Matter of Emergency Modifications to Utah Supreme Court Rules of Professional Practice, Rules Governing Admission to the Utah State Bar – Comment Period Closed April 16, 2020

Special accommodations for judicial clerks should be included. If I had passed another bar exam, say California in 2016, but accepted a clerkship in Utah and have accepted a job offer in the fall, the proposed order would not include me. Shouldn’t clerking for Utah courts and being mentored by a Utah Judge account for something? The criteria is too limited.

I understand that social distancing, stay at home directives and other measures designed to protect the health of the public present unique challenges in connection with traditional procedures, including administration of the Bar Exam. I do not believe, however, that it is a wise decision to permanently excuse the graduating class of 2020 from ever taking the bar examination in order to obtain a license to practice law. There are a few reasons for this belief. First, the bar examination tests a broad range of legal subjects. Not all law graduates study all of these subjects during their three years in law school, nor are they required to do so in order to graduate. Some of these subjects are studied, for the first time, during the bar review classes that most graduates take in preparation for the bar exam. Without this preparation, and the subsequent testing, some attorneys are likely to receive a license without any knowledge of, or with, at best, an inadequate knowledge of legal matters that are considered fundamental to the practice of law, thus exposing the public to risk. Second, there are no standards to determine what “supervision” will be adequate to prepare a lawyer for the practice of law, like there are in the NLTP program. Moreover, even if standards could be designed, the type of supervision provided is likely to be inconsistent, and, in some cases, may be wholly deficient. Administration of such “supervision” to provide consistency and fairness will be extremely difficult at best. Third, the bar examination is an “equalizer.” For those who take and pass the examination, it conveys a level of competence that is measured on a national level. The public is entitled to this level of confidence when they retain any attorney with a license. Furthermore, lawyers who receive a license, but do not take the bar exam, may be relegated to a type of “second class” status for the rest of their professional career. For these reasons, I suggest that the Court not enact the proposed rule, but, instead, either (a) design a way for applicants to take the bar exam (and the review course) remotely, or in some other way that adheres to current CDC guidelines, i.e. use a very large exam location where applicants can be screened upon entry and be socially distant during the exam, or (b) award a license, as proposed, but only on a temporary basis, with the requirement that all such temporary licensees take and pass the bar examination at the next opportunity when it can be conducted after the health crisis abates.

Granting Utah State Bar Admission without sitting for the Utah State Bar is irresponsible. All Utah Attorneys are subject to hardships during this COVID-19 pandemic. Law School Graduates over the past year should be required to pass the Utah State Bar during a 3 year period extending through 2023, and their licenses conditional until they pass the Utah State Bar.

Regardless of what other states decide to do, would graduates who otherwise would qualify to be barred, but who work as law clerks in other states, be able to have their hours worked under the judge count toward the 360 “supervised training” requirement and to be barred in Utah? The order currently specifies that the “supervised training” has to be under someone with a license to practice *in Utah.*

I don’t believe the Rule should be retroactive to May 2019. That is inconsistent with the COVID-19 pandemic and the very purpose of the proposed rule. I don’t believe it is appropriate to exempt 2020 graduates from taking a bar examination at all. I would favor a requirement that they take and pass the Utah Bar examination within 12-24 months of graduation. A total exemption from taking the Utah Bar examination is not in the best interests of the public, the purpose of the Utah Bar itself, and I believe this will stigmatize these graduates as lawyers who never took or passed the Bar examination. I think the Supreme Court’s proposed rule goes way too far — unnecessarily too far — beyond the need for the moment. I would request that the Rule be modified to apply to 2020 graduates only (not 2019), and have as a condition that they take and pass the Utah Bar Examination within 12-24 months of graduation.

I commend the Utah Supreme Court for identifying the need to cancel the July Bar Examination, while also recognizing the need to provide an alternative pathway for applicants to gain admission to the Utah Bar. The potential hardships to applicants, employers, and potential clients is a serious concern, but I question why the Emergency Admission only applies to graduates between May 1, 2019 and June 30, 2020. The hardship to an earlier graduate who delayed taking the bar exam in order to start a family, support a spouse, or tend to medical needs but meets all other requirements should similarly be relieved of the hardship of the cancellation of the July Bar Exam, where their life plan was dependent on the very reliable administration of that examination. Also, the graduation dates proposed exclude an early graduate of the Class of 2019 simply because they graduated early.

Removing the Recent Graduate requirement that applicants graduated between May 1, 2019 and June 30, 2020, would not decrease the quality of legal services provided; would allow the Utah legal community better match the increased demand for legal services; and would equally remove the hardships among first-time test takers, regardless of date of graduation.

Additionally, I view the proposed Emergency Admission through a supervisor/apprenticeship model as beneficial to the current admission by examination method, and hope it becomes a permanent route to admission. Neither I, nor anyone I know, feels that they were more prepared to practice law because of the time they spent preparing for and taking the bar exam. This will also help level the field for those who cannot afford a prep course and/or 10 weeks of unpaid study time. However, 360 hours, or better yet, 500 hours of supervised time would help to prepare applicants for the practice of law.

I am concerned that this modification removes the requirement that the applicant demonstrate professional competence. Ordinarily, among various other standards, an applicant must achieve a minimum score on the Utah Bar Exam; the exam provides an objective indicator of competence to practice law, and thus serves and protects the interests of the community. The process as outlined in the proposed order mandates no threshold of ability. Rather, an applicant may simply watch continuing legal education videos and attend workshops–in essence, a continuation of law school, except law school comes with final exams and a forced curve. This order affords applicants not capable of passing a bar exam the opportunity of a lifetime; it is unsuspecting public who pays the price when hiring an attorney lacking in professional competence.

If, indeed, a bar exam is not needed to ensure competence and protect the public, then perhaps Utah should consider completely removing the examination from the admissions process.

Provisional acceptance of these applicants, and full membership upon passage of the Utah Bar Examination within a reasonable time period, balances this unprecedented pandemic with the need to ensure a minimum level of professional competency among members of the Bar.

I have no problem with a diploma privilege, but there is no logic whatsoever in limiting it only to recent graduates who have not sat for another bar exam. If someone has applied for the July exam and would otherwise qualify, they should also be allowed the privilege. I am one such attorney–licensed in NV, graduated from BYU–and I am currently slated to take the exam in July. I have already moved my family to UT in anticipation of taking the July exam.
This year’s graduates are in a tough spot, and efforts to help them should be applauded. But I and others in my situation will be greatly and unfairly prejudiced if forced to wait until the Fall or beyond to sit for the bar, while less-qualified, inexperienced applicants are allowed to practice. The diploma privilege should be extended to all qualified July exam applicants.

As a semi-recent law school grad and survivor of the Utah bar exam, I would be lying if I said I wasn’t jealous of this proposal. You mean I can get REAL world experience AND get paid at the same time in lieu of the bar exam?! It’s a novel concept, really. Of course I’m on board! I spent three solid months of my life studying from sun up until sun down. I took out MORE student loans (after the thousands I already took out just to get to that point) and my husband worked tirelessly so we could financially survive while I went without pay to study for this wretched test. And do I think it even remotely tested how competent I am as a real-life attorney? Absolutely not. Do you think I retained even a sliver of all the flashcards I memorized? Nah. I brain dumped that crap about 30 minutes after the last day of the exam.

My concern with this proposal is, like the new lawyer mentor training program, the system can be cheated. Everyone knows someone who has a good friend who has a sister who has a neighbor who is a attorney and who will sign off on the hours without having to put in the work. The bar exam, on the other hand? There’s not a whole lot of ways to cheat the bar exam. And if you can figure out a way to do it without getting caught, I give you props. There has to be some way to “fail.” The bottom line is: this system can be cheated.

The other concern I have is that it takes away from ones ability to choose their career path right out of law school. What if someone wants to open their own law firm right out the gate? And now they are required to spend 360 hours within a 6-7 month period under someone else or putting that time in as volunteer hours. While that’s all great and dandy, when opening your own firm, time is money!

This procedure also requires one to practice law. I know it sounds weird, but bear with me. What if someone starts practicing law and they decide it’s not for them, or they want to pursue another avenue for a little while, but they still want to maintain a active or inactive status with the Utah State Bar for whatever reason? I would be lying if I said I haven’t questioned whether I actually wanted to practice law the first year out of law school. A lot can happen in ones career in a 6-7 month timeframe. Well, now your license to practice law is contingent on practicing law.

Also, from what I can tell, the new proposal is fairly consistent with the third year practice rule. Speaking from experience having used the third year practice rule in law school, it is kind of a logistical nightmare. You have to obtain written consent from clients to appear on their behalf. That’s embarrassing! If you have a bar number behind your name, clients don’t usually think twice. But if you have to stand before the court and say, “Well, Your Honor, I technically don’t have a bar number yet because I was a COVID-19 graduate and now I’m required to do hours instead of the bar exam….” You lose face and trust with clients because they think you are unqualified because you don’t have a few digits behind your name. It’s unfair, but it’s true.

Also, are there enough experienced attorneys who are willing to take on this type of burden who aren’t already bogged down with the new lawyer training program? What if the supervisor is truly concerned about ones ability to practice law? And now that person is just automatically admitted after putting 360 hours of work in?

And why are those who have already sat for another bar exam excluded? I see no difference between someone who has previously sat for the bar and one who hasn’t. Unless the insinuation is that the bar exam tests your competence so if you didn’t pass the first time you shouldn’t be able to skirt around the requirement now. And if that’s the case, then the entirety of this emergency proposed procedure is flawed. If Utah thinks the bar exam is necessary to test how competent you will be as an attorney, they shouldn’t be doing away with the requirement – even in light of the current pandemic.

I get it’s a bad situation all around and the Utah bar and Utah Supreme Court is doing their best to figure out how to make it right with the recent grads. I truly feel bad for those who will be graduating that are affected by this pandemic. The reality is, the pandemic affects all of us, both graduated and not graduated. I think there are a few things to think about before this procedure is put in to place. Is there a better solution? Could the bar exam be administered remotely under the same timed conditions? Could the bar exam be rescheduled to another time in 2020? Say, in September? October? Yes, life will be on hold for recent grads to see what happens with this pandemic, but it’s unprecedented times. What about conditional acceptance to the bar with a requirement they have to pass within a 1-2 year period? I think there needs to be a way to still maintain the integrity of the practice of law without doing away with the bar exam requirement altogether.

The Bar should consider why it has, in the past, excluded the 13% or so who don’t pass. Does allowing those folks to practice for a certain number of hours completely overcome those concerns? My opinion is that this is an extreme response. The Bar should probably just expand the “practice under supervision” rules (either for 3Ls or out-of-state attorneys pending bar admission) to accommodate the current graduating class until they have a chance to sit for the Bar Exam. That would be a more tailored, but still compassionate, response to the circumstances.

Generally, I believe that this order is a good idea and a necessary step to prevent further outbreak of COVID-19 while also being mindful of the entering class of attorneys.

That being said, I think that the definition of “Qualified Recent Law School Graduate” under I(b)(1) is too narrow. I think that most read this rule and think of it as an exemption for entering attorneys. However, if a recent graduate did not attend BYU, the University of Utah, or another top tier law school, it also acts as a total bar on being able to enter the legal profession for an entire year.

Utah firms employ graduates from a wide variety of law schools, and there are a significant number of graduates from Creighton, Gonzaga, and UNLV in the state. Despite that, graduates from those schools under this rule would be prevented from entering Utah’s legal profession until 2021 under this rule because their bar passage rates are 72.9%, 72%, and 81% respectively. Especially as the economy has come to a standstill during this crisis, barring these recent grads from entering their chosen profession is ill-considered and could have terrible consequences on an individual level. This is especially true when one considers that, statistically speaking, these graduates would in all likelihood have passed the bar on their first attempt if they were actually permitted to sit for it.

