The Elephant in the Room for the Diploma Privilege Debate

Nationwide, 80% of first-time test takers pass the bar exam, and 90% will pass within two years. But 10% of takers will not have passed after two years, and some will never pass.

|The Volokh Conspiracy |

State Supreme Courts continue to divide about how to handle the bar exam. Some states still plan to hold in-person exams. Other states plan to hold a remote, online exam. And some states plan to give an emergency "diploma privilege." Applicants who had already registered for the July 2020 bar exam would be admitted to the bar, with certain conditions; for example, they may have to take additional CLE classes, or serve in some sort of "apprenticeship" function. But they will not have to take an exam.

With the diploma privilege, 100% of registered test takers will be admitted. In 2019, nearly 80% of those sitting for their first bar exam passed. Simple arithmetic tells us that nationwide, 20% of first-time test takers failed. In a state with an 80% pass rate, on average, about 20% of first-time takers will have failed the bar exam. With a diploma privilege, those 20% who would have failed will now be admitted.

We also know that nearly 90% of law graduates pass a bar exam within two years. Let's assume a state with a 90% two-year pass rate adopts a diploma privilege. Approximately 10% of test-takers who would have not passed within two years, could now be admitted without an exam. To be sure, some applicants may quit after their first failure. Others take the exam multiple times, and keep failing. For example, one person failed the Illinois bar 8 times. With the diploma privilege, these graduates who would have failed multiple times will now be admitted to the bar, without examination.

The applicants who fail the bar once, or multiple times, are the elephant in the room. Let's assume that the bar exam is a meaningful indicator of competency to practice. If that fact is true, the diploma privilege should not be awarded to the 10% of applicants who will not be able to pass the exam. But how can we know in advance who will fall into that category?

The Louisiana Supreme Court indirectly addressed this problem. (See my post from yesterday). First-time test takers are given the diploma privilege; people who previously took a bar exam have to take an online exam. The former are deemed "qualified" and the latter are deemed "non-qualified." Now, the Louisiana Supreme Court did not indicate that those who have failed a bar exam are deemed non-qualified. That approach would have been too blatant. Instead, the Court said a person was non-qualified if he or she "previously sat for any bar examination in any state or territory."

That category would sweep in those who previously failed the bar exam. Unfortunately, Louisiana's non-qualified category is also over-inclusive. A person who passed the bar in one state, and wanted to take the Louisiana bar for a second admission, would be blocked. Though a person with one law license already has some means of employment, so the situation is not as dire.

The Louisiana Supreme Court, in so many words, was singling out applicants who failed, and excluded them from a diploma privilege. The Court effectively put second-time takers on academic probation–the same way law schools force students with low GPAs to take required courses.

Justice Genovese noted this disparity in his dissent:

The emergency, if any, is not allowing over 500 applicants into the practice of law without testing and a proof of competency. It should also be noted that the statistics show that approximately 25% of bar exam applicants fail the bar exam. That system of checks and balances will not be had. All bar applicants are let in, and over 100 bar applicants will be given a license to practice law when they should not have been. What other professions are allowing a professional license without testing?

As did Justice Crain:

The inequities and inconsistencies spawned by this decision are too many to number. Why is taking the bar examination not safe for those "qualified candidates," but safe enough for those who are not "qualified candidates"? The latter will be tested in August and October. Are they not affected by the pandemic? Why should a person who took the bar previously, but failed due to unfortunate events that undermined their preparation, now be denied a "diploma privilege" when we know at least twenty percent of these 2020 applicants would have also failed? As applied, the order rendered by the majority is unfair and results in disparate and random treatment– the type of injustice the judicial system should seek to prevent and remedy. Equity does not demand that a select few applicants be admitted, but that all be tested.

Debates about the diploma privilege should be more candid about this elephant in the room. For most applicants who pass the bar, the privilege merely saves them the trouble of sitting for the exam. They'll pass. But for some applicants who will not pass the bar on several tries, the privilege lets them bypass a hurdle they could not otherwise clear. Perhaps states should be more candid and simply deny the privilege to people who have already failed the bar. They are the people most likely to fail again. Yet, that approach would place an even greater burden on those who face great difficulties. This entire experience may demonstrate that the bar exam, as it is present constituted, should be jettisoned altogether. The Boards of Law Examiners will have to realize that their future may not involve exams.

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  1. Our very stable genius President would object to this snide insult, or he would, if he were intelligent enough to detect such subtlety.

  2. “With the diploma privilege, these graduates who would have failed multiple times will now be admitted to the bar, without examination.”

