consider that schools filter through admissions and “rigorous legal education.”

The proposed order will be available for public comment until April 16.

Smith said faculty from both Utah law schools and the Utah State Bar worked together with the Utah Supreme Court in trying to come up with solutions that both maintained competency standards and allowed these students to begin the careers they’ve pursued for the last several years.

“We think it’s the right thing to do to support these recent graduates during a really difficult time,” said Herm Olsen, president of the Utah State Bar. “The bar is comfortable that the public will be well served by these highly educated and prepared new lawyers. They will receive great training from seasoned lawyers as they enter into law practice while negotiating a challenging period. We appreciate the court’s care and thoughtful direction for this unique privilege right now.”

Smith said law school officials, bar leadership and court personnel have had ongoing discussions about how to address some of the issues with the bar exam when the coronavirus issues presented an immediate, logistical challenge.

“We were were talking about diploma privilege because of the issues with the bar exam,” Smith said. “There are three categories of concerns. There is some significant redundancy with the law school experience. The skills that are being tested on the bar exam are the same skills tested in law school. There is significant additional cost to preparing for the bar exam, and if it is redundant, it doesn’t seem to make sense.”

Secondly, he said, “Not only is there out-of-pocket costs to pay for bar exam preparation, but there is the opportunity cost for students who spend 10-12 weeks preparing for the exam when they could be working.”

“Third, standardized tests, and the bar exam, in particular, have problems in filtering out negatively certain groups,” he said. “Minorities, women, people who are poor, or those who don’t have the ability to take three months off from work and study full time, or those who have other reason may be disadvantaged. And most of those disadvantaged people are the people who can fill the access to justice gaps. We may be putting up barriers to the very people who can help us solve these problems.”

Comments can be submitted at utcourts.gov/utc/rules-comment/ through April 16. The list of committees and staff members may be found at utcourts.gov/committees/.

“This will open a new path for bar licensure for a limited group of applicants to the Utah Bar at this difficult time,” the court statement said. “Some applicants will not qualify. Others may prefer to await the time when we will be able to offer the bar examination. For any and all who fall into these categories, we commit to providing the bar examination at the earliest date at which it can be safely offered. But for now, we are committed to also providing a limited path to bar licensure for a select group of applicants who can qualify under our criteria.”