Further, the current requirement arbitrarily assumes that students who attended less prestigious law schools are less worthy to enter the legal profession. That is a poor assumption. In fact, students may choose to attend such schools due to financial incentives, proximity to family, willingness to accommodate unique circumstances (such as military employment), or any other number of reasons. Further, the rule fails to account for how any of those students actually performed at those schools, and there is no reason to think that those at the top of the class at Creighton are less worthy to enter the Utah Bar than a bottom-tier graduate from the University of Utah or BYU. In fact, top graduates from those schools regularly obtain prestigious positions commensurate with their abilities (for example, at least one Creighton graduate has clerked for the United States Supreme Court).

Accordingly, the definition of “Qualified Recent Law School Graduate” should be expanded to include graduates of schools that have a first-time taker bar examination passage rate that is significantly lower than what is currently required (probably around 50%, indicating that the student would have been more likely to fail than pass). Another alternative would be to eliminate the bar passage rate requirement altogether and simply allow graduates from ABA-approved law schools to enter the profession.

Thank you for this very thoughtful order. As it is currently stated, however, this rule would preclude otherwise-qualified graduates of ABA-accredited law schools in states with lower bar passage rates—such as California, which has the most prohibitively high state bar cut score after Delaware—from taking advantage of this order and contributing positively to the legal field in Utah. I respectfully ask the Utah Supreme Court to consider changing the “86%” standard to “the July 2019 first-time taker pass rate in the state in which the applicant graduated.” This would preserve the Court’s noble intent to ensure a high standard of competence and protect the public, but it would not exclude talented graduates who would become meaningful, productive members of the Utah legal community.

OK, if you want to allow the graduates to practice without taking the bar, on a temporary basis, until they have the chance to take the bar exam within one to two years.

Respectfully, this proposed rule overlooks my clients, who successfully petitioned the Court for a rule change making DACA recipients eligible for bar admission in Utah.

Like this year’s graduates, my clients were signed up to take the Utah Bar Examination in July 2020. They live and work in Utah, and they have demonstrated their competence to practice not only by graduating from Utah law schools, but by taking and passing the bar exam in California. Because they are more experienced than members of this year’s graduating class, admitting them without requiring them to take the bar examination furthers the Court’s goal of increasing access to justice. It also would promote diversity, since both are women of color. Finally, if “hardship, risk and uncertainty” is driving the Court’s decision-making, it should consider the hardship, risk and uncertainty my clients faced concerning their right to be eligible for bar admission in their home state; a right denied to them for years. Now, once again, they face the hardship, risk and uncertainty of whether and when they can take the bar exam in the face of the federal government’s ongoing effort to terminate the DACA program and to blame immigrants for the pandemic.

Accordingly, if the Court is going to adopt a rule to ameliorate the impact of COVID-19 on access to justice or other compassionate grounds, I propose that the rule be extended to applicants who first became eligible for admission to the Utah Bar in 2020, regardless of whether they had previously taken a bar examination, unless, of course, they did not pass. Further, the Supervised Practice provisions of the proposed rule should not apply to attorneys admitted to practice in another state who first became eligible for admission in Utah in 2020.

Thank you for your consideration.

This appears to be yet another hysterical over reaction. Please stop. Don’t do it. Delay if necessary but they must still pass the Bar Examination.

I support this proposed change in the rules for several reasons. First, it would allow the recent graduates to be able to focus their attention and efforts into getting into the work force rather than worrying about when, where, and how they will take the bar. Most graduating students have already had their semester cancelled, graduation cancelled, job offers postponed, not to mention having to deal with uncertainty of what will happen in the next coming months to them or their families. Second, students who live in jurisdictions that have cancelled the bar or have delayed the bar are now having to wait months after graduating to then start studying for the bar. This in turn affects their ability to study effectively. A lot of law schools around the country offer bar prep classes as part of their curriculum in anticipation for their students to turn around and apply what they learned in a bar prep class but if the bar exam is delayed the efforts of these students will have been wasted because there would be a significant gap between graduation and taking the test. This is ineffective. Most graduating students are ready, willing, and able to work with a supervising attorney and would have the motivation and drive to be the best they could be. A mere 14% is not the measure by which to go by. I know a lot of people on this forum are saying that the bar exam is a way to weed out the incompetent and it’s a right of passage; but the Utah Bar Exam has a passage of 86%. Really? But it can and has been shown that a person who doesn’t pass the first time isn’t incompetent. This number doesn’t effectively represent those students who deal with testing anxiety or have family issues during their testing, it doesn’t take into account those students who go on to be great lawyers that are hard working. I believe this proposed rule change is a good idea also for the reason that a highly burdensome test does not effectively test a persons ability to then practice law. Lots of graduates that take the test go on to not being able to practice law because they don’t know how. Students learn best practice from actually being in a hands on environment not sitting at a desk just reading about how to do it. I have heard from tons of lawyers that law school doesn’t teach you how to be a lawyer, just to think like one. Most fears and anxieties of recent graduates are that they know the information they just don’t know how to apply it. THIS IS HOW YOU APPLY IT. by giving the opportunity to get their hands dirty.

When I was a Bar Commissioner I had occasion to study requirements of various states for admission to the Bar.
In Wisconsin if a student graduates with a Degree from the University of Wisconsin or Marquette University he/she can then be admitted to the Bar without an exam upon certification from the law school. In my opinion this model could be used by Utah with respect to graduates from the University of Utah and BYU. This would free many students from the expense of bar review courses. The Utah Bar already has a mentoring program which could be expanded to mitigate concerns that unqualified people may be admitted to practice. I recommend that the Supreme Court take action to study the Wisconsin model and how it may work in Utah.

I applaud the Court for finding a creative solution to these challenging issues. Supervised work with a licensed attorney is far, far better preparation for practice than the bar exam, which at root is largely a memorization exercise that doesn’t have much lasting training benefits. We should use this opportunity to consider whether we really want to retain the bar exam at all on a longer term basis, as opposed to shifting to a more practical, clinical training admission model.

I fully support this proposed rule change, with some caveats. I agree that obtaining a diploma from an accredited law school should be sufficient evidence that the graduate has at least minimal competency in the areas of law that would be tested on the exam. The 360 hour supervised period would allow for real practical training, a refining period for the graduate to learn how to become practice ready… much better than simply being seen as “competent” by answering a few multiple choice and essay questions properly.

Additionally, this option provides the best solution for graduates, who are (arguably) facing more stress regarding their financial future than most attorneys currently in practice had experienced when they graduated. Simply postponing the exam doesn’t make sense because we don’t know when this pandemic will ease up, and many students aren’t in a financial position to keep their lives on hold whilst the exam continues to get pushed out further and further. Providing for a supervised practice pending an exam at a future date also has its deficiencies — the farther out it’s pushed, the less fresh the material is on the graduate’s mind. Furthermore, many of those who fail the Bar Exam, do so because they are working full time while trying to study. Although it certainly is not impossible to work full time and study (and even pass), that shouldn’t be a situation that every graduate is forced into, simply because they cannot afford to prolong the exam. Finally, a few of the preceding comments have noted the risk that attorneys will perceive this graduating class as inferior because they have not passed the exam like every attorney before them. It is my hope that the majority of attorneys do not hold this view. Rather, I anticipate that most in the legal profession can appreciate the unique circumstances that these students are faced with, and will be willing to meet these graduates with compassion. We cannot maintain a stranglehold on our rigid policies and “rights of passage,” especially in an ever evolving society.

Caveats– Reciprocation with other UBE jurisdictions would be difficult, if even possible. My guess would be that, if those graduates intend to waive into other reciprocating jurisdictions, they would eventually have to take the exam to obtain a score that would allow for reciprocation. Also, the requirement regarding the institution have an 86% Bar exam pass rate should be removed. The school I attended (University of Oklahoma) achieved a 95% pass rate for the OK Bar Exam, but there is no data regarding their students’ pass rate for the Utah Bar Exam. How would this be measured, especially between jurisdictions that do not use the UBE (like OK)? Respectfully, these issues should be addressed before a formal rule is adopted.

I would like to thank the Supreme Court for the proposed ruling in this matter, and show full support for the proposed decision with the exception of the 86% first-time bar passage rate requirement for law school. There is discrepancy between difficulty of bar exams across the nation and bar passage rates between states. Because of this discrepancy, requiring all law schools to perform at Utah’s bar passage rate of 86% would exclude students who go to schools that perform well above average on taking the bar for the first time, and it would include students who go to schools who are below average at taking the bar for the first time. This makes the 86% measure arbitrary. 

Instead of using the Utah pass rate for all law schools across the nation, I recommend the Utah Supreme Court use the difference between the school’s passage rate of first-time test takers and the ABA weighted average of first-time bar test takers. This number would take into account the difficulty of passing the bar exam in each state, and provide a more accurate measure of a law school’s performance for first-time bar passage rates.

On the 2019 report for law schools, the ABA includes a column (column J) which reports the difference in the school performance of first-time test-takers (column H) and the ABA weighted average of first-time test takers (column I). The ABA weighted average varies from school to school depending on which states their students take the bar exam in, and what the passage rate for the various states bar exam is. 

If the Utah Supreme Court would like to issue a ruling to ensure that law schools perform above average, they should require the difference between the law schools first-time passage rate and the ABA weighted average of first-time test takers to be a positive number. As long as a school has a positive difference between the school average and the weighted average, then that school’s students who are take the bar for the first-time are passing the bar at an above average rate.

Utah’s first time bar passage rate of 86% is much higher than the national average of 80%. In fact, in 2018 Utah was in the top ten states who have the highest bar passage rates. For 2018, the list in order of highest to lowest includes: Oklahoma, Missouri, Iowa, New Mexico, Montana, Utah, Oregon, Kansas, Minnesota, and Nebraska.  In 2019, Utah surpassed all of those states expect for Kansas for highest pass rates. Placing the cut off for law schools at 86%, which is the Utah rate, means that schools whose students mostly take the exam in Utah would only have to perform average to be accepted. Meanwhile, schools whose students take exams in states with significantly lower first time bar passage rates like California (69.11%), Colorado (76.89%), and Arizona (74.01%) would have to significantly outperform the average bar passage rate to make the cut. Likewise, law schools with students who take the bar exam in states which have a higher bar passage rate than Utah, like Kansas (87%), could perform below average on first-time bar passage rates and still make the cut.

RECCOMENDATION

A more complete and accurate measure of a law school’s performance on first-time bar passage rates would be to use the difference in the school’s performance of first-time test-takers and the ABA weighted average of first-time test takers.  A positive number means the school’s first-time bar passage is above average and a negative number means the school’s first-time bar passage is below average.

Students may easily find this number (column J) on the report of their school and submit it as proof that their school performs above average at first-time bar passage rates.

2019 bar passage reports can be found at: http://www.abarequireddisclosures.org/BarPassageOutcomes.aspx

With respect, I’m opposed to this proposed rule.

Our rules should focus more on protecting clients, rather than law school grads.

Preparing for the bar exam helped me become a better lawyer, while many of the classes offered at law schools are highly academic but not actually useful for representing clients.

The requirements in most other countries to practice generally are more onerous than America’s current system, and watering it down is not the best solution. E.g., in Canada, in addition to law school and a bar exam, there is a required 12-month period of articling (clerking) under experienced lawyers.

Extending the 3L practice rule is a sounder option.

This is a brilliant solution to an unforeseen problem that has no set end. The legal community must be supportive, flexible, and adaptive to the problems it faces. Law students entering the profession will be forced into poverty if they are not granted some accommodation during this time. This is not an ordinary virus, it is relentless and deadly. No vaccine is going to be available until 2021 at the earliest. Why ask these students to risk their lives and their families’ lives while bar examiners scramble to find a way to test them? There is a clear need for attorneys and this is a sensible and wise solution. Kudos to those involved!

