Posted: April 9, 2020
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
Proposed Order for Temporary Amendments to Bar Admission Procedures During COVID-19 Outbreak. The proposed Order would modify the Bar Examination passage requirement on an emergency basis for certain eligible law school graduates, based upon the Utah Supreme Court’s constitutionally granted authority to regulate the practice of law in Utah, and in consideration of the public health threat currently posed by the novel infectious coronavirus (COVID-19). The Court will accept comments on this proposed Order through April 16, 2020.
This proposed order signifies pragmatism and a willingness to evolve when circumstances dictate. However, I fail to see the wisdom of barring someone from enjoying the necessary benefits of this proposed modification merely because they have sat for a bar exam (in any state) prior to the modification. If all other requirements are met, such a circumstance should be irrelevant. Therefore, the requirement that the otherwise qualified graduate must not have sat for a bar exam should be stricken.
I agree as well.
I wholeheartedly disagree with both your suggestion and the suggestion of the bar to allow people a pass without examination. Failing the bar in another state proves more work needed to be done, and using a crisis such as COVID-19 to circumvent that is dishonest.
The bar should be ashamed of themselves for even allowing this logic to come up in serious conversation. This privilege would never be allowed to other examined professionals such as doctors and engineers. You must prove competency in a test setting and not doing so tramples the hard work and dedication that others put in for the same licensure.
Wisconsin has diploma privilege and they don’t have a great scourge of malpractice. I worked hard for my license and I do not want to endanger applicants, their families, and our community. Prioritizing safety and pragmatism doesn’t “trample” on my what I’ve done (and frankly the National Conference of Bar Examiners have surveyed law school deans, judges, and practitioners who overwhelmingly criticized the bar exam for being a very poor measure of competence)
I wholeheartedly agree with all you said. The mere idea of this proposal is a sham that at the very least puts the public at potential risk.
The actual sham is the idea peddled by resentful lawyers/citizens that students are using a once-in-a-century pandemic and an impending economic crisis to circumvent an exam where most pass. The faulty reasons advanced by the legal community are:
1) I went through this hazing ritual–that is that bar exam–so you need to too.
-Tradition or self-pain is never a good reason to maintain a social practice;
2) The bar exam measures competency to practice law.
-The ability of the bar exam to test anyone’s competency to be a lawyer is, at best, debatable. What this argument fails to capture is that other alternatives equally provide, at best, debatable ways to assess a law student’s ability to practice law. Moreover, alternative measures best ensure the safety of law students compared to the original method. Because both safety and efficacy are provided by the alternative method, it is superior. Really, the case should be rested here;
3) Law students need to toughen up. Adversity is a par of the course.
-Law students are not lazy. They went to law school. Being able to face adversity does not mean being willing to risk one’s own life or that of others. In addition, I am not surprised I need to repeat basic public health and science concepts to lawyers: “flattening the curve,” does not remove the viral threat. It merely prolongs it over time so that our medical systems are not overwhelmed. This means the viral threat will remain so long as therapeutics and vaccines are not available. By suggesting the bar exam, are you suggesting law grads should risk their lives?
Law students have made incredible, involuntary sacrifices to ensure the wellbeing of older generations, including for the many of the seasoned lawyers on this forum bashing the younger group. It’s time we recognize their sacrifice and exercise compassion, common-sense, and decency. And for those who say they won’t hire law students who receive a diploma privilege, I’d hire a law grad that finished his finals and graduated amid a global pandemic and recession any day. Now that’s grit.
What’s a sham is commenting without using your name. This order should not be adopted. And comments without names should not be considered.
Hi Jordan –
While I completely respect your point on view on this, I must strongly disagree with your reasoning. The bar exam does not: 1) guarantee honest representation 2) guarantee competent representation 3) ensure success as an attorney 4) demonstrate legal skill 5) protect clients any more than not taking the bar.
What the bar exam does do is showcase an individuals capacity to memorize a large amount of material using professionally prepared outlines, and follow highly tested methods to increase the odds of passing a standardized examination. There is certainly some value in that, however a persons competency as an attorney is not proved out in a single test – its demonstrated over a lifetime of achievement and hard work.
Further – the proposed rule puts additional criteria on the diploma privilege, such as graduation from accredited schools that have demonstrated high bar pass rates (86%+), requirements (for new graduates) to work under a supervised attorney, and so forth. The restrictions put in place by the Supreme Court are not only reasonable under these circumstances, but may actually produce better lawyers in the long run because of the work / supervisory requirements. You seem to imply its unfair that some can avoid the test because this “tramples the hard work” that others put in.
However – your hard work is not diminished in any by this rule. You passed the bar, you earned it, and you should be proud, just like everyone who takes and passes that exam. But the difference between you and the current law graduates is: they don’t get a chance to pass the bar. Its been cancelled – meaning – these people aren’t able to support their families, take on clients, or work in the field they have studied hard to be a part of. That…is trampling hard work and dedication that they put in for the licensure..and is very unfair indeed. And that is why this rule is needed.
