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John J. Zefutie Jr.COVID-19 and Thinking Beyond the Bar Exam

April 14, 2020

Last week, I wrote about the Supreme Court of New Jersey’s order cancelling the July 2020 bar exam and expanding certain provisions of Rule 1:21-3 to allow 2020 yet-to-be-licensed law school graduates to practice law under certain restrictions. On Easter Sunday, the Editorial Board of the New Jersey Law Journal published a commentary entitled Even in Time of Crisis, Hold Fast to Bar Exam. The Editorial Board disagreed with a recommendation made in The Bar Exam and The COVID-19 Pandemic: The Need for Immediate Action (the “Pandemic Report”), a white paper drafted by eleven legal educators who propose, among other things, the “diploma privilege” as a means for addressing the needs of law school graduates, the legal industry, and the public.

The “diploma privilege,” the New Jersey Law Journal reports, originated in Wisconsin, and it currently permits graduates of Wisconsin law schools to practice law in Wisconsin without taking a bar exam so long as those graduates complete 60 course credits in certain areas of law. The Editorial Board criticized adopting this approach in New Jersey, reasoning:

[W]e do not think the current crisis is the appropriate time to “reinvent” the primary gate-keeping function for entry into the profession. While, as with any metric of human endeavor, we can certainly debate particular flaws in the current bar exam system, its basic function to establish at least a presumption that someone is competent to practice law—in whom clients may entrust the most essential aspects of their lives and affairs—remains an essential prerequisite.

While I strongly agree with the Editorial Board’s objective of establishing a presumption—or baseline—to measure whether someone is competent to practice law, the COVID-19 pandemic, I think, gives us an opportunity to revisit (and not necessarily “reinvent”) what is required for admission into the law profession. Indeed, individuals in virtually ever walk of life have had to reassess and recalibrate how they live their daily professional and personal lives. Admission to the legal profession shouldn’t be exempt from that process.

Quite apart from Wisconsin’s diploma privilege, the Pandemic Report offers another alternative—the supervised practice rule. Indeed, the Supreme Court of New Jersey temporarily adopted a version of that rule on April 6. In its simplest form, the supervised practice rule permits jurisdictions to license law graduates who complete a predetermined number of hours of supervised legal work and submit an affidavit from their supervisors that they successfully completed that work. This option, according to the Pandemic Report, would offer a “rigorous assessment” of a law graduate’s competence in a wide range of knowledge and skills prior to bar admission.

In other words, this approach permits law graduates to “practice practicing” under the tutelage of a more experienced lawyer. In that sense, it is similar to the historical tradition of “reading the law,” but with the additional backstop of a formal legal education. We should at least consider this alternative going forward. Like all crises, the COVID-19 pandemic will pass, and right now we should think about ways of doing things better and more effectively. Here are some general considerations for thinking beyond the bar exam and adopting a form of the supervised practice rule.

Law Graduates Will Develop Critical Skills. All too often I hear young lawyers who have passed the bar exam complain they entered the profession and didn’t know how to practice law. Properly implemented, a supervised practice rule addresses that very concern. In many ways, the legal education system is akin to learning to play baseball by studying the rule book and then walking onto the mound without ever having thrown a pitch. That is a crude introduction to our profession and an ineffective way of learning intangibles such as negotiations, oral argument, questioning a witness, or developing a long term case strategy.

Lawyers Learn More About What Kind of Law They Want to Practice. Many times, law graduates enter the profession thinking they want to be litigators until they’ve drafted their first brief or engaged in their first large scale document review. Or, many think they would like to practice tax law or engage in deal work only to find that they really want to work in the courtroom and address a jury. Qualifying lawyers through supervised practice gives new lawyers both a runway and a plethora of opportunities to test their ideas about the type of law they want to practice.

The Supervised Practice Rule Avoids An Unnecessary Cram Session. Preparing for the bar exam is an intense eight-week cram session (depending on the jurisdiction) where many law graduates memorize dozens of outlines and study guides and take practice tests. And after the bar exam is over, they crash. In the 15 years I’ve practiced law, I’ve never told a client, “I remember learning about your issue while studying for the bar exam.” But I have relied on my prior experiences to advise my clients on the best course of action. And let’s face it, many fine lawyers do not pass the bar exam on their first try due to illness or some unforeseen circumstance that arise on testing day.

There is a “gatekeeping” function already in place. The Editorial Board states that we need not abandon the “primary gate-keeping function for entry into the profession.” I agree. But that gatekeeping function does not have to be the bar exam. Why not law schools? Admission to law school is no easy task, and graduating from law school can be equally daunting. It seems that earning a juris doctorate is sufficient “gatekeeping” that both protects the public and instills confidence in the bar.

All lawyers need mentors. Finally, I cannot overemphasize the need for mentors in our profession. I was fortunate to have several great mentors who helped shape me as a lawyer. And many law clerks develop long-lasting relationships with the judges for whom they clerk. Many other lawyers, unfortunately, enter the profession only to process documents, research footnotes, and draft brief points while having no mentor to help them along the way. Supervised practice fosters mentorships between and among members of the bar and results in a more collegial profession in the long term.

Perhaps we are not ready to change the old way of doing things, and I’m not saying changes should happen overnight. But if anything constructive can come from this collective “pause,” we should give thought to ways of doing things better and with better results for the bar and for the public.

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