Diploma Privilege: The “Felt Necessity” Of Our Time

How the legal profession can begin to be brave and just, starting by granting diploma privilege to this year’s class of law graduates.

I. Introduction

“I can’t wait to start law school and be able to make a difference in all of this as a practicing attorney.”

It was last Friday, August 14, 2020, and the incoming law students’ hope and optimism shined through the Zoom chat. I was the alum representative facilitating a conversation about Bryan Stevenson’s memoir, Just Mercy, which had been assigned to the new law students for their first year orientation.

In the book, Stevenson describes his early years setting up the internationally‑recognized nonprofit Equal Justice Initiative (EJI). He introduces the reader to Walter McMillian, a Black pulpwood worker who is wrongfully convicted of murder and spends six years on death row before being exonerated by Stevenson and his colleagues in 1993. Stevenson interweaves McMillian’s story with those of several other clients represented by EJI over the years, including juveniles, clients with severe mental disabilities, and others, all of whom have been treated with indifference at best and disdain at worst by the “justice” system. He writes frankly about navigating the system’s built-in racism and the enormity of the institutional obstacles he’s faced. But ultimately, Just Mercy also delivers a profound sense of hope and a message about the power of mercy to redeem each of us and fix a broken system of justice.

In our Zoom discussion, the students’ vulnerability and openness was remarkable. Several students spoke about their experiences as the sons and daughters of immigrants. One spoke about her experiences as a person with disabilities. Many described Just Mercy as equal parts depressing and inspiring. But all shared one commonality — a vision for the future, a future of justice, a future of making a difference.

I sat outside on my deck in upstate New York smiling to the students and offering them words of encouragement and support as they start law school. In the meantime, a large part of me — having graduated only four years ago — wanted to tell them to run, to choose another path.

I resisted the urge to tell the students on my computer screen that our profession is currently failing incoming lawyers around the country. I resisted the urge to tell them how, as beautiful, noble, and important a vision as they might harbor for their individual futures, that future does not belong solely to them. I resisted the urge to tell them about the major impediments that stand in the way.

I sat on my deck thinking about a quote by former Supreme Court Justice Oliver Wendell Holmes, Jr., that the “rules by which [people] should be governed” are discerned by the “felt necessities of the time, the prevalent moral and political theories, intuitions of public policy.” Just as COVID‑19 has laid bare the extreme racial and class disparities in America, it has also laid bare the crisis of imagination we have in the legal profession. Although this is not anything new, we can no longer afford such risk aversion.

It is hard to imagine effectively tackling any of the problems that the incoming group of students want to tackle when the legal profession, right now, is in utter disarray about licensure for this year’s class of law graduates. For us as practicing lawyers, advocating for an ethical and equitable solution to this disarray is surely the “felt necessity” of our time.

II. The Bar

As a very general overview, the Bar exam is one component of the legal profession’s occupational licensing scheme. While each state sets its own standards for attorneys, almost all states require a Bar examination. Within this framework, the examination itself varies. Some states, like New York, have adopted the Uniform Bar Exam (UBE). Each year, approximately 10,000 graduates in New York alone spend from the end of May until the end of July, working an average of 8–10 hours per day (some Bar courses are six days a week) to cram as much information as they possibly can into their heads. In a normal, non-pandemic year, the candidates then pile into arenas such as the Javits Center in New York City to take one day’s worth of multiple choice questions (the Multistate Bar Exam, or MBE), half day’s worth of essays (the Multistate Essay Examination, or MEE), and half day of the Multistate Performance Test (MPT), which tests the examinee’s ability to apply a confined universe of legal cases and references to a particular fact pattern. Exam results do not typically arrive until the end of October, an excruciating wait. If the candidate is unlucky, they have to wait until February to retake the exam; it is only offered two times per year.

One of the principal justifications for the Bar exam is that it is a test of “minimum competence,” that it is the legal profession’s duty to protect an unsuspecting public from snake oil salesmen and other forms of predatory practices. This notion has intuitive appeal: I don’t want any “Joe Schmo” to be able to charge for legal services and take advantage of the already marginalized.

