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Monday, April 13, 2020

More on the Utah bar proposal

Some scattered thoughts, adding to my post last week about the Utah Supreme Court's pending bar proposal, the proposal that permit graduates from law schools with at least an 86% rate of first-time bar takers (in any jurisdiction) to be admitted under the supervision of lawyers as elaborated in the proposal.

First, some of the commentary, including by BYU's dean, Gordon Smith, suggests that this is considerably more generous than Wisconsin's diploma privilege for the two in-state schools.  What is missing from this account, however, is a more detailed description of the Wisconsin rule.  Wisconsin requires that graduates of the University of Wisconsin and Marquette complete at least 60 (of their 84 required credits) in specified bar-related subjects.  There is no such requirement in the proposed Utah rule.  This difference is rather fundamental.  

Second, any implication in this proposal that graduates will help close the access to justice gap in their work with supervising attorneys is speculative.  Readers may recall that this ideal undergirded the New York Court of Appeal's proposal, spearheaded by then-chief judge Jonathan Lippman, for 50 hours of mandatory pro bono work.  There is scant evidence that this has moved the needle in New York.  Part of the problem, not unexpected, is the dearth of attorneys willing to undertake supervision of students doing this work.  We can imagine similar problems in Utah after the adoption of this proposal.  On some of the larger issues raised by efforts to yoke bar admission to an A2J rationale, I commend Paul Horwitz's terrific post here (not only for some insights on this topic, but on many other elements of these complex issues).

Third, Derek Muller has a thoughtful post here that, as he notes, comes at the issue from the opposite direction as I did.  That is, he worries that the proposal is too inclusive, in that it sweeps many schools whose graduates might not be successful in Utah.  This seems to me a plausible and important argument.  However, his suggestion that the remedy be to limit the scope of the rule to just BYU and Utah raises protectionist considerations. (And I remain unmoved by the argument that because Wisconsin does something like this, it's not problematic to do this again). Moreover, the fact that a very small number of out-of-state students are affected is small solace to that group.  Sure, the supreme court set the cutoff of April 1. But whether they can or will stick to it in the face of what will surely be objections, if not legal action, by individuals who would aspire to become admitted in Utah under these new standards, remains to be seen.

Finally, we should reflect, as I said earlier, on exactly what this proposal means for our state-by-state system as a whole.  Coming back to Professor Muller's point, if Utah and Wisconsin give special rules for their in-state schools, what we do make of a nationwide move to do likewise? For those of us who think that the lawyering world is better without artificial borders, this development is unsettling.

Posted by Dan Rodriguez on April 13, 2020 at 03:45 PM in Daniel Rodriguez | Permalink


Insofar as Prof. Merritt's comment is directed in part at my post, I am grateful for it and certainly will do my best to read her response, here or elsewhere. (Usually my default is disabling comments, as it is for many bloggers elsewhere; I tend to reverse that default only when I'm sure I have the time and energy to monitor and respond to comments, which I often don't.) I'll offer some responses here, though, albeit not elegantly.

I acknowledge that Prof, M. and her co-authors may have different preferences from the ones they explore in a joint work; I say so in my first post and commend them there for thinking about the issues and exploring various options. I am happy to assume that new lawyers as a general matter are an important part of a pipeline in providing legal services, although I'm not sure that maintaining continuity in that pipeline is identical, for purposes of urgent solutions, to the urgent problem of client services for virus-related issues in the moment. I agree that pro bono services face an expertise problem and have written here before about ways in which I think pro bono work ought to be rethought in ways that put clients first, although again, for purposes of responding to an urgent situation, it seems to me that lawyers with *some* experience are preferable to lawyers with none and that, if we're thinking about bold solutions, we ought to give at least *some* thought to channeling lawyers who *do* work in a particular subject area, but in a different and (relatively) less affected state, to providing services for clients in the places and with the problems that most need help. I take no view on exactly how dire it is to require a bar exam at some point in the future, but I did make clear that I think there is plenty to recommend supervised practice and plenty of reasons to do something other than a bar exam, now and later.. I think I acknowledge in both my posts that the authors are focused on the moment and not on long-term changes, although I'd add two points: 1) part of the value of focusing on the moment itself, and of thinking about each problem clearly, functionally, and separately, is that it helps us to distinguish between what is genuinely focused on the problem at hand and what may end up sliding into the long term; and 2) while there is no clear line between the shorter and longer term, I worry that *some* language, such as "will grow" or worries about burnout or speculating about "July 2021 or later," however understandable, end up pushing our thinking past the point at which we have clear knowledge about the situation or about urgency and into the longer term. I have no interest in telling current graduates that entry to the profession is closed until further notice. That said, 1) telling them they can practice under supervision now but may have to take a bar exam later, while quite possibly silly or ill-advised in my view, is certainly not the same as telling them entry to the profession is closed for further notice (but telling them that entry to the profession is open but only subject to careful supervision, even if that limits full entry into the profession for all graduates, may or may not be the wrong approach but is certainly not silly); and 2) entry to the profession as a concern in itself may overlap, with but is not identical, either to addressing an access-to-justice issue or addressing graduates' immediate financial needs.