To suggest the bar is the only way to prove competence to practice law is to suggest an individual could cram for a test for only a few months (as most students do for the bar) and become a qualified attorney. This is an insult to the legal profession and to law schools.
As someone who had to take the bar exam, I think not taking it does law grads a major disservice, as well as those they will serve. Not only have I been able to overcome challenges I didn’t think I’d have to face by taking the bar, but I’ve learned more about myself and have become a different person because of the bar exam. The time constraints and stress of the bar showed me just how great I could be pushed and that I could find the info in the deepest part of my brain when I needed it the most. Nothing in law school did that for me with the same kind of precision. In fact, so much of my bar study taught me things that were never taught in detail in class, and unfortunately that still continues in classes today. I can’t even count how many 3L’s I’ve heard quote the mailbox rule when mailing in documents to the bar office, thinking somehow it applies and their letters don’t need to be received by the bars deadlines. In addition, it is not publicly made known to many students that there are bar specific classes. When I learned this late in my 2L year, I also learned that many of those classes aren’t offered regularly- in fact some that I would have liked to take weren’t offered my 2L or 3L year. Another reason bar study and taking the bar is crucial so these subjects that play such an important role in our everyday knowledge are learned. Even the courses that are offered don’t provide enough learning to fully understand a subject, nor is one required to take them. All of this plays into the necessity of the bar exam. Second, for these grads, if they don’t take the bar exam, I wonder how many jobs they’ll apply for and either not be selected based off the year they were barred, or will they subconsciously or consciously be at a pay disadvantage or always be viewed as lesser of an attorney? I would hope not, but I think it would be a hard one to overcome.
Third, clients are seeking someone with specialized knowledge and the ability to critically issue spot. Their case means the world to them, and it would be hard to give a case to an attorney they may not fully trust. Yes, taking and passing the bar exam exhibits that trust. Just as no one would trust a CPA with their finances without having passed certification, or a doctor without sitting for the boards, passing the bar exam does the same thing.
Lastly, I think this is premature at best. What better time to study than when the country is in quarantine with nothing else pulling their attention away? Besides, we don’t yet know what July will bring, and even having to delay a month or two is not enough to warrant such a drastic measure. This pandemic won’t last forever- there’s no reason to take such drastic measures that will likely cause drastic reactions for their entire legal career.
Please, there’s nothing about the Bar that proves you’ll be a good attorney, or even a competent one.
Your opinion loses all of its weight when you consider the current situation. If the option to take the Bar was on the table, people would take it, but it’s not. It’s not a dishonest circumvention of the system, it’s a temporary and valid alternative.
Lastly, you are suggesting depriving people of their ability to practice without any knowledge of their ability. We know for certain that some people would pass the exam at least, correct? So you are unfairly taking their opportunity away based on nothing.
Unless you’re going to pay for these law students’ loans, the income they will not be able to make, their lost time, etc… you need to mind your business.
What about attorneys like me who have practiced in another state for 22 years and is looking to relocate and engage in a meaningful career – can I start or acting under the supervision of a Utah attorney? Why would I have to take a second bar and prove myself twice when these kids don’t have to take a single bar exam?
Completely agree. How they think a recent law grad has more legal experience than an attorney makes no logical sense. Many general principles and laws are universal between states, and for the differences, the attorney will held to the same legal standard as that of a recent grad (although the attorney will have the experience to make the right choice whereas the new grad probably won’t. Doesn’t make any logical sense to only license recent grads. It would make more sense to provide both parties the opportunity to apprenticeship.
Completely agree. The idea of requiring experienced attorneys already admitted in other jurisdictions to take the bar while waiving this requirement for unproven new graduates is so counterintuitive, I have to believe there will be a carveout for experiencing attorneys in any rule that is ultimately adopted.
I’m sorry that as an attorney who has been practicing for 22 years, you’re unable to see what’s right in front of you.
You were given the opportunity to take the Bar exam, these graduates are not being afforded the same. You have the full ability to remain in your current location and practice. These “kids” have no options aside from waiting.
I find it funny that the first thing you mentioned was your practice experience, the very thing you’re trying to deprive graduates from getting.
Wait I agree with originally proposal not this comment above.please delete previous comment
Totally agreed! As a licensed attorney, I get the feelings of unfairness surrounding this order—it’s tough to think some applicants will be spared the exam knowing how much work went into preparing for and passing it. But it seems those feelings are the real driving force behind opposition to this proposal, and they should not be the basis for rejecting it. This order pragmatically prevents the logistical disaster of postponing the bar and also ensures that only a very, very small number of applicants who would’ve failed the bar will be admitted. The only two qualifying law schools in Utah have 90%+ passage rates, and many applicants from non-Utah schools will be coming from schools that are higher ranked and have higher passage rates than the qualifying Utah schools. Also, among the small percentage of admits who would have otherwise failed the bar, it’s a bit overblown to assume that they, or a large percentage of them, will be a risk to the public. I think the public risk concerns are therefore very insignificant, or at least materially the same as any other time new applicants are admitted to the bar.