However, this idea — that the Bar exam actually provides this measure of minimum competence — has not been adequately interrogated or tested. Does the Bar exam truly “protect” the public from incompetent attorneys, as measured by complaints to state Bars and Ethics committees? We have no way to know, because we have no control group against which we can compare. Monetary awards from malpractice suits and settlements are often inaccessible to the public. As recent law graduates Donna Saadati-Soto and Pilar Margarita Hernandez Escontrias explain, we have no empirical proof to back up the pervasive, almost sacrosanct claim that the exam tests minimum competence, other than the self-serving statements by the National Conference of Bar Examiners (NCBE), the exam’s creators.

This idea is not so surprising when one considers the composition of the exam itself. For instance, the MBE­ — the multiple choice portion of the exam — assesses a bar taker’s ability to quickly read questions, weed out answers, and choose “the best answer” — all, of course, working from memory.

Forget the fact that the Bar exam only tests a select group of subjects within the law and that questions can be esoteric, arcane, and irrelevant to practice. Forget about the exam’s sordid history for test takers with disabilities. Or for diverse test-takers, or members of racial minorities who might experience stereotype threat. Or the exam’s history with any other number of people, who happen to not thrive in fast‑paced situations such as quickly reading and choosing the best answer in a high-pressure environment that determines your ability to earn a livelihood in your chosen profession.

Putting aside all of those inequities on the testing floor, such an approach hardly serves a lawyer in practice. Worse, making up a “best answer” from some vague, fuzzy concept in one’s memory, without thoroughly researching the law as it relates to a client’s particular scenario, could surely subject a lawyer to a malpractice suit. I have never understood how a type of test that is particularly antithetical to the job of an attorney is allowed to serve as a measure of minimum competence.

The Bar exam, even before the pandemic, has long been under fire as a means of measuring attorney competency. As Lauren Hutton-Work and Rae Guyse recently wrote in the Appeal:

“Legal scholars have long argued that the bar exam does not protect the public from incompetent lawyers and, instead, primarily serves to maintain a largely white profession. As it has in other spheres of life, COVID-19 has simply amplified the exam’s segregationist history and obvious inequities. …

A 2013 law review article explains that, initially, becoming a lawyer was an informal process based on apprenticeships, diploma privilege, or a simple oral exam. But, by the mid-1800s, the American Bar Association [ABA] began expressing concerns over the ‘quality’ of immigrant and ‘mixed-race’ applicants. When the ABA inadvertently admitted three Black lawyers in 1920, it asked its members to consider expelling the Black attorneys because of the importance of ‘keeping pure the Anglo-Saxon race.’”

Writing for the Washington Post, Valerie Strauss explains that, “as it became clear that overt racism would no longer be allowed, the ABA began to use the bar exam and law school accreditation to keep minorities out of the profession.”

These and other critiques of the Bar exam are not new. The ABA (yes, the same body!) now specifically calls for diversity and inclusion in the legal profession, a metric touted by almost every large law firm in America as well as almost every law school. But still, for a variety of reasons and interests, most states have continued to require the passage of the law examination to gain entry into the legal profession. After all, it’s merely a test of minimum competence, right?

III. Diploma Privilege

I have long wondered what this “minimum competence,” allegedly tested by the Bar exam, looks like. Sadly, at this point, the public has been introduced to it. It’s called “States’ 2020 Bar Exam Action (and Inaction).”

In March 2020, as the COVID‑19 pandemic began to become an increasingly larger problem nationwide, an all‑star cast of legal academics published a white paper calling on states to act quickly and immediately plan ahead for the July 2020 Bar examination. The authors identified multiple options for licensing and reviewed the feasibility of each option. Noting that “[t]he best scientific models of COVID‑19 suggest that the United States will suffer several waves of infection,” the authors concluded that postponement of an in-person exam was “very likely to fail.” The paper similarly outlined several concerns with respect to an online examination, including appropriate exam security and health precautions.

On the other hand, the academics described emergency diploma privilege­ — long used by Wisconsin — as the “most efficient way to get teams of licensed new lawyers on the front lines to help meet the legal challenges faced by our society as we first wage war to combat the virus and then rebuild profoundly damaged economic, social, and legal systems.” Under diploma privilege, applicants would be admitted to the Bar without taking a Bar examination, but successfully graduating from law school and satisfying certain other requirements like passing the New York-law-specific New York Law Exam (NYLE), the Multistate Professional Responsibility Exam (MPRE), and completing the mandated “character and fitness” assessment.