I disagree. Whatever happened to the idea of taking measured responses, rather than the recent rush to take extreme responses? There are a dozen less extreme measures. Alter the test format. Postpone the test by a month. Offer the test in a larger venue where students can be separated by an acceptable distance. Grant a short provisional license period. To simply jettison a critical requirement enforced for decades is rash, and not well thought out. The answer to everything in light of Covid-19 is not to do the simplest and most extreme response. We should take the more difficult, but more measured incremental response.

As has already been pointed out by several commenters, this proposal seems to be a step in the right direction to accommodate a clearly unique and uncommon situation, my concern is that as it is currently written this proposal is unnecessarily restrictive. I graduated from a very well known law school in 2017, due to family circumstances and uncertainty surrounding my long-term residency in the State of Utah I delayed applying to the Bar until this year. Irreversible decisions regarding my employment and other educational pursuits have been made contingent on my ability to take the bar exam this year. To prevent me from taking the bar would not be fair.

Furthermore, limiting the “Supervised Practice” proposal to applicants who graduated from a law school with a bar passage rate of higher than 86% seems very arbitrary and would prejudice applicants based on the performance of their classmates. I support the proposal to allow “Supervised Practice.” However, I would like to see the categories of those who qualify expanded.

If a potential applicant has graduated from an accredited law school in good standing and has the savvy to find a qualifying attorney who is willing to supervise them, which is no small task, they should be allowed to qualify for the “Supervised Practice” provision. There seems to be far too many restrictions to who could qualify for the proposed “Supervised Practice.” The requirement that applications for the Bar Exam be submitted before April 1 will preclude any potential applicant from taking advantage of these once in a lifetime circumstances.

The first-time minimum requirement of 86 percent seems to exclude a number of highly-ranked law schools dependent on the jurisdiction in which comparisons are made. For example, for the July 2019 Colorado UBE, with a cut score of 276, the 10 schools identified as “national” law schools (Columbia Harvard Stanford Yale Duke Michigan Chicago California Berkeley Virginia Texas) only achieved a first-time pass rate of 85 percent. Consequently, the standard seems to favor law schools in states with lower cut scores while excluding law schools in states with higher cut scores (such as California and Colorado).

I think this is a great idea. I’m facing lots of uncertainty and hardship in my life right now and not having to worry about studying for the bar would help me tremendously. This rule would allow me to work to pay my bills while continuing to gain knowledge and experience instead of spending my time studying for an uncertain and obsolete bar exam. I am confident that with my previous experience, training, and after working the required amount of hours, that I will be just as competent as an attorney who has taken the bar.

Furthermore, the hour requirement will create lots of students willing to put in pro bono hours to help the community which is a valuable resource. This will help the access to justice problem in the state as it will allow competent graduated law students to be accessible to help people in this time of crisis instead of being helpless by the wayside.

I fully support the idea that the bar exam be waived and get these new graduates to work! I graduated from the BYU law school in 1988 (cum laude and on law review). I then took the Arizona Bar and passed. I moved back to Utah 3 years later and took the Utah Bar exam and passed, while trying to work full time and take care of a new baby. Both exams took a huge toll on my life. I have practiced law for 32 years and can say that neither bar exam made me a better attorney. Rather than an expensive exam and forcing us to go through this horrific process, the state bar could set up a more robust effort to train attorneys in how to actually practice law in given areas. I would love to help with that effort. Even having recorded CLE classes that take an area an area from start to finish online and teach how to complete, for example, an adoption, with appropriate forms would be huge a boost to attorneys. (think guardianship, landlord tenant issues, simple divorce, adoption, estate planning, special needs planning, setting up business entities, etc, the areas of law where every person in our community will need some legal help). When we come out of law school we don’t know how to actually practice law. All the effort and money put into the bar exam could be transferred into training that actually helps attorneys. If we were able to graduate from an accredited law school, that should be enough. Let’s also strengthen law schools and include more concrete learning there. This time of pandemic is a great opportunity to look at what is being done and examine whether there are better ways and have the courage to stop doing something just because that is the way it has always been done. The Utah Supreme Court is urging big changes to help those who are under served and getting rid of the bar exam and training attorneys could be one great step in that direction. Include training in the areas where people tend to try to represent themselves and allow an attorney to become well versed and confident. Many attorneys would take clients at well reduced rates to make a modest living, given our economic climate. As the fields of law are harrowed and turned upside down, let’s review how this process is done, and consider doing away with the exam all together.

Perhaps it is time to reconsider whether we require a bar exam at all. But if Utah feels we should continue having a bar exam, then an “Apprenticship” solution would be supported by me. We can extend the third year practice rule until such time as the Bar Exam can be administered. With that being said, don’t you think it a little silly to end civilization as we know it because of fear? The Covid-19 pandemic will be over by June.

As a graduating third year, I want to thank the Utah Supreme Court for their careful consideration of the hardships my class year is going through. The current uncertainty and financial hardships have made what should be a joyful time of celebration very stressful. This proposed change helps us graduates gain control of our career again and make concrete plans for the future that are unaffected by COVID-19. By being able to join the legal field now, we can start building our careers, help our community, and learn more about our specific areas through supervised practice.

While I understand the concerns about not taking a bar exam, I feel that my law school experience and professors have taught me enough about the legal field to be a competent attorney. I have gained a wonderful education from a highly ranked institution and that still counts for something even without taking the bar exam. And while some individuals might not take the bar, there are still many students who plan on taking a bar examination in the future to get a transferable score. Whether or not a graduate takes the bar, there should be a faith that every student is taking this proposed opportunity seriously. As unprecedented as this proposal is, I know my class is eager to prove our competence, to thank the community that helped us get here, and to continue striving for more education.

Have people making this decision contemplated requiring only the multistate section of the bar exam? It would seem that a multiple-choice test could be taken in a controlled and safe manner. Universities around the country have been administering tests online.

This is the most irresponsible thing you could do. While there is an argument that bar exams are an antiquated way of assessing ability to practice law, it is a very necessary basic competency test. There are some candidates who are unable to pass the exam and they should not be allowed to become lawyers.

It makes no sense to me why you can’t require new graduates to pass the bar within a certain time period (2 or 3 years) and condition their license on that until then.

It seems to me the people who are the biggest proponents of this are the ones the most to gain from “100% bar passage rates”—law schools.

Every other profession requires licensing exams and this profession should absolutely be no exception.

I like the idea of an apprenticeship. I don’t find that by passing the Bar Exam any new lawyer is more adept at practicing law. If you are are like me, then it was my first few years of being mentored in my firm that truly helped me understand how to practice law. I currently have a law clerk, that understands a lot of nuances of practicing, but missed the cut-off by 3-points. Now please tell me that a 267 vs 270 is truly less qualified individual. My law clerk would be sitting for the Bar in July. I do not believe it is fair to grant access to graduates, just because they happen to graduate now. I believe that the Supreme Court should grant the apprenticeship method to any wanting to take it for the July Bar, think of it as a test group. I believe an apprenticeship program would produce much finer quality of attorneys seeking to get licensed. But it needs to be opened to everyone.

I disagree with the premise set forth in the proposed order which relies upon the stated conclusion that the Court cannot safely administer the bar exam given the current public health crisis. Certainly the health of the bar applicants is of highest priority. However, as a society we have been able to make many other situations function by alternate means under current conditions. I believe that satisfactory alternate testing accommodations can and should be made in order to ameliorate the health risks such as remote testing, larger testing facilities or multiple testing facilities.

It feels to me that the conclusion asserting that the bar exam cannot be administered safely has been made without fully exploring all possibilities. All of us are figuring out how to make things work given these new public health conditions. All of us have had to postpone important events or have missed out on other opportunities because of COVID 19.

It would not be unreasonable to reschedule the current exam. One alternative could be to eliminate the MBE portion of the exam and to administer just the essay portion on a later date via remote testing. However, for the bar to just discard the bar exam altogether seems to be an abrupt decision without considering all possibilities.

I suggest that the Court appoint a committee to explore and make recommendations as to administering the bar exam in a safe and proper alternate way. Wtih the bar exam being more than 3 months down the road, public health circumstances and governmental orders may change sufficient to safely conduct the exam.

Completely eliminating the bar exam as a pre-requisite to bar admission, even for just one cycle, may be motivated by proper intentions, but such a decision has unintended consequences. This decision sends the wrong message to the public and would also be a precedent to future elimination of the bar exam without justification. Moreover, eliminating the bar exam requirement is inequitable to currently practicing attorneys who did comply with the bar exam condition.

The proposed emergency order is not a satisfactory alternative to address the current circumstances.

1) The end of July is far enough in the future to be safe. Place the desks 6 feet apart and hold the exam.
Alternatively:
2) Hold a real-time online exam and count on the test-takers’ honesty.

I am a current 3L and I think this is a great idea. It alleviates the uncertainty and anxiety with respect to studying for a bar exam that may or may not occur this year. I also personally think practical experience is one of the best ways to get experience, as compared to studying for an exam. I still plan on taking the bar at a later date when it is offered for the transferable score, but I also still think this proposal works as a way to prepare current 3Ls, and others who qualify, to practice law. Given the uncertainty, I’d much rather help others and gain valuable real world experience by working towards something, than study flashcards for an undetermined length of time due to an undetermined test date. This is a novel solution to a novel problem, and could also lead to important conversations about the bar as a measure in the future. I really appreciate what everyone involved here has done.

I support this order. The Bar exam does not reflect competency anyway and these comments about it being a rite of passage are sadistic and tired.

I agree on this emergency proposal (provided applicants fulfill all other requirements and qualified otherwise)

I support the Utah Supreme Court and its decision to offer the diploma privilege plus supervised practice option. It seems clear to me that the justices were thoughtful and thorough in considering the many alternatives to the regular bar examination process. I believe that the proposed order is a fair and equitable system for as many people as possible, without compromising the quality of those who would be admitted to the Utah bar under the diploma privilege option.
I am a third-year law student just finishing three weeks of online classes and preparing for three more weeks of final exams. Having attempted to prepare for a handful of exams and prepare for class discussions, it seems impossible to me that I could adequately prepare for the bar exam under the current conditions. I am married and my wife and I have a special-needs, immunocompromised child. My family lives in a small apartment where there is no real place to seclude myself to study for the bar. I understand having an immunocompromised child creates a somewhat unique situation by requiring me to work from home for the foreseeable future. That being said, I know many of my classmates are in similar situations where the pandemic will significantly limit their ability to prepare for the exam. Even where student’s abilities to study for the exam are not diminished, these students will likely be trying to deal with other problems created by Covid-19 (e.g., loss of job offers, struggling to pay rent and other bills, catching the virus, loss of loved ones, etc.).We have no real idea of what the future will hold.
Lastly, as I read the comments opposing the order, many seem to believe the proposal will lead to an influx of unprepared, incompetent attorneys. While I see some validity to this argument, I disagree that the bar exam would better prepare a graduating student for legal practice than would 360 hours of supervised practice. The most valuable and important learning experiences during my time at law school have been my internships (as a summer associate, legal intern at the University of Utah hospital, and judicial extern), volunteering for the pro bono initiative, and observing court proceedings for various courses. In my opinion, the supervised practice component will better prepare students to practice law than would preparing for the bar exam.
I applaud the Court for its forward-thinking, compassionate approach to the challenges created by the pandemic. I hope that we can find empathy for those who are most affected by the virus.

I support the Proposed Order as written. I also support any minor changes the Court may find necessary during this process.