Agreed as long as the person that has taken another bar examination in another state has passed that state’s bar examination.
I think the requirement that the otherwise qualified graduate must not have sat for a previous bar examination should be changed to read, “If an applicant has sat for a bar examination in another state then that applicant must have passed that state’s bar examination and the applicant will not be taking the bar examination in any state or territory in the United States in July 2020.”
I took the bar just over two years ago. I do not believe punishing an entire group of people and forcing them to put their entire livelihood on pause is the correct way to respond to these unusual circumstances. I learned more in my first year of practice than I learned studying for the bar. The proposed rule of mentored hours more than makes up for all the studying for the bar these individuals would have been doing. I believe the rule should be more inclusive to others that have signed up to take the July bar, not less inclusive (i.e. allow all that signed up not just graduates).
I have seen comments that individuals should be allowed to practice under the 3rd year law student rule until the February bar. This is impractical I do not know many employers that would be willing to give workers time off to study for the bar, and working while studying, at least from my experience, would be unjust punishment.
Due to the extremely unusual circumstances, I believe all those who applied for the July Bar, and meet the supervised hour requirements should be admitted to the Utah bar. We should not punish people for applying for the bar the year a pandemic hit.
Agreed. If one has attended an accredited school with a first time pass rate of 86%, has taken and passed the bar in another jurisdiction with a similar or even more rigorous bar examination and has been in practice for several years in another jurisdiction, the emergency diploma privilege should apply to such an otherwise qualified applicant.
This should absolutely be amended to include everyone who applied to take the bar. Not just recent grads.
In normal times, I am a staunch supporter of the bar exam. However, these are not normal times. The proposed order which allows for admission to the Utah bar this one time only has sufficient requirements, such as graduating from a Law School with an 86+ or higher pass rate plus 360 hours of working under the guidance of a licenced attorney prior to bar admission, is more than adequate to protect the safety of the public from potential unprepared new attorneys.
Section I.b.1. It is unclear to me if the bar passage rate relates to a national average of all bar exams or just the Utah bar. Some affected individuals may have attended schools with few if any takers of the bar exam or schools where many or most of the graduates take bar exams with significantly lower first time passage rates.
General comment: I would also generally suggest the order be expanded to permit lateral hires from out-of-state who are actively licensed in their home jurisdiction to immediately begin practicing law in Utah. The bar interprets our current rules such that any lateral hire from out-of-state must sit for a bar exam before moving to the state and beginning his or her practice. If we aren’t anticipating a July exam, we will be cutting off out-of-state lateral hiring completely.
Agreed with regards to lateral hiring.
I also agree that the order should be expanded to permit lateral attorneys moving to Utah (who are members in good standing of the Bar in another state and have submitted a timely application for the Utah July 2020 bar exam) to begin practicing immediately upon moving to Utah. It does not make any practical sense to allow inexperienced recent law graduates to begin practicing in the state without first passing the bar exam, while at the same time prohibiting experienced attorneys that have taken and passed the bar exam in another state from enjoying the same privilege. Experienced and qualified out of state attorneys seeking to join Utah law firms this summer will be at a serious disadvantage if the order is finalized in its current form.
I thank the Court for its willingness to consider such a proposal given the national crisis we now face.
I completely agree with the comments here proposing that the requirements of (a) recent graduation and (b) having never taken a bar exam are counterproductive and counterintuitive, as they would exclude attorneys who have been practicing for many years (even in Utah) but who for one reason or another need to take the Utah bar.
As an example, consider attorneys who have practiced for a decade in this state under Utah’s “house counsel” license, a limited license allowing in-house legal work but which requires maintaining active licensure in another state. Utah requires such attorneys to sit for the Utah bar if they wish to be fully licensed, since Utah does not count time spent practicing in Utah toward “admission by motion” time requirements. The proposed order would give preferential treatment to brand-new law graduates while requiring house counsels seeking full licensure to continue to wait out the current crisis.
I do agree that the order should only apply to timely applicants for the July 2020 exam given that that is the only exam to date facing COVID-related disruption.
Thank you for considering my comment.
Completely agree with the comments in this string. Best to adhere to the policy reasoning behind this order, which is largely to help the citizens of UT through the immediate licensure of attorneys willing and able to help its citizens. Including transfer attorneys to this state, licensed in another state simply makes sense. Otherwise, the policy goal is a farce designed to only look out for UT law school grads instead of it’s citizens.
I also completely agree with this string of comments regarding licensed attorneys from other states. Immediate licensure of lateral attorneys should be included.