Around the same time as the white paper’s publication, United for Diploma Privilege-NY (UDPNY) formed, as did a larger coalition, United for Diploma Privilege. The New York chapter petitioned the New York Court of Appeals to grant emergency diploma privilege for this year’s graduating class and tirelessly worked to collect data on “examinees’ excruciating circumstances, including immunocompromised cancer patients working full-time while studying to avoid losing their health insurance; parents grappling to manage young children in the absence of operating schools and daycares; COVID-19 survivors struggling to handle rigorous study schedules during tenuous, slow-moving recoveries; emotionally-exhausted graduates serving as caregivers for loved ones who had contracted the virus; disabled candidates fighting to meet stringent requirements for accommodations requests that, in the context of a global health crisis, were unduly burdensome (if not utterly infeasible).”

Despite the legal academics’ and law graduates’ clairvoyant calls to action, few states heeded their warning: Only Washington, Oregon, Utah, and Louisiana granted diploma privilege for graduates from ABA-accredited law schools in response to COVID-19.

In March, the New York Court of Appeals postponed the July Bar exam to September. On July 16, the Court delayed the bar exam again due to concerns about both in person and online exam, and finally (at least for now), at the end of July, the Court announced that it will hold an online examination, created by the NCBE, in October.

Although online exams may seem like a practical alternative, as advocates have pointed out from the beginning, there were always bound to be security, equity, and feasibility concerns. Now, these concerns are no longer hypothetical.

At the end of July, Michigan’s online bar exam crashed about an hour into the exam, temporarily locking out examinees. ExamSoft, the software manufacturer, blamed the crash on a cyber attack. 200 test‑takers were affected, further adding to the particular anxieties faced by this year’s group of law grads. Nevada and Indiana, two states that initially planned to have online bar exams on July 28, both decided the week before to postpone the tests after users experienced delays when typing during practice tests.

On Sunday, August 16, at 11 PM, Florida’s online Bar exam was canceled, two days before its scheduled date of administration, only to be moved back two months without temporary licensure immediately available. As this Forbes headline describes, these 1,000 test-takers were stranded after already paying extra fees to take the exam on laptops. “Are you kidding me?” tweeted Seattle University School of Law professor Robert Chang, summing up the reaction of the thousands of law graduates.

Meanwhile, as of the time of this writing, plans are still under way to deliver an online examination in New York in October, and the Board of Law Examiners is purportedly looking into those issues faced by other states. However, New York Bar examinees far exceed the number of test-takers in other jurisdictions, and neither of the only two software providers has ever had experience administering a secure examination for such a great number of individuals at the same time. Finally, an enormous number of security and privacy concerns have arisen, including the requirement that everyone — including pregnant women — sit in full view of the remote proctors for 90-minute stretches on end without being able to take a bathroom break; a lack of clear accommodations for test-takers with disabilities; and the potential racial and ethnic disparities of using Artificial Intelligence (AI) and/or remote proctors.

IV. Rethinking the Bar

Luckily, there is another option for extending diploma privilege in New York: through the legislature. Two bills have been proposed, one with no specific hourly supervision requirement, and the other including 100 hours of supervision.

Moving forward, the legal profession has the opportunity to advocate for something new. This “new thing” may seem radical, but it really is not. The diploma privilege conversation is bubbling up to the surface in all walks of legal life and among all kinds of institutional stakeholders. For example, just last week, Michigan Supreme Court Chief Justice Bridget McCormack questioned whether the Bar exam truly tests competency and if it creates “unnecessary and unfair barriers to the practice of law.”

As someone who went through the Bar exam process in two different states over a three day period, I know how stressful it is, even on a normal year. I don’t wish that on my new colleagues. Instead, as a former legal services attorney, I can attest to just how expansive the access-to-justice gap is, and just how many clients are waiting for a good lawyer to commit the time and energy to their case. I can attest to how many of them, especially right now, simply don’t have the luxury of time to wait.