I am a current 3L and Qualified Recent Law School Graduate under the Order. The rising unrest and uncertainty for my future legal career during the COVID-19 pandemic has been concerning and I am grateful to the Committee that raised and debated all of these issues. I am grateful to both the parties that supported what would have been my viewpoints and also to the parties that raised points and issues to which I would not have agreed. I respect and rejoice in the varying opinions about this issue because ultimately, only once all concerns are voiced and accounted for, can a true and lasting decision be made. I see this Order as the result of the good that a legal community can contribute to ease the foreseeable unrest in both the near and distant future.

Postponing the bar exam would functionally delay years of preparation and anticipation to become a member of the Utah Bar. Requiring the bar exam after limited admission would hinder clients and employers in any ongoing matters as once-practicing attorneys would leave their posts to study for a retroactive examination. I appreciate the Court’s position to use supervised practice as a new measure to establish competency and find the time requirement associated with this new requirement to be reasonable as it is comparable with the amount of study an applicant should devote to studying for the bar exam itself.

Delayed admission to the Bar would eliminate my financial ability to offer pro-bono or even low-bono legal services at any time in the near future. I appreciate the Court’s time in considering all of the concerns surrounding this situation and finding a way to help us all move forward toward a better future. The July 2020 Utah Bar applicant class will not let you down!

I respectfully oppose the proposed change. Prospective members should be granted a *temporary* license to practice under a licensed attorney, with the requirement that they take and pass the bar like every other admitted member within a particular time period after the distancing precautions are lifted.

Waiving bar passage requirements for any reason does a disservice to clients and dilutes the profession by admitting unqualified applicants who otherwise would not be admitted. This requirement waiver would also be a disservice to those qualified to be admitted, as these members will always be seen by clients, peer attorneys, and judges as having a cloud over their credentials.

I think now is the time for Utah Bar to reconsider its licensing criteria altogether. Standardized testing is not a great indicia of how an attorney will actually perform. Reading through these comments, people raise anecdotes of attorneys who have passed the bar but perform poorly. I would raise the personal anecdote that one of my good friends graduated at the bottom of his class and now he is extremely successful at what he does (US Assistant Attorney General). Standardized tests just aren’t determinative of attorney ability.

I would argue that all future licensing in Utah be converted to a supervised practice hours system. Supervised practice areas allows a young attorney to learn how to research questions and work as an attorney rather than merely forcing them to memorize legal doctrines which a) may not apply to that attorney’s practice, b) may not be the standard in Utah (as Utah uses the UBE), and c) may change during that attorney’s career.

The class of 2020 should be granted diploma privilege, but the UT Supreme Court should also consider long-term changes to licensing. Utah is a state that likes to be known for its pioneer heritage. Why not pioneer a system in which we do away with the archaic, unnecessary, and ineffective practice of the bar exam?

I fully support the proposed order. The esteemed justices of the Supreme Court of Utah– in conjunction with those most familiar with the training and certification of budding attorneys–have thoughtfully tailored a solution which matches the urgency of the moment. They have crafted a careful and empathic order which allows for greater community access to legal services and places recent graduates in a position to immediately contribute to an unprecedented economic recovery effort while securing their financial and professional futures.

I recognize and value the opinions of senior colleagues who view the proposed order with skepticism. I also recognize that as a graduating 3L, established attorneys might view my comments–and those of my classmates– with suspicion. They might assume that I, and those similarly situated, simply mean to escape the rigors of bar study and the stress of the exam. Candidly, I am saddened to see so many characterize my class as less qualified, or at worst, lazy, for supporting this order in the face of a crisis. I humbly and sincerely submit my classmates and I have been personally affected in ways which warrant this response. My wife’s business, on which we almost wholly rely for income, is shuttered and facing bankruptcy as we struggle to obtain emergency funding which may come too late. Unfortunately, my circumstances are not unique. Forcing graduates to delay entry into the bar makes for less desirable candidates, saddles us with student debt for a longer duration and hinders our ability to support our families in the face of unprecedented and unforeseeable economic challenges.

Ours is a profession resistant to change. The bar exam has long been seen as a rite of passage for would-be attorneys; a final challenge which supposedly certifies the quality of knowledge obtained during years of diligent study. However, the ultimate measure of any certification effort should be the accurate assessment of competency. While I do not believe the bar exam meaningfully aids this objective, I understand the importance of monitoring entry to a profession which requires a heightened standard of care with regard to clients’ funds and important life events. What better way to ensure competency than to require graduates to be directly overseen for hundreds of hours by professionals with years of legal experience. Arguably, the risk of malpractice would be higher for those who have not benefited from direct mentorship than for those who do not pass a test of questionable efficacy.

Of those excluded as first-time takers, most ultimately pass a later exam and are allowed entry to practice. Roughly 94% of Utah graduates from the University of Utah are admitted to the bar within 2 years of graduation. The relative few that don’t pass aren’t suddenly and objectively unfit to practice law; they are unfit to pass a timed, memorization-based exam in a high-pressure environment which does not closely resemble any aspect of modern law practice. The scope of the harm of admitting a small number of attorneys who may not have passed the bar is incalculably small when one considers the only measure of the bar’s effectiveness has been the fact that some don’t pass it.

I humbly ask the Supreme Court of Utah to move forward with the proposed order and allow the graduates of 2020 to prepare to practice with the guidance of established attorneys.

I appreciate the lengthy and well-informed and well-reasoned discussion by our legal community here. I agree with the support given and the expression that this provision should be extended laterally to other bar applicants such as those practicing in other states; no only to the 2020 law school graduates. I appreciate the concerns raised, but I do not think they are well-grounded in the data. The primary concern is surrounding competent legal services and the protection of the public and I whole-heartedly disagree with concerns based on that reasoning.

The following states allow for admission to legal practice without passing a bar examination while requiring some sort of supervised practice and often accompanied by at least some law school attendance: California, Vermont, Virginia, Washington, New York, Wyoming

There has been no surge of complaints in those states of incompetent lawyers, nor problems with reciprocity for legal practice. I support this emergency proposal and honestly I would like the Bar community and the honorable Utah Supreme Court to consider a permanent revision of the rules surrounding admission to practice law in Utah following the recommendations by our community found in this comment thread.

Developments and current understanding of the effectiveness of standardized exams, the economics of expensive market barriers to legal services (eg. very costly legal training and bar examinations), and the feasibility of alternative licensing methods found in many other sister states indicate that more effective and economical solutions are available to our great state for the provision of competent and affordable legal services.

There is ample research and data to be reviewed regarding the economics of professional licensing and legal licensing specifically along with the effectiveness of standardized examinations including how much information is actually retained after passing such an exam.

Thank you for all that you have done and for your concern and consideration over the current public health problems we face. The COVID-19 crisis has provided us opportunities to examine aspects of our lives and society that otherwise go unnoticed or un-reviewed.

I again would like to encourage our honorable Court and community to consider making permanent changes to permit this kind of admission to legal practice in Utah. I am entirely confident that we will find no greater lapse of competence in the cohort of lawyers admitted to the bar through this process than any other cohort of lawyers who practice law in Utah and passed the Bar exam. Of course permanent changes would be accomplished with some refinement after additional discussion around the specifics and when we are not in the midst of an emergency. Stay safe!

The idea to give diploma privilege to those who are registered to take the July 2020 Utah State Bar Examination is an innovative and good idea, but the criteria set forth for those who are “Qualified Recent Law School Graduates” is completely asinine, discriminatory, and undoubtedly biased toward the University of Utah and BYU graduates. The Supreme Court is saying that a top 10% student at The University of Washington is not as competent to practice law as a bottom 10% student at the University of Utah. Think about how stupid that is….Moreover, there are many Utah residents that went to an out of state ABA accredited law school so that they could accept an academic scholarship when a scholarship to an in-state law school was not offered. Those who are poor and have to take different routes such as a scholarship at a lower-tier law school should not be punished by this biased, discriminatory, knee-jerk reaction by the Utah Supreme Court.

Either make it so all recent graduates and licensed attorneys who are transferring to Utah have to take the bar as “soon as it is safe” (it would be safe to take tomorrow if the Supreme Court and Utah Bar Association used their brains and thought of a way to put it on “safely”). Or make it so all licensed attorneys who are transferring and ALL recent graduates from ANY ABA accredited school are qualified for the diploma privilege as long as the other requirements are met.

If you want an example how the Supreme Court and Utah Bar Association could use their brains and put on a safe test i’ll give you one. Find a building with a lot of rooms (easy to find). In each room have 9 students and one proctor administering the exam. Take temperatures of the test takers, if for some crazy reason one of the test takers has a high fever they can be dismissed or take the test alone in a room with another proctor who is wearing a mask or whatever they’d like to “keep safe.” Have the test takers sit at least six feet apart. In order to have enough proctors sit in these classrooms offer to current Utah licensed attorneys that they will be given credit for CLE hours for the amount of hours that the proctor during this unprecedented time. BOOM THAT WAS EASY! USE YOUR BRAINS AND YOU WILL FIGURE OUT SOLUTIONS TO YOUR PROBLEMS.

I have been reading through all the comments and noticed a couple of recurring arguments or themes from those who are opposed.

1.There are many who feel the bar exam provides a minimum competency standard and weeds people out. To those, I would like to argue that there are other ways of measuring competency that does not have to take the form of a test. As noted by Linda Smith, experience is a great teacher, and arguably better at preparing individuals for practice.

2. They believe that the test is required because it is what they had to do. This does not take into account the unique and untenable circumstances faced by 2020 graduates. We need to study a minimum of 400-500 hours for the test. It takes planning and extreme dedication. Current graduates right now are not able to plan which is very disruptive. Most of us do not work during the summer to study. If we do not know when the test is scheduled, we do not know when to begin our study. We are also delaying our ability to pay back student loans. With school and daycare out, there are many who are taking additional home-life responsibilities which will hinder their ability to study. For anyone saying that they had to do and so these kids need to do it as well, ask yourself if you had to do it during a pandemic. It is not a one-for-one analysis.

3. There are many who believe that the test should be administered later. I believe the Supreme Court has considered this option. This presents many logistical difficulties. Not limited to the following: the convention center is being used as medical overflow and there is no certain date for when it would be available, we do not know when gathering restrictions will be lifted, proctoring the exam would violate state orders, limiting students to a room full of 6 students presents issues location, proctors, and money, checking IDs presents health concerns, etc. There are more considerations. I am not saying it is impossible. Just that at this time it would be extremely difficult to plan and not giving the students a date presents unusual and extreme hardship.

4. There are some who feel this is all ridiculous and an overreaction and these “kids” should learn some resilience. In the words of one, “If you expect a pass in life every time that you experience a financial hardship or financial uncertainty you are going to be in for a very rude awakening. The Utah Supreme Court won’t always be there to come and suckle you when you’re having a rough time.”
These comments really sadden me. I know the extreme struggles and difficulties that law students are facing. Many students, like practicing attorneys, deal with significant hardship in their lives that they overcome everyday (illness, death, depression, anxiety, unemployment, etc.). My fellow graduates are extremely resilient and are rising above their challenges. None of us have given up, none of us are unworthy of respect. Please treat us with respect. Please remember that everyone has hidden struggles under normal circumstances, but especially at this time.