I appreciate the UT Supreme Court adapting and acting preemptively during this crisis.
I agree that lateral attorneys in good standing moving to UT should be included in this proposed order.
Postponing the bar indefinitely would be highly inconvenient for laterals trying to obtain a UT license, seriously impacting their employment, as well as the law firms anticipating the new hires. And holding the exam while risking the health and safety of those involved is untenable. If recent grads can qualify for a license by showing their competence via apprentice hours, surely a practicing attorney in good standing being hired laterally should also qualify and be able to move on with their career despite this uncertain time.
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 agree. And I would also suggest expanding this to cover federal clerks in any state who had applied to take the Utah bar this summer. It seems that any federal judge, regardless of which state they are licensed in, should be able to provide the necessary supervision. This is especially true where people might be clerking for two years outside the state and wont be able to get the Utah supervision required.
(and just to follow up on the two-year point, a lot of students depend on admission to a bar for a substantial pay increase the second year of clerking)
For many attorneys in Utah, providing legal services includes preparing and filing legal documents on behalf of clients. Such documents may include documents for various state and federal regulatory agencies, tax documents, patent application and prosecution documents, and so forth. While the proposed Temporary Amendments cover such practice (see Section III(d)(4)), additional language may clarify that such practice is encompassed within the requirements for Supervised Practice. The additional language may be, for example, “Perform other appropriate legal services, INCLUDING PREPARING, SIGNING, AND FILING LEGAL DOCUMENTS, but only after prior consultation with the supervising attorney.” (Proposed additional language in all-capital letters)
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.
I agree with this. I would also add that it this decision may affect Utah’s reciprocity with other states. If other states know that a group of Utah lawyers have never taken the bar, will they still accept Utah lawyers? Also, many law schools hold graduation in May. For example, I graduated in May 2019. Technically I would fit into this category of recent law graduates, but I took the July 2019 exam. Do I get a refund? I think there are too many issues if we allow a group to not take the bar exam.
I think the best thing to do is to grant people who have applied to take the bar exam, or become barred in Utah, a temporary license to practice law for 1 year from August 2020. This would then give students and lawyers moving to Utah the ability to work until they have to take the bar. Further, a 1 year licence would give those people two chances to take the bar, one in February 2021 and one in July 2021.
I feel like there are two choices: 1) people take the bar at a later time, either postponing the bar or give them the temporary licence; or 2) we decide the bar does not do what it was intended to do and we come up with a new, permanent, method to determine who is a licensed attorney in Utah. Otherwise I think there will be an issue that this group will be seen as “second rate attorneys” compared to those who have taken the bar, and who will take the bar in the future.
Here is a list of states with lawyers who have never taken a Bar exam, are there reciprocity problems from these states?
The thinking that the Bar exam is the end all for public protection of competent legal work is outdated and detrimental to actual public protection and the provision of legal services to the greatest number of people.
Passage of the Bar does not equate competence nor ethical compliance as the Utah Bar along with most states publishes a record every single month of all the lawyers who did something entire incompetent that month after years of practice and passing the Bar exam 30 years ago. The exam is unnecessary to protect public interest or promote the competence of lawyers– supervised practice of law is superior in every way in preparing new lawyers for competent legal practice in their chosen areas.
The bar exam is an equalizer that validates a person’s ability to broadly know the law and apply new facts to that broad knowledge. Supervision will likely only expose the recent graduate to narrow field of practice and the new licensee will likely be void of any basic understanding of other fields of practice.
Finally, every graduating class has individuals that do not adequately prepare for the bar examination and do not pass. Now those same individuals can become licensed as long as they are willing to do the supervised work. The individual will get paid for the supervised work and avoid all of the stress and hard work that it will take to actually pass the exam.
Two points that make your argument fall flat on its face: first, I doubt that before taking the bar, you knew every legal topic that you’ve ever worked on a client with. Law school teaches you how to conduct legal research. A good lawyer can work through these “fundamental legal matters” while in practice, as I’m sure you did. Second, if these law students are “relegated to a life of ‘second class status,'” they can rectify that by taking the bar exam when it’s safe to do so. It’s a simple solution and it leaves the choice in the hands of those actually experiencing the hardships.
Don’t be blinded by self-righteousness.
Mr. Leta argues that if a student doesn’t take the bar exam, that student would create a public risk, because the material on the exam is “considered fundamental to the practice of law.” This is a wholly unconvincing argument however. While all the materials on the bar are fundamental aspects of the law, they are not fundamental components to every attorney’s practice of the law.
Mr. Leta does not explain why a patent attorney needs to know family law or why a criminal attorney needs to be tested on general knowledge of secured transactions. Sure it is plausible that the attorneys described in that hypothetical will face questions involving those practice areas, but Mr. Leta also doesn’t provide a convincing reason as to why such attorneys cannot research those issues when they come up. A big part of an attorney’s job–particularly early on in her career–is to research questions that she hasn’t faced before. That aspect of the job does not disappear by virtue of her having taken the bar exam.