Surely we can re‑imagine an alternative. Surely we can conceptualize a practicum requirement, either able to be met while one is in law school, or in the summer thereafter. Surely we can envision a process in which one’s law school professors sign off on the individual’s competency and ability to practice law. Surely, if an examination continues to be a part of the licensing scheme, we can rethink the test itself. For instance, it can be more aligned with the Multistate Performance Test (MPT), which actually provides a candidate the opportunity to apply law to a certain set of facts and more closely mirrors practice — -albeit an overly simplified version.

But all of this is for the future. In the meantime, members of the Class of 2020 have more than put in their time. The class has been studying nonstop since May in the midst of a global pandemic, and is understandably burnt out. I am concerned about what this burnout means when my future colleagues are entering the profession in the midst of an upcoming foreclosure and eviction crisis, in the middle of the pandemic, an already fraught national election, and a “summer of racial reckoning.”

At an August 18 public hearing convened by New York State Senator Brad Hoylman and Assemblywoman Jo Anne Simon, multiple leaders spoke about the disadvantages for test‑takers with children, roommates, and family members. The uncertainty of their future is difficult to overstate. Law graduates have had offers rescinded, offers that family members were counting on to pay ever‑amassing piles of bills. Diploma Privilege for New York leaders­ — 2020 law graduates — discussed the life-or-death decisions that law graduates with disabilities or who are immunocompromised have to make in jurisdictions still attempting to administer an in-person exam. Cornell School of Law Dean Eduardo Penalver, speaking on behalf of all 15 New York law schools, observed that all of these challenges fall most disproportionately on the profession’s most vulnerable students. And as president of the Association of Legal Aid Attorneys, Jared Trujillo, discussed, that means that the most vulnerable clients are not being served.

Amidst this gloom, Senator Hoylman and Assemblywoman Simon’s leadership presents a glimmer of hope. Although the state legislature is currently on summer recess, it is not too early to write to your elected representatives and let them know what diploma privilege means to you.

Online, one can read a litany of anecdotes from current law school graduates about their lives right now. It’s not enough for them to shoulder this burden. Practicing attorneys must step up, too.

V . Conclusion

During that conversation with the incoming first-year law students last Friday, I sat outside looking at my Zoom group with an ever‑sinking feeling in my stomach. In my mind, the incoming law students’ optimism and commitment to public service so contrasted with the state of the legal profession right now as to be distressing. But, as I frequently do, I drew hope from Bryan Stevenson and Just Mercy, our source material.

Toward the end of the memoir, Stevenson recounts a powerful story about meeting Rosa Parks for the first time at a gathering of some of her friends in Montgomery. The legendary civil rights icon asked Stevenson to describe himself and his work. Stevenson tells Parks about EJI’s work with death sentence advocacy, wrongful convictions, prison conditions, excessive punishment, and racial bias in criminal justice. Parks listens for a moment, and then, laughing, tells Bryan:

“Ooooh, honey, all that’s going to make you tired, tired, tired.”

At that moment, another woman in the gathering leans forward, and tells him: “That’s why you’ve got to be brave, brave, brave.’”

I know right now that we are all tired, tired, tired. I have been mostly working from home with a toddler for the past five months, so I get it. But 2020 law graduates — especially those facing discrimination, food and housing insecurity, and so many other issues— — are tired in a way that I, as a white, able-bodied, cis-gendered, already‑practicing attorney — simply cannot comprehend. Thus, it falls on all of us to be brave, brave, brave.

I know it is hard. The legal field is, for the most part, a conservative profession, a profession insistent on preserving precedent. Calls for diploma privilege disrupt that precedent — the annual ritual of sitting for the Bar exam — and the commonly-held, unquestioned belief that such a ritual leads to a higher purpose. It also, of course, disrupts the profitable industries of bar administration and prep courses, which alone range from approximately $1,000 to $4,000.

Being a lawyer working for justice in an unjust world is a complex role. But my vision of being an attorney is one where we all push forward the profession toward justice. The time has come to “rebuild[] the ethical compass of law.” Diploma privilege isn’t an end, but it is an important beginning.

Long after our brains have forgotten the rules against perpetuity, statute of frauds, quasi in rem jurisdiction and other esoteric areas tested by the Bar, our profession will be remembered for how it treated its newest members in the midst of a global pandemic.

As lawyers, this is the “felt necessity” of our time.