I support this proposal but I strongly believe that the rule as proposed should be amended because it limits the accessibility to only those graduating from Utah schools. How is that fair to students who live in other states that want to come back to Utah to practice? Just because your law school didn’t have an 86% bar passage rate from the test takers the year before does not define how you would potentially do on the test. It is a very limiting rule and should be amended. The 86% requirement should be amended to have anyone who graduated from an ABA approved law school should be waived into being able to do the 360 hour requirement. As someone who is graduating this year I feel like this rule change would open more possibilities and allow me to be able to get into practice quicker. This would allow me to be able to make money in my profession and allow me to take care of my wife and daughter. pushing back the bar or having me wait until next year would also push back my ability to care for my family and it would actually decrease my chances, as well as everyone else, in passing the bar the first time. This is true for several reasons. First, I am coming straight out of law school, everything is fresh in my head and I think increased time between me graduating to taking the bar would not allow me to keep the material I learned fresh in my brain. Second, postponing the bar does not allow me to get into practice and would just increase the amount of time my family is going to suffer financially.
The bar exam is not a good test for competency because anyone can pass this test given enough time and preparation. It does not fully test a lawyers ability to be good at what they do out in the real world. The exam does not adequately prepare an aspiring lawyer to know how to be a lawyer. Essentially, all this test does is train someone to be a test taker, not a practitioner. With the proposed rule change and allowing recent graduates to go into a mentoring program, it allows the students to become the practitioner. It allows them to learn by doing and I know that a lot of students would learn more and more efficiently this way.

Just a couple of points. First, in a recent study published in Georgetown’s Journal of Legal Ethics, the authors found a relationship between bar exam socres and discipline rates. They specifically wrote, “If the cut score on the bar exam is lowered, we project that the entering cohort of attorneys would be subject to higher discipline rates of the course of their careers.” (The authors did note that their data was pulled from publicly available sources and that this limits their analysis.) The primary concern should be how this change will affect the public, and since no school has a 100% pass rate, it is guaranteed that this rule will allow people admission who would have otherwise failed the bar. The Georgetown study suggests that such individuals may have a higher chance of discipline. For every disciplinary action taken by the court or the Bar Association, there is at least one client (usually more) that are harmed. An order that can increase the harm to the public is not the best response.

Second, if the Court wants to consider a move to an apprenticeship model, two months is not sufficient for a proper apprenticeship. Consider litigation for example. If someone starts their hours at the beginning of a case, their supervised practice will only go through the pleading stage, initial disclosures, and perhaps one round of written discovery. This leaves out a number of key skills and knowledge (such as how to take depositions, summary judgment, and trial). A true apprenticeship model that genuinely prepares graduates for practice would last at least a year or two.

What the Supreme Court is considering is definitely worthy of discussion, and I appreciate the Justices’ desires to innovate where appropriate. However, a change of this magnitude deserves a more considered debate, and that can only happen with time. A permanent change for the class of 2020 is not a proportional response to a temporary situation. The proposed order should, at a minimum, be amended to require passing the bar exam at a future date.

I think it makes sense to extend this rule change so that, if you are House Counsel or have an application for House Counsel pending, then the Utah Bar grants those applicants full membership in the Utah Bar without having to take the exam. The same logic that is being applied to law students to give them full membership in the Utah Bar ought to apply equally to attorneys attempting to get licensed as House Counsel.

I am grateful that the Utah Supreme Court has pursued this order and shown genuine concern for those most affected by COVID-19. I am a third-year law student at BYU and I have first hand experience of the challenges law students are facing throughout the country. Luckily, we were able to continue participating in classes via the internet and will be able to graduate in a few weeks, without a graduation ceremony. No part of this process has been conventional for us, or any other law student around the country, but I am grateful to the faculty and administration at BYU Law School for making this process possible.

My wife and I feel extremely blessed that our little family no longer has to deal with the uncertainty that came with COVID-19 and my ability to practice law in Utah. I have worked my entire life to achieve the goal of obtaining a license to practice law. For years, I gave my all to obtain a valuable education and to be admitted to the law school of my choice. Thankfully, I was accepted to BYU. It has been exactly what I expected it to be…a rigorous, intellectually demanding, and rewarding experience.

I am aware of the negative opinions that are being shared toward this proposed order. I will just say this, I am grateful to attend an amazing law school and to live in a state where the Supreme Court is willing to analyze issues with compassion and logic. Utah law schools have a fantastic history of legal education and consistently producing the highest bar passage rates in the country. Last year alone, BYU exhibited a passage rate of 95% for first time bar exam takers.

With all the uncertainty that COVID-19 has caused, I fully support the idea that, instead of requiring my classmates and I to wait six months, nine months, or even a year to take the bar exam, we should be offered a pathway to licensure under a traditional apprenticeship model. If our class follows the trend of recent bar passage rates at BYU, as expected, presumably only one student in our entire graduating class would not succeed in passing the bar exam on the first try.

So rather than requiring 100% of students to deal with uncertainty and financial loss for a year, the Court has graciously provided another option. I am so grateful, I feel blessed, I am happy for my classmates and others who are also given this opportunity to move forward in life. I will be taking other bar exams as will most of my classmates in coming years, and finally we will be able to begin to support our families financially and offer some sort of stability in our children’s lives.

I am a 3L at the University of Utah S.J. Quinney College of Law. I know that the proposed order might trigger some feelings of unfairness from attorneys that have had to go through the challenging task of passing the bar. However, it is imperative to remember why this order is being put in place. It is the legal community responding to a global crisis. Our ability to adapt, hear, and ultimately respond to the needs of our community (global or local) is what our career is all about; and that is exactly what this proposed order is showcasing- the legal communities ability to respond to times of crisis and to respond with justice and deliberate consideration. For the comments that are insinuating that us graduates would be getting it easy, I ask you to think about how many of us would be unemployed or without income if the bar were to be simply postponed. Many of us have bills that will not pay themselves and families that depend on our paycheck. If the bar were to be postponed until the fall (which who even knows how certain that date will be), we would have a summer of unemployment for nearly the entire graduate population who isn’t already working. Furthermore, money is tight for everyone. Jobs may not be able to keep law students who are already hired as clerks on for the summer. Also, none of us are getting off easy. The world overall is suffering. Most of us have been negatively affected by COVID in some way, either knowing someone who is sick or being sick ourselves or feeling financially responsible for a loved one who has been laid off. The bar was created to exist in circumstances that look nothing like the present-day ones. To sit in a room with that many people would be a health hazard. To push the bar back, would burden graduates and potentially burden to the point where people would not be able to take the bar. For anyone who is either in law school or has been through it, you know how hard and tirelessly we all have worked to be able to even get to graduation. But the fact of the matter is, if the Court was to do anything other than cancel the bar for May 2020 graduates, we would likely lose out on the potential of fantastic up and coming graduates joining the legal community. As mentioned above, if the bar were to be postponed, it is likely that several students would not have the financial means to go unemployed throughout the summer and would not be able to sit for the bar. This is no way “us getting let off the hook”. But instead, as said before, this is a timely, appropriate and sensible response to a global pandemic.

I have a favorable opinion of the court’s decision here. It is a welcomed pragmatic decision in these unprecedented times. We have no idea when circumstances would permit these graduates to study for (let alone take) the bar exam and I applaud this decision. Thank you.

Wow, this is the best news ever! Ever since my first set of finals 1L year I have been worried sick about not being able to pass the bar exam. After almost flunking out of law school I was able show real progress and get my GPA up to a 2.23 and I am set to graduate this summer. I have worked really hard, and I didn’t want all my student loans to be for nothing if I was unable to pass the Bar. Now I don’t have to worry about it! What a blessing! I’m going to be able to go straight into the real world and represent real clients so that I can pay off those student loans as fast as I can. The Utah Supreme Court is making an awesome decision by proposing and hopefully passing this Order. I couldn’t imagine having to study for two straight months for like four hours a day to pass an outdated test that doesn’t show your ability to be a real attorney. The only way that we can learn is to get straight into the field and start learning from our mistakes that way. I’m pumped that when I graduate I’m going to be considered a real lawyer! This literally is an answer to my prayers.

Many commentators suggest extending the scheme to students from any ABA-accredited school. I agree that the 86% threshold should be lowered, but I am not convinced that ABA accreditation alone is sufficient. Some schools have a record of failing to teach students the law. Students at many law schools are more likely than not to fail a Bar exam, with first-time bar passage rates below 50%, and many others below 60%. Some schools have a history of being investigated and disciplined by the ABA and federal consumer protection agencies. However, I also understand that students go to schools with lower bar passage rates because the school is ranked higher or offers better financial aid. The Court could establish multiple criteria under which a student can be eligible to be licensed in Utah, perhaps accounting for bar passage rates of students taking the Utah bar, as well as factors like academic performance and attendance of a law school without a track record of legal liability and ABA disciplinary issues.

Thank you to the Utah Supreme Court, Utah Bar, and others who have worked on this proposed rule to try and find a solution to one of the dilemmas that COVID-19 has created in the legal field. As a student who will be eligible for the diploma privilege option, I am extremely grateful for the option, and am very hopeful that the rule will pass.

COVID-19 has brought many challenges (including legal issues) for lots of people. Simultaneously, it’s cut many peoples’ income. More people will be able to access legal services through this rule than would be able to if the bar were simply postponed.

I can only speak to my personal situation. Starting in two weeks, this rule will let me work/volunteer full time (remotely) in the nonprofit field under the (virtual) supervision of a licensed attorney to increase access to justice for many individuals who cannot afford legal services. If this rule is passed, I will be able to dedicate my time to assist individuals in Utah with legal matters (including COVID-19-related legal matters such as evictions, unemployment issues, navigating the legalities of the healthcare system, etc.) instead of sitting in my apartment studying bar material that, in my personal situation, will likely not be applicable to my future legal practice. If the rule is not passed, I would have to do both at once, and the Utah clients who need legal services would be the ones shortchanged. I’d also be a stress case.

I know the rule isn’t perfect. There are people who I wish were included who aren’t, and supervisors who I think should be included who aren’t, but I trust that those working on this have studied the issue more than I have. I hope that the rule would be amended to err on the side of over-inclusion, but at the very least, I hope it it will be put into effect with the hope that other jurisdictions will follow and more people will be included across the country.

I think this rule allows us to re-evaluate where we are and what we are accomplishing in Utah’s legal field. I hope this can be an opportunity for grads and attorneys to get more involved in providing quality pro-bono legal services to the people of Utah. I know that not everyone eligible for the diploma privilege will be able to spend the summer not working, but for those who planned to spend the summer studying for the bar without a paycheck anyway, I think this is a great opportunity to provide needed legal services (in partnership with licensed attorneys) to Utahans who cannot afford legal services while simultaneously gaining practical, helpful, legal training that will benefit future job searches and future practice.

Historic and unprecedented! I am hugely in favor of this Order by the Utah Supreme Court.

While I understand the sentiment that others might not deem this solution fair, I don’t feel like it’s a productive attitude to have. I could say it’s not fair that my husband is graduating law school in the middle of a global pandemic, something that no other class of graduates has had to navigate.

I sincerely appreciate the Utah Supreme Court’s response to the current situation, and their efforts to come up with an innovate and equitable solution. By allowing those who have already applied to the Bar to gain admission after 360 supervised hours, they are effectively weeding out those who are not serious about gaining entry to the Utah Bar. It allows recent graduates to begin their service and gain valuable experience, and it prevents their employment from being further affected by the pandemic we are in the midst of. We personally have had job opportunities disappear as many firms are waiting for things to normalize before they bring on new attorneys. I’m sure we can all agree that life as we know it has been disrupted. It seems only reasonable to me that recent graduates be given this chance to be admitted to the Bar and begin their careers, instead of waiting while the Bar is indefinitely postponed, further complicating their post-graduate endeavors.

I think this is the right move. This doesn’t impact me directly but I do have multiple friends that would benefit from this legislation. The unique challenges that could arise studying for a test while quarantined with children home from school, no day care, or even just the stresses from the global pandemic, is no environment for studying for the bar. People who are opposing this all see the bar as a right of passage. This is time for compassion and doing the right thing and I believe this is the right call.