As per the “second-class” status argument, I’m not sure what this is rooted in. I’m not sure if the concern is that they will be second class in the eyes of future employers or potential clients. Most clients aren’t sophisticated, hence their coming to a lawyer for assistance, so the idea that the attorney will be viewed as second class by clients doesn’t hold a lot of weight for me. And if the argument is that they will be second class to future employers, the question is how many employers are asking for bar exam scores? I think that would be the exception rather than the rule, especially if an attorney has been practicing for a number of years, which will be likely for most 2020 students before they lateral into a different position.
I completely agree with David Leta. I do not believe 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.
The requirement for a supervising attorney to have been licensed for 7 years is too long. It should be reduced to 5 years.
Agreed. 7 years seems excessive when partnership in any given track is usually 5 years now a days (even if it’s a Jr. Partner).
I agree. The 7 year requirement would drastically reduce the number of attorneys able to help facilitate this order.
The first thing I would like to do is to thank the Utah Supreme Court for recognizing the hardship COVID-19 has created related to the July 2020 Bar Examination. I’m sure this has not been easy and I thank you for all of your efforts.
I believe your proposed criteria is commendable and very creative; but the proposal only seems to take into account recent law school graduates who have applied for the July 2020 Utah Bar Examination, who would then become “newly licensed lawyers”. I have applied for the July 2020 Utah Bar Examination but I am attorney with over 25 years’ experience, my law school (Cleveland-Marshall College of Law) has a 96% first time pass rate on the bar and I am licensed in 5 other jurisdictions. I am therefore surpassing the criteria you have proposed.
There may be other attorneys who have applied for the 2020 Bar Examination with similar proven track records of success. I think these attorneys who meet this new criteria should also be eligible to be licensed in Utah without passing the Utah Bar Examination.
Thank you for your time and consideration. Please stay well.
Agreed. Licensure in another reputable jurisdiction, in good standing, says more about the ability to practice than a JD. I too am registered for the July 2020 bar, licensed in another jurisdiction with a substantial amount of trials and law and motion practice, but somehow this proposal suggests a recent grad would be able to provide better legal representation? Doesn’t seem well thought out in that regards.
Agreed. Attorneys barred elsewhere have valuable experience and talent that would be otherwise lost to other states.
Agreed. I am also signed up for the July 2020 bar. I passed the CA bar 11 years ago and have significant experience that I am bringing to a UT firm as a lateral hire. Surely attorneys in my position should qualify under this new criteria and be eligible for a UT license. I applaud the UT Supreme Court for attempting to problem-solve in a creative and responsible way.
The statement accompanying the proposed order states: “Applicants admitted without taking the Bar Examination will need to . . . have graduated within the last year from an ABA-accredited law school that recorded a 2019 first-time taker bar examination passing rate of 86% (the pass rate of first time takers of the Utah Bar Examination in
2019) . . .”
Praise, Concern and an Addition:
The approach taken in this order to accomodate those who would have taken the bar is novel and shows significant compassion for the circumstances of those who have invested three years only to graduate in the midst of so much uncertainty. I welcome this approach and I hope it is helpful in bringing many new lawyers into the bar. I would even welcome the Court’s consideration of making this approach available as a possible replacement to the bar exam. Memorizing information and regurgitating it on a test is far less effective than being trained for several months by a qualifying attorney.
One concern I have is that some hopeful graduates from law schools without a high percentage passing rate (86% or better) may be left out. If a school is ABA accredited, it should be able to prepare students for the rigors of law practice. I would ask that the passing rate requirement be removed from the order. Some might argue this would allow some into the bar that never would have made it in otherwise. I would counter that I have met several attorneys in the Utah Bar that did pass the bar but are presently making significant errors due to their lack of on the job training.
I believe the training described in this order has the potential to produce better new attorneys than the bar exam ever did. I would also recommend that a specific set of experiences be required to be included in the training to set the new attorney up in a stable frame of practice. This might be similar to the steps required to practice medicine. Organizations patterned after the Inns of Court could exist for the purpose of guiding a new graduate to “master” status. A wide range of required experiences might also help the new attorney to identify sooner where they are most comfortable in the practice of law.
“Some might argue this would allow some into the bar that never would have made it in otherwise.”
Also, so would the 86% rule, which let’s in 14% of people who would have failed. Unjust.
I concur in the concern over the pass rate of the Bar for law schools. As long as the law school is ABA accredited, I think the applicant should be allowed to participate in the new admission process. There are some lawyers in dire need of funding that cannot attend the U of U or better known schools. They are recruited and offered full scholarship by ABA accredited law schools that offer them a full scholarship and allow them to attend a lower rated but ABA accredited law school. I urge the Court to consider not making a law school bar exam history an either/or but rather consider all applicants from ABA accredited law schools regardless of the school’s bar exam pass rate.