    OK, but they’ll still have trouble finding employment with established firms, and presumably the discipline committee will be standing by ready to pounce on anyone who truly should not be practicing law.

    1. As to your last point, perhaps, but I assume we both have seen many who should not be practicing but yet are never disciplined.

      Since I’m semi-retired, I only give cursory attention to the reports in the Michigan Bar Journal of discipline. However, I would estimate that those reported disciplines do not exceed 100 to 125 per year. Since the State Bar of Michigan has over 45,000 members, this is not a big proportion; of course, maybe most of us are just of sterling character and competence … ;=))) (BTW, since you may consider it material, we do have a Unified Bar in Michigan.)

    2. No, I’ve seen too many incompetent lawyers — I’ve *hired* too many, and the bar committee is a joke.

      And I think that the 20% is low — I’ve seen twice that from some schools I’ve looked at. And a lot of the never-passed folk wind up in academia with their law school diplomas on the wall, with no one knowing the difference.

      1. How many lawyers have you hired, exactly?

      2. And a lot of the never-passed folk wind up in academia with their law school diplomas on the wall, with no one knowing the difference.

        I see that Dr. Ed is back to making things up, after at least an hour break for a meal.

      3. “I’ve seen too many incompetent lawyers — I’ve *hired* too many”

        So I shouldn’t let you hire lawyers if I want them to be competent is the point you wanted to make.

      4. I checked recent results for Louisiana and somewhat more than 30% failed. Louisiana is also one of two jurisdictions that do not use the multi state exam. I don’t know much about bar exams.

    3. “Yeah, I lost the house and couldn’t afford the surgery that would’ve made it possible to dance at my daughter’s wedding because my lawyer–who didn’t carry malpractice insurance–didn’t realize that different procedural rules applied to my otherwise meritorious med-mal claim.

      But the state took away the license that he stopped using, for lack of clients, 27 months ago!”

      1. That sucks for you but protects the rest of the public. Which is the point of licensing lawyers.

        Now, why did you hire an incompetent practitioner in the first place?

  3. “This entire experience may demonstrate that the bar exam, as it is present constituted, should be jettisoned altogether. The Boards of Law Examiners will have to realize that their future may not involve exams.”

    What method do your propose? I realize there is a CLE and Transition Program requirements you mentioned in the earlier post. I’m unsure these are sufficient however.

    While the Bar Exam per se alone may not be a sufficient gauge, the Bar Preparation Courses (which I assume are offered in all States) are invaluable. While it’s been 51 years since I took one of the two then offered in Michigan, it seems it consumed a good 30 to 40 hours of in-person lectures, plus the time in studying the written materials. In addition to the review of certain principles learned – but forgotten, and thus probably not frequently to be encountered in practice – over the previous three years, they provide invaluable coverage of state-specific law not often encountered in the law school curriculum. Loss of any of this would be a handicap.

    The Exam itself though seems the best gauge of who actually understood something and who just skated through by “dazzling w/ B…S…”; I’m uncertain of what could be an appropriate alternative measure. Now admittedly you’re probably addressing the current format of most of the exams and their possible deficiency; back then this was before the Multi-State portion of the exam, it then consisting in Michigan of 40 essay questions and answers. This was an admirable preparation for the analysis of issues and generation of legal writing.

    Finally, there was the experience of “sublime pressure” in the preparation for and taking of the exam. Admittedly, the practitioner will gain this experience in the challenges presented by opposing counsel and the courts before too long, but being forced into it early on will never hurt. [Besides, I would miss not being able to reflect on the 20 hours of “torture” over 2 and a half days which I had to undergo in taking it … and the relief which followed when it was finally behind me …]

    1. Moment of silence for Barbri.

    2. “What method do your propose? I realize there is a CLE and Transition Program requirements you mentioned in the earlier post. I’m unsure these are sufficient however.”

      You could look to the Commonwealth, and adopt Articling. Most new lawyers do work under the supervision of a skilled practitioner, anyway. Formalizing it as a requirement is likely more effective than CLE classes. Residency works for medical practitioners. Or you could follow the models of accounting and IT, and offer certification in specific practice areas, which matches the way most legal practice is actually done. Criminal defense lawyers do criminal law, and rarely venture into other practice areas, and the same is true for most other practice areas. A small number of lawyers actually take on any case that comes their way, but we license all of them as if any lawyer has to be able to handle any case.