COVID-19 presents extraordinary challenges, and the Justices are correctly meeting it with extraordinary courage. We do not know when the COVID social-distancing will end. The bar could cancel the test dates right up to the September date. This possible cancellation leaves many students in financial limbo until February or beyond. The Justices have resolved this issue in a way that benefits the public and new graduates. As a 3L, my firm has agreed to expand its pro bono and low-bono case load to let me train on supervised cases so more people will get access to help immediately. Further, my supervised practice training is superior to the bar examination. The difference between studying for a memorized test versus excellent supervision practice is apparent. Excellent training is much more critical then forced memorization of law which, if it does not pertain to your area of practice, will be forgotten within a matter of weeks. The ability to memorize tricks on a test does not tell others if you will be an excellent attorney. The bar, a measure of whether someone is fit to be an attorney, should not be the end-all given the extreme circumstances of COVID.

Concern: This extends back to the May 2019 class. I am not sure if this is necessary. It appears to reach further back then is essential.

I disagree with the portion of the order which prevents students who did not previously apply for the bar from the benefits of this order. Career or schooling opportunities which may have initially prevented students from taking the Utah bar may have changed due to the impacts of the virus. I know I for one have experience this change. I, and other students in my circumstances, have done the same amount of work as our peers and only neglected to apply for the bar. I would appreciate it if the application time for the bar were reopened.

I am a 3L graduating in May and will thus be affected most by this proposal. Personally, I am actually a little disappointed I will not be able to take the July bar exam. I was looking forward to putting all the knowledge gained in law school to the test and proving myself.

However, given my life circumstances and career plans, it would be difficult for me practically and financially to wait all the way until the February exam before being able to start my real career with a full salary. With no guarantee that a September bar exam would be allowed under the Governors directive, I applaud the Court’s proposal because it shows compassion to those who are likely to pass the bar, regardless of timing, while simultaneously helping the public and ensuring no real danger to them.

I plan on taking a JD advantage job, so being admitted isn’t entirely necessary, but I want to be able to do occasional pro-bono work and give advice when someone needs it. I will likely complete my hours of supervised practice by doing pro-bono work and I believe that it will give me better and more specific legal education than memorizing rules for the bar exam ever could. For my situation and the average 20+% of graduates from the University of Utah who take JD advantage jobs straight out of law school the hours of supervised practice seem like a hurdle, but it is a hurdle that will benefit us and the disadvantaged and under-served communities in the state of Utah.

I believe the proposal is the most just decision the court can make, though taking a few hours off the 360 required would be helpful for those in my position.

Sincerely,
John Lahtinen
JD Candidate 2020
University of Utah

I admire and acknowledge the background work done by many professors and administrators of our law schools within Utah. I also appreciate the difficult times under which students are graduating. Finally, the Court must be commended on its proposed rule, which appears to be narrowly tailored to the unique circumstances of the current SARS-CoV-2 pandemic.

That being said, I disagree with the proposed rule for the following reasons. First, I address the statements that the bar exam is not a measure of competency to practice law. This is not a new critique. In 1980, a study was conducted in California, with two reports issued. The results and reports were presented to the California legislature in 1984, after poor performance on the July 1983 bar exam were at a historic low. The study asked bar exam participants to act as legal counsel in simulated cases, with specific oral and written tasks. The study participants were then evaluated and scored. The study participants then took the California bar exam and the two scores were correlated. The relationship between the two were fairly strong. The study concluded that the bar exam appeared to measure “similar but not identical abilities.” After these results were obtained, a panel of 25 lawyers spent more than two days conducting an in-depth evaluation of 18 participants. The panelists were asked to rate the performance of each participant. The panelists’ judgment also strongly correlated with those that passed the bar and were scored well enough to practice. Thus, it appears the bar exam adequately tests whether bar participants are competent to practice law.

Second, I address a concern regarding bar discipline and disciplinary rates that may be present among those admitted with diploma privileges. In 2019, The Georgetown Journal of Legal Ethics published an article entitled The High Cost of Lowering the Bar (Vol. 32:307 (2019)). The article conducted an analysis of bar exam scores and data on disciplinary actions and disbarments. The article conceded that the analysis had only modest predictive value, the article concluded that lower scores on the bar exam were significantly related to the likelihood of bar disciplinary actions and disbarment. Of course, we cannot know the exam scores of any individual that does not pass the bar, students have essentially been given an incentive – the need to not study for a bar exam. The failure to even prepare for a bar exam can logically lead to a presumption that students would be or would have been unprepared (or significantly underprepared) to take and pass the bar exam. Further, if an underprepared student is unprepared, the scores would be lower. And lower scores correlate to higher bar disciplinary rates. This should be a significant concern for the Bar and the Supreme Court, which has plenary authority over Bar discipline.

This brings me to my third concern, the supervised hours requirement. The proposed rule requires only 360 hours of supervised legal services. This equates to between two and three months of supervision on a full-time basis. The concern is not necessarily for those applicants or admitted members that work for a firm. In those situations, partners at a firm will typically (though not always) provide much more than 360 hours of supervision and review younger attorney work product before any pleading or brief or memorandum sees the light of day. Again, there are exceptions. My concern, however, is aimed at the new attorney that opens his or her own law firm right out of school. Typically, a bar exam would provide the necessary signal that such an attorney is competent to practice. Now, however, the Court proposes a mere 360 hours of supervised work. Granted, prior to a bar exam, the way to be admitted to the bar was through an apprenticeship. Thus, it seems wise to look to other professions that have apprenticeships for some guidance.

The Utah Division of Professional Licensing oversees numerous professions that require licensure. I provide just some of the apprenticeship or supervision required for various professions. In order to become a certified public accoutant, one must complete 2,000 work hours of work experience, which is in addition to a licensing exam. An apprentice electrician requires four years (8,000 hours) before qualifying to be a journeyman. The same requirement exists for plumbing. In Utah, to be a cosmetologist, one must work as an apprentice for at least 1,600 hours; a barber, 1,000 hours; master esthetician, 1,500 hours; and, massage therapist, 600 hours. To be a dietician, you must have 1,200 hours of supervised work. To become a general contractor (B100, E100, or R100), you must complete 4,000 hours of paid work experience. A social work requires 4,000 hours of clinical professional work, with 1,000 of those hours required to be mental health therapy (of which 100 must be “directly” supervised).

Even turning to other professional avenues, a medical school graduate isn’t prepared to practice medicine simply by completing his or her schooling. To practice medicine, in addition to a licensing exam, a physician must complete a residency of between 3 to 8 years plus another 1 to 3 years of a fellowship, depending on the specialty.

I’m not proposing that an attorney apprenticeship be akin to a residency of 3 to 8 years. However, I should expect our supervision requirements to be longer than that of a nail technician (which is 375 hours).

Again, most attorneys who enter practice at a firm, will receive the appropriate supervision. The concern is the new lawyer that with 360 hours of supervision decides to hang a shingle. The attorney is tasked with knowledge of the rules and how to practice. However, consider a family law case wherein a father loses parental rights or a criminal case where a defendant spends additional time in jail due to a “competent” counsel’s error. The damages are an ineffective assistance of counsel claim or a suit for malpractice against the attorney. The Courts of Appeal do not act as a second bite at the apple; rather, there are standards of review. Do these standards become more loose if the attorney was a privileged admittee? No. Does a monetary damage award and bar discipline make up for the loss of parental rights? No. These are significant concerns that must be reviewed before submitting the proposed order as-is.

The bar exam is an adequate representation of competence to pass the bar. As a result, I urge the Court to consider simply requiring new graduates to take a postponed bar examination in September, as proposed by the National Conference of Bar Examiners (and followed by New York, Massachusetts, and Connecticut). In the interim, the Court should allow graduates to practice under the supervision of an attorney until the next bar examination date (similar to the New Jersey state bar). (Each of the aforementioned states are UBE states, as is Utah). The attorney need not be in the same firm. Such an allowance will still allow attorneys to practice their trade during these difficult times while still providing the necessary supervision and support to new privilege admittees.

Should the Court decide that its current order for privileged admission is appropriate, I urge the Court to increase the required number of hours of supervision. Requiring 950 to 1000 hours would be more appropriate, and is reasonable for each new admittee to complete by the end of the year, December 31, 2020. Graduation commencement is slated for early May for the Utah law schools, and allows students nearly 7 months to complete their supervised hours. The 950 to 1000 hour requirement would be the equivalent of full-time work from graduation to the end of the year. At a minimum, the Court should require more hours for admission to the Utah Bar than a nail technician requires for licensure.

I applaud the quick and creative action of the Court in response to the COVID-19 pandemic. Permitting graduates to obtain plenary licensing without having to wait on an uncertain bar examination date is a wonderful result. The positive impact of the Court’s order will reach not only law graduates, but legal employers and communities in need of critical legal services.

Should the proposed order be issued, Utah will be setting precedent for the nation. Especially because other jurisdictions will be weighing similar solutions, I write to raise concerns with two aspects of the order. My respectful suggestion is to define eligible law schools using an ultimate bar pass measure, an approach which is in line with ABA accreditation standards and which recognizes that first-time bar failures are often owing to unfortunate personal, familial, or financial difficulties which have no bearing on minimum competency. Because a first-time bar failure does not necessarily indicate a lack of competency, I also suggest removing language disqualifying graduates who have previously sat for a bar examination.

The proposed order defines a “Qualified Recent Law School Graduate” as, inter alia, as one who graduated from an “ABA-approved law school that had a first-time taker bar examination passage rate in 2019 of 86% (rounded to the nearest whole number) or greater.” Proposed Order, I(b)(1).
While first-time bar passage remains a reportable statistic for ABA-approved law schools, it is not the measure used for accreditation. Rather, the ABA relies upon an ultimate bar pass standard, requiring at least 75 percent of a school’s graduates who sit for a bar examination to pass the exam within a two-year period. See ABA Standard 216.

Certainly, an important goal of the proposed order is to provide a measure which ensures licensed attorneys are minimally competent. Often, however, a student’s failure to pass the first bar examination is not attributable to competency. In my personal work with law students, I have observed many roadblocks to first-time bar exam success; cancer treatments, an ongoing need to provide financially for a family, and demanding childcare and eldercare responsibilities are among the heartbreaking circumstances which have prevented first-time success. Additionally, with licensing pegged to first-time bar passage, I worry that minority students, students with limited means, and non-traditional students will be disproportionately disadvantaged.

Two simple modifications to the proposed order would resolve any concern. First, the order could define an eligible recent graduate by reference to the school’s ultimate bar passage numbers, rather than its first-time bar passage numbers. A recent graduate would thus have “graduated between May 1, 2019 and June 30, 2020, with a First Professional Degree in law from an ABA-approved law school that had an ultimate bar examination passage rate in 2017 of 93% (rounded to the nearest whole number) or greater.” Cf. Proposed Order, I(b)(1). Utah’s two ABA-approved schools would remain eligible under this standard; the year 2017 is used as it is the most recent year for which ultimate bar passage data is available. Second, the order could strike the language requiring that an eligible graduate not have sat for a previous bar examination. See Proposed Order, I(b)(2).

The proposed order will allow law graduates to stand up and serve their communities, a wonderful result amidst the suffering created by the pandemic. The two modifications suggested here would recognize the limitations of first-time bar passage as a measure of competency and ensure a licensing pathway for graduates who can skillfully serve Utah’s legal community.

I have been practicing law at a large Salt Lake City firm for over 30 years. The Utah Supreme Court’s proposed order is a thoughtful and logical solution for these unprecedented times. Admitting students from law schools that have an 86% first-time bar pass rate poses an extremely low risk of admitting unprepared attorneys to the bar. That minimal risk is remedied by the supervised practice requirement. I commend the Court for its thoughtful and careful approach to these challenging times.