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.
This is a reasonable proposal. Eventually all should be required to pass the bar exam.
I agree. This is one of two concerns I have with the proposal. My other concern is with the ambiguous definition of what bar passage rate is used (whether Utah’s or any state’s), and if only the Utah bar exam passage rate is used, the effect that has on applicants from schools with few students taking the Utah bar.
For what it is worth, I do not agree with this. Just postpone the exam. There are dues that all new attorneys must pay, and the test is one of them. It is a necessary weed out procedure (knowledge and stress test) and a right of passage.
Many people graduate from law school and cannot past a bar exam on the first try. I went to school with many of them who coasted on the curve and failed the exam. There are also areas of the Bar exam which are NOT taught in all law schools and must be prepared for on their own time. Tradition should mean something. OUR hard work to get licensed should mean something. This too (virus) will pass, and will in the near future.
The applicants are going to “practice” while waiting for the bar results anyway, so I do not agree that this time should give them a pass on the easy track to licensure. Waiting a few months until the next test is not unreasonable.
Question: How do you propose those from the graduating class of 2020 who are forced to postpone taking the bar due to the pandemic, given a temporary license to work for a year and then forced to take the bar, do so while working full-time? Seems like we are getting the short end of the stick all around. Pay for in-person tuition, finish last semester on zoom. WE get NO graduation ceremony, forced to post-pone employment, have to figure out other means to sustain living since most of us had a plan to cover out living expenses until we take the bar. Be subjected to judgment while living with the anxieties of COVID and Law school.
Great to see the notion of tradition is more important than the idea of equality and equity. We are living through a pandemic that most have never had to while in the midst of the most stressful transitions in our lives and those of us who have a family and small children to sustain (like myself) are being hit at a double edge sword but sure lets do it because its a right of passage. By the way there are people who will be dealing with burying loved ones thrown into this equation, so lets combine grief into the equation.
NONE OF THIS TRADITIONAL OR NORMAL. NO OTHER GRADUATING CLASSS HAS HAD TO GO THROUGH A PANDEMIC WHILE TRYING TO FINISH LAW SCHOOL AND PREP FOR THE BAR. YOU WILL NEVER KNOW ANXIETY UNTIL YOU HAVE TO WORRY ABOUT RISKING YOUR LIFE TO TAKE A TEST WITH HUNDREDS IT NOT A THOUSAND OTHER PEOPLE OR LOSE YOUR JOB YOU WORKED SO HARD TO SECURE.
I agree. My son-in-law was to graduate from the U of U law school. He and my daughter have been living in student housing for almost six years. They are raising my two little grandchildren while trying to pay the bills, study, work part time, etc. Enough is enough! Please let him work under a experienced attorney to satisfy the Bar’s requirement. He is a “A” student and should not have to study full time for two months, at an unknown later date, in order to practice law.
He went to law school knowing that he was going to be doing all of these things (raising your grandkids, accruing debt, etc.) INCLUDING studying for two months to take the bar exam. Give me a break.
Totally agree. This proposal is so ridiculous.
What he didn’t plan for was taking two months off work, at a later date, to take the bar exam. He is in the same financial situation as other students who have commented. They have enough money to last them through the July Bar exam, and not beyond. How is he going to leave work to study for and take the exam at a future, unknown date? He can’t afford to do that, so give him a break!
If your son-in-law is actually an A student, he would have no problem arranging time off work with his firm to take the bar at a later date. I’m sorry to inform you that your son-in-law is a mediocre, at best, student despite whatever he has told you.
Well, unless you know for sure that this fella would’ve failed the exam, you have no business commenting.
Depriving someone from increasing their value and earning capacity is wrong. Plain and simple. If he can’t do the job, then he can’t do the job. I’m sure that if Utah legal community is truly elite, the ones who can’t meet those high standards will be weeded out anyway.
The Bar exam guarantees nothing and taking it is not a true indicator of future job performance.
Your hard work still means something.
However, it’s a bit rich of you to use that to deprive others from progressing in their lives because you feel like you’re no longer special.
I’m sure there were many people who passed the Bar exam that also coasted during law school. Those two aren’t mutually exclusive and you know it.
I hope you understand that not everyone can afford to wait around for the next Bar exam. Some people have been making financial and familiar sacrifices all through law school and possibly before that. Pushing their earning capacity back another 6 months is beyond unfair and I find it insulting for you to say it not unreasonable. When it’s not your life, you need to stay quiet.
I would like to second concerns raised by Kyle Jones related to the bar passage rates in Section I.b.1. More clear guidance is needed on how the first time bar passage rate is being determined, such as based on passage of the Utah bar specifically or any bar nationally.