  4. Diploma privilege should be accompanied by certain minimum graduation requirements. Until this year, Wisconsin was the only state with diploma privilege. Their Supreme Court also mandates specific graded coursework that is not mandated at schools in other states. For example, University of Chicago and Columbia don’t require Trusts and Estates or Business Orgs (brutal classes by the way) for graduation. To all of a sudden wave those requirements in IL and NY for graduates is outrageous.

    1. waive* phonefagging

    2. Why? I didn’t take either class in law school, and it’s presented exactly zero problems in my career—and not because of what I learned studying for the bar.

      1. I skipped Wills and Estates and got two essays on my bar exam that were inheritance problems. D’oh! they listed it fair and square on the topics list. I got to my last semester, and had to choose between Bankruptcy and Wills and Estates. It was the Great Recession, so Bankruptcy seemed the better choice.

  5. The discussion seems to be originating from likely flawed assumption that the exams are somehow terribly unsafe compared with everyday living that we all must continue, Covid or no Covid.

    Just have the damn exams.
    Wear a mask. Have some hand sanitizer around. Move some chairs.

    Medical licensure exams continue, with minor adaptations. Three different exams occur during medical school, of of these, one section, that which involves in-person physical exam of live standardized actor-patients (like Kramer in Seinfeld), is delayed for now. The other two exams are going forward. The delayed exam will not delay licensure as this test is taken mid-way through the medical school curriculum, a couple years from completion of the exam cycle. The third section of the test taken during internship year after med school, and is still on too. Fully tested and licensed physicians were minted this spring. Next year too.

    1. USMLE Step exams are taken at Prometric test centers which are generally smaller rooms. Bar exams are taken in convention center halls with hundreds of people sitting close together.

      1. My CA exam was taken at a convention center, but we sat one to a table, which was three to four feet long. I think there wasn’t a six-foot separation between tables, but it was at least a couple of feet. Plus, a number of people bailed on the second day, so there was plenty of social distancing. My NV exam was taken in a meeting room at a casino, and there was plenty of room. It can be done.

        1. For my exam we had at least 3 feet, easily. Why not just rent a second space? Most these spaces aren’t being used. You could probably rent them for a dollar.

          1. You have to be able to observe all the candidates to be sure they aren’t cheating. That’s why bar exams are held in hotel ballrooms. You can watch a lot of people that way.

            1. I’m sorry but all these complaints that bar exams ‘must’ be given a certain way, therefore they must be unsafe, that’s really silly.

              You can certainly proctor 500 examinees in groups of 5. You might need to do it more than once, you might need to do them in 100 rooms with 100 proctors, but you can certainly do it.

              Or you can even think outside the box and give bar exams open book. You could give the MBE the way the MPRE is administered. You could tack on a standardized test at the end of 1L year, removing a few subjects to streamline it (I like this approach as law students often start clinics after their first year).

              What we should be wary of is either doing things the way they’ve always been done, or just throwing the whole concept of a license standard away. We know the current bar exam has many outdated problems and we also know a JD doesn’t necessarily mean… anything.

              Some people seem to think the point of DP relief is to solve a problem of racial disparity, but the disparity wasn’t the passage rate. The disparity was the educational result. Solving that is very hard, but pretending we solved it will only entrench the injustice.

  6. How much of the Louisiana bar exam, in particular, depends on the peculiarities of the ‘uncommon’ Louisiana law? I can’t say exactly how that should factor into the equation, but it might be a peculiar factor in giving different consideration to in-state graduates.

  7. As the years since I took the bar have passed, I have thought less about it, but I never thought the bar exam was a great way to winnow out those who would be poor at practicing law.

    But the bar exam has a function now that was less important when I took it (1976). It is a check on law schools who drive their curriculum off the social justice cliff. If they do that, their grads will flunk the bar, and word will get out to avoid that school.

    That’s a positive for the bar, for their poor clients, and for American society.

    1. Its more a check on law schools that admit underqualified students and then, due to grade inflation, pass them through with a diploma and they emerge the same slacker/idiot they were when they came in.

      In my graduating class there were 2 types of people who failed the bar: Alcoholics and kids in the bottom 30%.

      1. Yes; alcoholics can never pass a bar.

        1. Oh they do, but they also fail. There are a lot of alcoholics in law schools.

          1. “There are a lot of alcoholics in law schools.”

            There’s a few in law firms, too.

  8. I don’t understand why attorneys are not conditionally admitted but still required to take a future exam. Seems a reasonable middle ground – particularly if attorneys with diploma privilege need to be supervised by another attorney as a safeguard.

  9. It might be interesting for some law professor to come back 20 years from now and track the “diploma privileged” classes, seeing if there’s any greater incidence of malpractice suits, disciplinary proceedings, etc.

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