I am a graduating 3L at the University of Utah. I am grateful for the Court’s consideration of our unprecedented situation and the effects it has on our graduating class. Although I understand the concerns that have been raised by many individuals, I do believe I am ready to practice. I am sure the education I have received from the S.J. Quinney College of Law has more than prepared me to face the rigors of real-world practice. I began studying for the bar this past semester as I had planned to work this summer while studying to better provide financial support for my family. Although it has been a useful review of the black-letter law, I do not believe my bar preparation has helped me prepare to practice in any tangible way. A far greater preparation for me has been working at a firm gaining real, practical experience on actual matters. I have learned so much more in the time I have spent working at a firm this past year than I have through my bar studies. I have complete confidence that with an additional 360 hours of supervised practice, I will have the skills necessary to represent my prospective clients effectively.

I know many of my peers have been affected by the pandemic. The current situation has made a challenging test likely impossible for some. Even just delaying the bar would put a significant burden on students and employers because no one is sure when the next bar will be offered. How does one schedule almost three months off to study for a test when many students are currently looking for full-time employment. It is difficult to get a job when you have to tell the prospective employer that you will need two to three months off to study for a test with an unknown date. That does not make you very employable. Even with a job lined up, the current affairs of things make my offer less sure than it was last month. Being able to work with my supervisor toward the 360 supervised hours requirement will hopefully help me cement my value for the firm, whereas, I would otherwise be focused on studying and not contributing at work. This matters during a recession because it is much easier to lose an opportunity when you are away and forgotten. I would much rather be contributing every day, gaining real legal experience and building valuable skill sets than sitting at home studying and being forgotten. Even studying for the bar will be more challenging under the current stay-at-home directive because I have two kids under four years old that create constant disruptions.

This past week, my youngest son (15 months old) ended up in the emergency room in the middle of the night with breathing problems. Although the initial symptoms were similar to COVID-19, the doctors determined it was another virus, and thankfully, the COVID test came back negative. He has mostly recovered but is up every night crying for several hours—last night, I slept on the floor in his room. COVID-19 is not going anywhere anytime soon. Many people have been affected by the virus, and many more will be over the next year. I cannot imagine having to balance work, studying for the bar, and trying to care for a family member with COVID-19. The proposed order strikes the proper balance of protecting the public’s interest in having a qualified bar and providing recent graduates an opportunity to meet their various demands while still obtaining the skills necessary to represent their prospective clients well.

I understand many states have been postponing the bar—I applaud the Court’s willingness to take a different approach when they see fit, instead of just falling in line with their peers. I know whatever the Court decides, they will do with a great deal of thought, and the decision will not be taken lightly because issuing this proposed order was obviously not the easy path to take. Thank you.

I don’t think the idea has been well thought out, and I believe it misses the mark in several areas.
I started grading Bar Exams in 2001, and even grading this last Bar Sequestration on March 6 strongly demonstrates that a Bar Exam is needed!
I also don’t agree with the approach taken in canceling it. I am disappointed with the unfairness of the Proposed Order regarding the Bar Exam Waiver, because I think it is myopically based on the desires of, and benefits for, the two local law schools. The Court’s concerns about implied bias and interest in diversity should extend beyond concerns about ethnicity and gender, and extend to the diversity of perspective that comes from living in, participating in, and going to a law schools in communities other than the Wasatch Front. It substantially disadvantages those who could not attend a Utah school, for reasons other than academics. It does not address those who are doing clerkships for judges in other states, or any of the other myriad situations outside of going from a Utah law school to a law firm position.
And lastly, I don’t think the Bar Exam should be canceled, because I think proper accommodations can be made without much trouble.

I agree that something must be done to address the reality that there is no way to administer the exam in July and it is impossible to know when it will be safe to do so. Employers and clients need certainty in this time, and the well-being and security of graduating students is a nice added benefit. But more needs to be done to ensure competent attorneys are admitted into the bar, particularly when, as the Supreme Court and many commenters point out, there is likely to be an increased need for affordable legal services stemming from the pandemic.
The main issues I have with the proposed order are 1) it is a blatant protectionist measure that gives preference to students graduating from Utah law schools and 2) there is no real way to ensure the applicant is actually competent or, put another way, there is no mechanism to protect against cheating the system. At the very least, I recommend provisions that 1) take into consideration attorneys who are licensed in other jurisdictions and have applied for admission to the Utah Bar and 2) prohibit a close friend, family member, church buddy, or similar from overseeing the applicant’s hours.
I also reiterate the comments above regarding reciprocity concerns and the seemingly arbitrary 86% pass rate.
I have yet to see a compelling argument for not granting applicants provisional licenses and then administering the bar exam at a later date. While I – and most if not all of the commenters – am sympathetic to the stress, childcare issues, inconvenience, and economic considerations that come with studying for and taking the bar, it does not follow that the applicants should be completely excused from this (albeit imperfect) test of minimum competence.
The fact that this is opening the conversation about whether the bar exam is actually necessary to adequately measure competence is great; I think this conversation should be had across the country. But such a decision will need to be carefully planned and well thought out – likely years in advance so the law schools, courts, and state bars can prepare for it. If merely graduating from law school and working for 360 hours under the supervision of a licensed attorney equals competence, I would argue that it will take a lot more work from the law schools. Specifically, there should be no more Mindful Lawyering, Medieval English Law, or “How to Pass the Bar” classes — students must be expected to actually learn the law and practice it — and the schools should actually get rid of students who aren’t going to make competent lawyers instead of adjusting the schedules, reducing the workloads, and cashing the tuition checks from the people that “the bar will weed out later.”
Finally, I see many positive comments from members of the University of Utah network, which comes as no surprise as I received no fewer than four emails from the law school in the last 24 hours urging me to provide “supportive feedback” on this website.

I am grateful that through the proposed Emergency Modifications to Utah Supreme Court Rules of Professional Practice the Utah Supreme Court has exercised compassion and creativity in an effort to limit the negative effects of the covid-19 pandemic on those who signed up to take the July 2020 Utah bar examination. The proposed Emergency Modification is not perfect. In particular, the proposed rule should be amended to include individuals with DACA who are newly eligible for admission to the Utah Bar under the Court’s January 2020 order. Neither we nor the Court, however, should let perfection be the enemy of the good. The 360 hours of supervised practice provide an excellent opportunity for skill development in ways that a bar examination simply cannot test. Given the explosion of legal issues that Utah residents will face in the aftermath of the pandemic, the proposed order improves access to justice as well as benefiting recent law graduates.

Best regards,

Kif Augustine-Adams
Ivan Meitus Chair and Professor of Law
Brigham Young University
J. Reuben Clark Law School

To the Supreme Court and Judicial Council:

Thank you for reacting quickly to the current situation and for considering my opinion on this issue.

I am a current 3L at Pepperdine School of Law in Malibu, California. Entering the market with student loans is already a daunting task, especially during this crisis. So, I appreciate your creative solutions during this unprecedented time.

Regarding the 86% Utah pass rate provision, I hope that you will consider the context of a state’s bar exam when considering who will be allowed to practice under the new rule. California very often has the lowest bar pass rate in the country, and often by a wide margin. In the past two years California has had an overall pass rate of 50.1% and 40.7% respectively. Pepperdine’s July 2019 pass rate of 81.9% is well above the California pass rate but below the 86% Utah overall pass rate. I hope you take this into account.

One solution to this would be to look at Utah pass rate or out of state pass rates when considering who can practice under the new rule. Pepperdine’s July 2019 Utah pass rate was 100% and the out of state pass rate was 95.7%, both rates being comfortably above the state’s overall pass rate.

I spent my last summer clerking for the U.S. Attorney’s Office in Salt Lake City and I am hopeful to be able to continue working in and giving back to this community. I hope that I’ll be able to find a job back at home in Salt Lake. I would be very disappointed to miss my chance to practice in Utah because of California’s historically difficult exam.

I trust that you will make a decision that is in the best interests of 3L graduates and the community at large.

Thank you for your time and consideration,

Dave McNeill

Justices of the Utah Supreme Court:

I respectfully disagree with the proposed order. It appears the proposed order is an attempt to find the best solution (or least bad solution) in this difficult time, and the effort is certainly laudable. But despite its uncertainty, I think postponement is in order.

As is well-known, the purpose for imposing requirements on those who have the privilege to practice law is to protect the public. What the public needs is more competent attorneys, not merely more attorneys. The passing score on the bar exam is already way too low. So, to take the step of granting a license to practice law to individuals who haven’t even taken the bar, seems like the wrong approach. The correct approach in a word is postponement. As soon as it is safe to administer the bar exam, notice can be given to applicants with sufficient time to study, and the bar exam can be administered anytime this fall or next spring.

The proposed order purports to benefit the public, legal employers, and the applicants. The justification that the proposed order’s approach will benefit the public is at best incorrect and at worst highly disingenuous. There is not such a dire need for fresh new lawyers in our state. In fact, many people feel like there are too many attorneys in Utah (insert joke about there always being too many lawyers here). Furthermore, the notion that legal employers are in desperate need of new attorneys seems exaggerated. Those same applicants can work as law clerks and engage in limited practice in the meantime. And in turbulent economic times, legal employers tend to higher less. While the policy reasons to support the proposed order seem facially compelling, the reasons provided are unpersuasive upon deeper contemplation.

As for the qualified-schools aspect of the proposed order, setting a bar-passage-rate requirement for schools is a lose-lose approach. The current required rate, 86%, acknowledges that 14% of people who would not have even achieved the (already too low) passing score on the bar exam will be admitted to the bar, assuming the same success rate of course. Allowing these applicants admission to the bar is a great disservice to the public. And this required rate precludes many reputable law schools. However, if the proposed order is altered to lower the bar-passage-rate requirement for schools, more incompetent and unqualified applicants will be admitted to the bar. Their admission will ultimately harm the public the most through inadequate representation.

As for the law school graduates, the proposed order is not looking out for their long-term best interests. They will be ostracized and unable to relate with the rest of the bar for their entire careers. We are all paying a price and sacrificing amid this crisis. Bar applicants are no different: no doubt postponement will burden their lives. At the end of the day, though, they should pay that price for the privilege to practice law, not the public. The proposed order will undermine confidence in the bar and potentially harm the public.

IF the “apprenticeship approach” is the inevitable path, from which you can’t be dissuaded, 360 hours are greatly insufficient. From June to the end of November, there are 26 weeks. That timeframe would mean that an applicant could work approximately 13 hours per week and still qualify for admission to the bar. A comparable summer timeframe is only about 30 hours per week. Such limited time working asks too little of the applicant and falls significantly short of an apprenticeship that will adequately assure the public (and possibly the labor market) that the applicant is at least minimally competent. A more rigorous requirement should be imposed. Postponement of the bar exam is the better option.

I have spent the last three years studying, working, and developing my legal skills in anticipation of becoming licensed in Utah. I want to demonstrate my skills and prove my ability to be an attorney. Many others have articulated the critical need for this proposal. I join them in thanking the Utah Supreme Court for this proposal to allow graduating students to seek licensure in a timely manner while demonstrating our competence to practice law. Delaying licensure, even by a few months, would cause serious harm to applicants. For me, a delay will have financial, personal, and professional ramifications. The current pandemic exacerbates the negative impacts applicants will experience if there is a delay to licensure.

Others have noted that requiring an applicant to graduate from a school with a first-time bar passage rate of 86% in 2019 is a very high standard that favors in-state law schools. There is also a disparate impact on minorities and low-income individuals. Despite being accepted at both of Utah’s in-state law schools, I chose to attend William S. Boyd School of Law (UNLV) for many reasons, including financial. As a graduating 3L, I am qualified under the proposed order, except for my school’s bar passage rates in 2019. I urge the Utah Supreme Court to contemplate those of us who are excluded under the proposal and consider appropriate modifications.