I concur. When I took the Utah bar exam, only two others from my school (Duke U.) took it at the same time. We all passed, but had just one of us not passed, would this have disqualified all students from using this rule, despite my school’s 97% pass rate in North Carolina?
I oppose this proposed emergency modification of the Utah Supreme Court Rules.
The Bar Exam is a measure of MINIMUM competence. My PREPARATION for the Arizona Bar Exam and the Utah Bar Exam (approaching 30 years ago) was so intense and effective that to this day I recall many of the things I studied. This is particularly true in respect to legal issues that are not in my area of expertise. Thus, not only taking the Bar Exam, but also studying for the Bar Exam is part of the process that cements important knowledge in minds of law students that become Utah lawyers.
While I understand the uncertainty those who have registered to take the Bar Exam face, the Utah Bar could employ technology to safely conduct the Bar Exam with appropriate social distancing, perhaps even allowing the students to take the Bar Exam remotely in their homes. While administering the Bar Exam remotely would introduce challenges, including the possibility of dishonesty by those in taking the Bar Exam (i.e., cheating), those risks are justified given the circumstances. It’s better than no minimum competency test. We will get through the Covid-19 crisis. All of us are figuring out how to work remotely for a season. The Utah Supreme Court can ask the Utah Bar to determine a reasonable way to administer the test remotely. Alternatively, the Utah Supreme Court could grant those registered to take the Utah Bar Exam a temporary license for a period of time, as New Jersey and Indiana have done. Requiring those registered to take the Bar Exam to diligently study for and take a Bar Exam — during the Covid-19 crisis remotely or after the Covid-19 crisis traditionally– will benefit the legal profession, benefit the attorney taking the Bar Exam for years, if not decades, and benefit their future clients. Utah should lead the way by creatively solving this issue and figuring out a reasonable way to remotely test minimum competency. The current proposal simply pushes the “easy” button and gives those registered for the Bar Exam a pass without determining if they actually do. This is inconsistent with the history of admission to the Utah Bar.
When it defines qualification of supervising attorney, it states “a minimum of 7 years… in any US state OR territory.” How does this deal with students who are going to work for a firm abroad that has a U.S license but whose supervising attorneys do not have 7 years of working in the United States? Is this ruling out anyone who is planning on going to work for a firm abroad?
May qualified graduates who choose to forego taking a future bar at least have their $150 “Laptop Application Fee” refunded?
Point 14 in the “Acknowledgement of Participation in Laptop Program” form that we signed says the $150 fee for ExamSoft is non-refundable. Well, if the Bar is going to keep my $150 fee, then I better still be provided with my ExamSoft! I paid top dollar for that, so either give us the ExamSoft we so readily deserve or, in the alternative, give us our $150 back.
You know it’s strange times when students beg for examsoft access.
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 second this concern. Students doing judicial clerkships (especially federal) for judges barred in other states should be allowed to count those hours toward the 360-hour requirement.
Good for the Utah Supreme Court. Allowing ABA-approved law school graduates to practice law without passing the bar exam is the right thing to do.
In fact, the Utah Supreme Court should take this opportunity to do away with the bar exam requirement entirely. The bar exam is a relic of protectionist-era state bureaucracies that has very little predictive power regarding how well lawyers will serve their clients.
Thus, it does not protect the interests of legal consumers to any appreciable degree.
The bar exam does, however, delay, by months, a graduate’s, or an out-of-state lawyer’s, ability to earn money, provide for his or her family, and serve the people of Utah. This decreases the supply of attorneys in the Utah market, thereby increasing price to consumers.
The bar exam should go the way of all the earth.
I agree with this wholeheartedly.
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.
If they’ve been able to do the work required for over a year, you’re going to make them take an exam that proves they can do the work? Genius. I’m sure that won’t end in disaster.
You’re simply making statements without any substance.
“A total exemption from taking the Utah Bar exam is not in the best interest of the public.”
How so? Is allowing someone to practice because they passed the exam in the best interest of the public? I don’t know. Every single attorney I’ve ever met has mentioned that the Bar is just a formality. We all know there’s attorneys practicing today who have done questionable things, and they somehow remain licensed. So lets stop it with this nonsense.
“I believe this will stigmatize these graduates as lawyers who never took or passed the Bar Examination.”
Again… how so? I would hope that attorneys are beyond petty jealousies. If the graduates can do the work, they can do the work. Passing the exam doesn’t command respect, being a good attorney commands respect.
The entire basis of everything the legal profession stands for isn’t exam-taking. It’s about honesty, respect, integrity. The Utah Bar itself mentions in its mission statement:
“The lawyers of the Utah State Bar serve the public and legal profession with excellence, civility, and integrity.”
If you are an attorney who will treat these graduates differently because they did not take or pass the exam, you do not embody the mission statement of the Utah Bar. End of story.