We may disagree about particular things, but both what Prof. Merritt writes in the co-authored pieces and what I have written here serve the same function: to consider various problems and various possible solutions and their merits or demerits, relative to each other and relative to some *specific* and urgent problem that we are trying to address. This is one reason I think it's necessary to think carefully about what those problems are in specific terms and to avoid too readily eliding them or their solutions.

FInally, I agree that outside-the-box thinking is called for; I think it's *always* called for. Part of that thinking may include not only thinking about standard approaches relevant to normal times, like ensuring an ongoing pipeline of new lawyers, but non-standard approaches, such as re-channeling the efforts of existing lawyers, requiring more sacrifices by law schools and law firms, and so on.

As I said, I'll look for a longer response elsewhere, while understanding that she and her co-authors may have other and more important things on their plate. Similarly, while I hope to read comments here, other duties may keep me from doing so.

Posted by: Paul Horwitz | Apr 14, 2020 7:43:19 AM

One of the things I have learned, both from my work as a clinical professor and through ongoing research with new lawyers and their supervisors around the country, is that firms, government agencies, and organizations serving the "little people" rely upon a steady pipeline of new lawyers. Local prosecutors, public defenders, family law firms, PI firms, consumer law firms, immigration firms, employment firms that serve employees or small businesses, legal aid offices, and many nonprofits and state/local government agencies all tend to hire students who work part-time for them during law school, then transition to full-time work after graduation.

These students/graduates perform a lot of legal work before receiving their licenses, and the employers rely quite heavily on them. As soon as they are licensed (often, literally, the day after) they appear alone in court and assume much more responsibility. This pipeline is a key part of providing access to justice.

That context informs my press for courts to keep this pipeline moving. The type of work these employers do will grow enormously in the wake of covid-19's economic fallout, and it is essential to admit new attorneys to serve these clients. These are also fields in which attorneys tend to experience burnout (or use their experience as a platform for gaining work at larger, higher-paying firms), leaving after a few years. Pro bono attempts are well meaning, but won't serve these needs effectively because lawyers in other practice areas don't have the needed expertise. As a part-time prosecutor I can tell you: don't let a business lawyer handle your DUI or other misdemeanor!

The new rules allowing temporary practice partly address this need, but in a strange way. They say that new graduates are competent to perform this work with limited supervision (in some states, without the supervisor being present in the courtroom, during client meetings, etc.) but only until a bar exam is offered. Whenever that happens, the lawyers will have to take weeks off from their jobs to cram the memorized rules that the bar exam tests. How will that serve the needs of clients?

I'm hoping to find a venue in which I can respond to some of Paul H's thoughts, since he doesn't allow comments on his posts, but I'll note this for now on this related post: I'm not trying to redesign the bar exam for the future. In fact, I would choose different approaches than the ones I and my coauthors have proposed for this emergency. I suspect most of those coauthors would also have different preferences. But this is a crisis in which we have to be willing to think outside the box. We may not be able to offer an in-person bar exam until July 2021 or later. And we are woefully behind other professions in developing online exams that can be remotely proctored. Are we really going to hang up a sign telling graduates, employers, and the public: "Sorry, entry to our profession is closed until future notice"?

Posted by: Deborah Merritt | Apr 13, 2020 8:00:42 PM

Thanks, Dan. I should clarify, to the extent my post is unclear, I don't really *worry* about the policy being too generous--I think it's fine if it's generous (or, at least, I think it's generous!), and I don't call for Utah to restrict its policy to just two in-state schools! I just don't think it's stingy to exclude *some* out-of-state schools. I think it may not be the greatest fit in the world, but I think (and I agree with you!) it's *good* of states to think about out-of-state diploma privilege as well as in-state. (For what it's worth, I wholly endorse moving away from the borders-based licensure approach. But, I think it's also helpful, as Paul's thorough post makes clear, that these long-term solutions also need some long-term structural planning.)

Posted by: Derek Muller | Apr 13, 2020 5:09:36 PM

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