It’s Time for Universal Diploma Privilege

JURIST Guest Columnist Brian L. Frye, conceptual law professor at the University of Kentucky College of Law, calls on the legal profession to adopt Universal Diploma Privilege. . . .

Sometimes, it takes a crisis to make a change. Especially for the legal profession, which is notoriously allergic to change, no matter how necessary. For decades, the legal profession has debated how and why to evaluate attorneys before admitting them to the bar. But it looks like the COVID-19 pandemic may finally force its hand.

COVID-19 has already massively impacted legal education. Every law school in the country suddenly went online in the middle of the Spring 2020 semester, some with a week or less notice to students and faculty. Professors are struggling to learn new technology and teaching methods on the fly, and students are struggling to learn already difficult ideas in a new and unfamiliar setting.

As a consequence, most law schools have decided to abandon the traditional law school curve, and adopt mandatory pass/fail grading for the Spring 2020 semester. It is hard to overstate how momentous a change that simple – and frankly, obvious – decision reflected. After all, ranking is embedded deep in the DNA of the legal academy. Many professors resisted, and even some students, but good sense soon won out. After all, in the best of circumstances, law school grades are notoriously unpredictable and comically divorced from any reliable assessment of knowledge or understanding. Chaos just made the pretext of objectivity untenable.

But what about the bar exam? Most graduating law students take the bar exam in July. Even before law schools went online, people started wondering whether a July exam was realistic. And the National Conference of Bar Examiners (NCBE) has now rescheduled until Fall 2020, circumstances permitting.

While the NCBE was right to postpone, its proposal is still unrealistic and unsafe. The pandemic may still be raging, and large gatherings of people will almost certainly be dangerous. A 2020 bar exam probably will not, and should not happen.

That is a terrible burden on graduating law students, who have invested immense amounts of time, money, and labor in the expectation that they would be able to practice law. No bar exam means no bar admission, which means no practicing law. Students are already losing job offers left and right and scrambling to find work, even as it dries up everywhere.

Not to mention the disruption in their studies. Law schools have already acknowledged that the pandemic makes it impossible to grade students on the traditional curve. But studying for the bar is no different, and the NCBE should admit the same. Students won’t receive the same educational resources, because their schools are closed. And many students will experience personal burdens that make it even harder to study for the bar exam.

So why have an exam at all? Why not just admit every student who graduates from an accredited law school in 2020 to the bar? After all, the “diploma privilege” is nothing new. Wisconsin adopted it in 1870, and New Hampshire joined in 2005, admitting any applicant who graduated from an accredited in-state school.

Many students have already called for a diploma privilege for 2020 law school graduates. And on April 5, a group of law professors circulated a petition, arguing not only that administering a bar exam would be unfair and unsafe, but also that we will need all of those new lawyers to help resolve the legal issues presented by the COVID-19 pandemic. After all, the number of unemployment, eviction, insurance, and tort claims, as well as bankruptcies, are likely to explode, and many of the people affected will need low-cost or pro-bono representation. Why not ensure more new lawyers sooner, who are ready to address the problem?

But maybe this is also an opportunity to ask why we don’t adopt a permanent, universal diploma privilege. After all, if a student has graduated from an accredited law school, they should be qualified to practice law. What is the purpose of administering yet another test, other than limiting the number of attorneys admitted to practice? While restricting competition is attractive to existing attorneys – especially the lowest quality ones – it is not a legitimate reason for limiting admission to the bar.

Of course, the ostensible purpose of the bar exam is to ensure that attorneys are competent to practice. But no one seriously claims it achieves that goal, except maybe accidentally. Sure, another test is yet another signal of a prospective attorney’s willingness and ability to memorize esoteric rules they will never apply in practice. We have plenty of those already.

A bar exam that actually tested objective competence might be justified. But that’s not the bar exam we have, and it’s obviously not the bar exam the profession wants. After all, when the bar increases the “cut score” on the bar exam, supposedly in order to police attorney competence, it doesn’t make the increase retroactive. If a particular score reflects incompetence this year, surely it reflected incompetence last year, and ten years ago as well? And if a prominent law professor can fail a bar exam, simply for want of time to memorize state-specific rules, who can seriously argue the exam is measuring competence?

If the legal profession cared about attorney competence, it would do more – anything, really! – to police the competence of the attorneys already admitted to the bar. While I teach professional responsibility, the real title of the class is “managing the legal cartel.” The bar exam is an integral part of that project. To my mind, that’s no endorsement. We should have abandoned it a long time ago, but there’s no time like the present.

Brian L. Frye is a conceptual law professor (IP, PR, nonprofits, art law, legal history) at the University of Kentucky College of Law. Brian is also a “Securities artist” and a host of the Ipse Dixit Podcast.