There are several modifications the Court could consider. Others have suggested lowering or waiving the 86% bar passage rate. Alternatively, there could be a tiered system that requires applicants from schools with lower, but still commendable, bar passage rates to complete additional supervised practice hours. For example, applicants whose school has a first-time bar passage rate of 81-85% would be required to complete 400 hours of supervised practice, applicants whose school has a first-time bar passage rate of 76-80% would be required to complete 440 hours of supervised practice, etc.

If the Court is inclined to leave the 86% bar passage rate standard in place, please don’t leave those of us excluded from the proposed order without a licensure method until the next offered bar exam. Most of the individuals who would normally sit for the July bar are recent graduates of Utah’s in-state law schools and would therefore qualify under the proposed order. That leaves a relatively small number of individuals, including applicants from out of state law schools, out of state attorney applicants, and those who have previously taken the Utah bar exam. The Court could consider administering the bar exam in an alternative format (online, small groups, etc.) for those of us who don’t qualify for supervised practice licensure. Alternatively, the Court should consider an avenue for those who don’t automatically qualify under the proposed order to apply to be qualified for licensure through supervised practice. This would allow those who have previously taken a bar exam, are licensed in another state, or attended a law school with less than 86% bar passage rate to demonstrate why we are qualified for licensure through supervised practice. This solution would allow myself and others to be judged on our merits, rather than the bar passage rates of previous students.

We need some version of this proposal. A temporary practice rule will not give us certainty. It could even cause more difficulty in the future, as we do not know when social distancing recommendations will allow administering the bar exam and studying for the exam will require significant time away from employment. Like my peers at the University of Utah and BYU, I want the opportunity to demonstrate the knowledge and skills I have developed over the last three years. I am not asking for a free pass and am willing to do whatever is required to become licensed. In this unprecedented time, please allow all of us the chance to prove ourselves and earn admission to the Utah Bar in a timely manner.

I am not a Utah resident, but I am a third year law student in another state. Setting the bar passage rate at 86% as a requirement is not fair. The bar passage rate of a previous class should not dictate the ability of another student gaining admission to the bar. The diploma privilege is obviously a “privilege” however, that does not mean that a student should be at a complete disadvantage by coming from a school that has lower than an 86% passage rate for 2019. This should be completely lowered or removed. There are other requirements that could be placed that would not be such a hurdle from other students wanting to practice law in Utah, especially those who have families in Utah. The 360 hours of being supervised by a practicing attorney is one requirement that is fair for all, and makes a lot of sense. However, judging an individual because of the bar passage rate of the prior year is not a fair requirement.

As anyone who has studied for and taken the bar exam can attest (I passed the New York State Bar a few years ago after studying at home in Utah),it is difficult to imagine the additional mental and emotional toll that preparing for the exam in the midst of a global pandemic would bring. Almost every element of a study regimen that helped me prepare for the exam would be frustrated by the current and likely future “stay at home” conditions of graduating law students. From a rigid study schedule, to necessary study breaks of physical exercise at the local gym, to vital social interactions with friends and family, there is little about the typical bar study process that could be maintained this spring/summer. As such, the idea of asking for a typical bar sitting process this year is unfeasible.

With that being said the automatic passage of all graduates this year does seem to be too blunt a tool and an overinclusive approach to this narrower issue and preparation and passage of the bar exam has obvious benefits to the state polity and the individual applicant. I would try to strike a more effective balance of the unprecedented situation and devise a more creative solution for this year’s law graduates.

I wonder where this urgency is coming from – where is the need for new lawyers? From what I can tell, many lawyers are just trying to keep their jobs right now. If this is just a matter of needing more pro bono service, the 3L practice rule is sufficient to meet that need.

My major concerns on this rule are centered on the potential for this rule to have a discriminatory effect, particularly on minorities and lower income invididuals.

1. First time taker coming from an ABA Law school with 2019 bar passage rate of 86%. 86% sounds like an arbitrary number set to ensure that the schools in Utah are able to benefit from the rule without any consideration of the choices some students desiring to practice in Utah might have made in attending a law school with a lower overall passage rate in another state. The rule also completes ignores experienced lawyers who are seeking to practice in the state of Utah and the complete disruption of their economic lives. It treats diffirently those who failed in February 2020 from those who will have failed in July 2020 where the February 2020 amount would be significantly smaller that the projected 14% in July 2020.

2. 360 hours of supervision. This amounts to only 9 weeks total of supervised practice which can be stretched out over the space of 7 months to December 31, 2020. There is no indication of when these hours will start thus a recent graduate may be eligible for license as early the first week in July obtaining compacted but seriously limited experience especially given that CLEs count as hours. Many other professions that require a supervised practice component require upwards of 2000 hours (2000 for social worker, 4000 for physchologist). If the rule passes, it should be modified to at least 1000 hours of supervised practice so the public can be reasonably assured that a solo practicioner has competence. Overall is order seems to have been written with a very limited or otherwise elitist view of the types of lawyers that Utah produces or that practice in Utah.

3. Requirements of supervising attorneys. It is unclear what “public discipline means” Is this only professional discipline or would this emcompass other types of public legal discipline such as a judgment or order entered against an attorney whether prior to or after becoming an attorney?

4. The bar exam opens up career paths to new graduates. This practice rule might have the effect of creating a situation where opportunity and admission to the practice is predominantly based on networking, whom one knows, or who is willing to give someone a chance. This leaves ripe the opportunity for increased discrimination and bias and decreased diversity in the field.

5. Some students do not take courses that are beneficial or essential to an area of practice until studying for the bar. For example, while criminal law is required, Criminal Procedure is not. You might have a situation where an individual having never taken a course in criminal procedure, moves into the field of criminal law after being admitted to the bar through other experience. This would not be safe for the public.

Proposal.

While the committe found that it would be unfair to ask recent graduates to endure a wait-and-see-when type of situation, this is not a new experience for recent graduates who year after year must wait and see until the earliest September if they have passed and if they will retain their offers etc.And so is not very well founded. The student practice rule was put in place for situations like that and can be more effectively utilized here. Presumably the February 2021 exam is still projected. The court could still utilize a provisional lisence when one applies to participate in the practice rule that accounts for situations of lateral hires, experiences lawyers who are relocating, applicants who failed in February 2020 or July 2019. This temporary license could expire October/November 2021, thereby giving individuals ample opportunity to sit and pass the bar exam.

As a retired Utah attorney who practiced in Utah for over 40 years, and took the Utah Bar and passed it to be admitted back in 1975, I am opposed to this order for several reasons:

1. Public input wasn’t long enough. Although you said the time sensitivity is the reason for the short time, I believe it is because you have your minds make up.

2. The manner of how to give public input should have been part of the order but was not and therefore is insufficient to accept the rational basis that public input is adequate. And when you say “public” you really mean the attorneys.

3. What was the basis for concluding that an 86% law school graduate passage rate was a sufficient standard? That means 14% of those graduates from that law school who did not pass the bar, if the % was the same this year, would become licensed attorneys if they met the other requirements. If a given law school has about 150 students per graduating class, that means 21 graduates who would have failed the bar exam, will NOW BE ADMITTED.

4. I personally know of a case, a good friend of mine, who graduated from the BYU J. Reuben Clark law school but failed the bar exam. If he graduated this year, guess what? He would now be practicing law in Utah!

5. If you use the faulty logic proposed to justify this order, then why make it temporary? Just do away with the Bar Exam period, for a number of reasons that have been proposed over the years. Now just add health crisis to the list.

6. Why not postpone the exam? I disagree with your argument for delaying the exam. The minor inconvenience is outweighed by the good reasons for having the exam, if not just tradition. Besides, it would give more time for the applicants to study. You can never have enough time for that.

7. Students poor? Why that standard of justification? Who isn’t poor after graduating from law school? I was. And it took me 10 years to pay off my school debt. That was part of the sacrifice I made and knew I needed to make in order to do what I wanted to do and was good at doing. If a student makes it into any law school they will most likely have a financial burden when they graduate. That’s life.

8. Why not ill health as a justification to not have to take the bar exam? That may relate better to the underlying cause of this order anyways, the health problem with the COVID-19 virus. And why use the COVID-19 Coronavirus as the reason? We will most likely have fewer deaths from that cause than the annual flu. And there are many other health reasons that could be used to justify not taking the exam. But just because government has jumped on this health wagon (when they could have done this with any of a number of other health “emergencies”), seems arbitrary and capricious to use those famous legal words.

9. Why even have a bar exam. Examine the reasons why it was and has been until now, necessary or required? Are those reasons no longer applicable? Or, are you willing to put them aside for one exam, because of a health situation that is debatable as to the applicability to those who would normally be taking the exam, the younger aged applicant? You haven’t even addressed the age aspect of the COVID-19 impact.

10. Why not have the bar exam, but accommodate the health requirements or suggestions that are now in place (such as social distancing, etc.), which based on the most current information will most assuredly be changed with lighter restrictions or lifted by July in Utah if not elsewhere. Those accommodations are not very costly in manpower or actual costs. Has this even been thought of? No mention in the proposed order as to what considerations to have the exam with these modifications was mentioned.

11. This outcome caters to law schools because they are judged in part by how many of their graduates can pass the bar. This year will help them in that category. I guess BYU and Utah will go up in the annual ratings.

12. One could say this also helps the Utah Bar. The more attorneys as members, the more dues and other revenue they can receive from practicing lawyers.

13. With the economy the way it is, many of these exempt bar exam applicants will not be able to find a job. I can relate to that. I was in that same situation after I took the bar. So where will this “supervising” help come from for those people?

14. And if we assume 6 months to make the 360 supervised hours, that is 60 per week basically. But if you can’t find a job right away, the number of hours will increase to the point where it will become impossible to meet the 360 requirement because there aren’t enough hours in the week, to live much less practice law!

15. And who determines under Section IV b. when the “public health crisis abates?” President Trump, Governor Herbert, the Salt Lake County mayor or Salt Lake City mayor, or my personal physician? And the statement that the Bar Examination can be administered safely” Has no standard. It could be argued, as I have done herein, that such an exam could be done now “safely” with certain conditions.

16. One last item, when I took the bar exam over 40 years ago, I brought up the question of why even have an exam if you come from an accredited law school? Isn’t that supposed to be part of the purpose of accreditation, that the law school had met it’s burden of proof to show it was doing what accredited law schools should do?

I was told two things:

1) Different law schools had different philosophies of how they would treat students. Some would admit almost any applicant and then screen out those that couldn’t cut the mustard over the next three years. This allowed a few who could not get the grades and LSAT scores to enter initially to prove they had what it took to graduate. Some California schools still do this. And sounds like you are also leaning toward this with the Wisconsin rule.

2) An older licensed attorney told me, “If I had to go through hell, so should you.” Initially offended, I came to understand the wisdom of his curt remark. The bar exam is hell, but it presented a challenge that regular law school did not. And because of that, it did wean out in a different way than law school several applicants who should not be practicing law.

I therefore request that your proposed order be withdrawn and the bar exam continue on a delayed date basis.

Respectfully submitted,
Bruce Barton, J.D.
First graduate of the J. Reuben Clark law school (A member of the graduating charter class of 1976, but who graduated in 1975 one year earlier along with three other students)

I support this order as it is written and with minor changes which will allow for more fairness.

I am a current third-year law student at the University of Utah, and I will be directly impacted by this order. The current world conditions are unprecedented. The world is changing all around us and we don’t know what the future will look like. This order creates a deep sense of peace for me and my family at this time. My family strategically planned financially for the summer allowing me to study full time. If the bar exam is at some uncertain time, my family could face extreme financial hardship while we wait. Further, I am homeschooling a first-grader, who is a very active and social child. Without any options for childcare, family support, or alternative study space, it will be virtually impossible for me to study productively for a summer or fall bar.