I support the Court’s prioritization of safety, and I’m deeply relieved that the Court is taking important steps in this area. However, the requirement that the applicant’s law school have at least an 86% first time pass rate would disqualify many respected, accredited law schools unnecessarily. Notably, this requirement would disqualify UCLA (currently ranked 15th nationwide), and would probably disqualify all applicants from California law schools besides Stanford and UC-Berkeley.
Additionally, this requirement would disproportionately burden low-income applicants who are more likely to attend schools with low bar passage rates, often for merit scholarships. The requirement should be substantially lowered, if not outright eliminated because of its discriminatory potential for low-income and underrepresented minority applicants. I also agree with Justin Worthington’s comment that the proposed modification should extend to all applicants, regardless of whether they’ve previously taken the bar.
I believe that the supervision requirements are sufficient.
Wholeheartedly agree with the points raised here.
Hear, hear! I strongly agree with this comment. The proposed rule is a fantastic, compassionate response to an extremely, difficult situation. However, it inadvertently may make matters much worse for some applicants (I know the Court did not intend this and I recognize where we’re at in the process: the rule is proposed and then is opened to comments to make it even better).
The proposed rule takes away from several, otherwise-qualified applicants any chance to be admitted to the Bar now. Before the rule, they could have at least tried to take the exam while staying as safe as possible. Now, they cannot take the exam and cannot get special admittance. They just simply cannot work as lawyers in Utah for the the near future, which will create for them even worse circumstances than just trying to take the exam during the pandemic.
Sara has done a great job explaining why the 86% pass rate rule needs to be tweaked. We also need to consider lawyers from other states seeking admission in Utah (they are clearly qualified, having been admitted to and practiced in other states), and other applicants who most likely would have passed had they been able to take the exam.
The fact is that if the Bar exam is not offered and this special admittance is not expanded, this Rule will put several applicants in a worse position than just having to face taking the Bar exam during the COVID-19 pandemic. Graduates and attorneys from other states moving to Utah, and others who are already in Utah, are most likely doing so for necessary reasons, not on whims. So, it’s not as if they can just move or stay somewhere else. They will likely be stuck in Utah, unable to practice here. Likewise, for many, this will put them in extreme financial hardship: many students graduate with so much student loan debt that an attorney salary is the only real chance to have any chance of paying minimum monthly payments and having anything left after to survive (and as of now, I don’t think all lenders are suspending payments or as long as a graduate under this rule would likely need) and it’s not realistic to think graduates or even practicing attorneys could transition into another type of work and make a salary even close to what they were/would be making as attorneys. On top of that, we are heading into unprecedented economic times: will there even be jobs for them? They also face significant emotional and mental harm in having to put their lives on hold, especially through no fault of their own. Even if it’s just waiting for the February exam, that delay of over six months could have enormous, negative consequences. When these applicants would likely have passed the exam were they able to take it, the rule should allow them some way to gain admittance now too.
Again, I am so grateful the Court has proposed this rule. It’s an excellent idea. I just wanted to kindly put in this thought to make sure the rule helps all the people it should and that it doesn’t accidentally make matters worse.
I have noticed that many of the people claiming that the bar exam is needed to weed out incompetent would be attorneys have not pointed to any evidence to justify that statement. Many seem to see it as a necessary hazing or rite of passage, without much else. At best, they’ve claimed that it tests people on many areas of the law. But the reality is that it’s malpractice to rely on memory to the extent that the bar requires. In case the Court finds this helpful, the National Conference of Bar Examiners surveyed many stakeholders in the legal community such as judges and law school deans, and found that these stakeholders did not believe that the bar correlated to law practice at all, and they believed that it was not an effective measure of competency. And of course Wisconsin has successfully implemented diploma privilege. I hope the Court will not base its decision on some practitioners’ unsupported fears and personal feelings.
I completely agree with the points raised here.
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 strongly agree. In addition, the NCBE’s own study showed that law school deans, judges, and practitioners did not believe that the bar exam was a good measure of competence to practice law at all. The bar exam favors rote memorization (a concern that came up repeatedly in the NCBE’s study), and it’s malpractice to try to just memorize everything.
I graduated from law school in 2017, however, I did not take the bar exam in the state that I relocated to after graduation. I started a family and a new career from an opportunity that came to me out of nowhere. I was intending to take the bar exam this summer as I eyeball a possible move to a new department in my firm where I would be able to utilize my education.
I do not feel that earlier graduates should be punished simply because we did not take the bar exam immediately following law school graduation, or that individuals that failed the bar exam previously should be excluded from being able to take part in supervised admission. Supervised practice would allow a real-world chance to not only lean the ways of the legal profession, but also do it in a way where the individual would be able to focus on actually practicing and not memorizing law that doesn’t apply to an area they will never practice.
I feel a longer period of supervision should be added, and the graduation time period restriction removed.
For the record, “an early graduate of the Class of 2019” includes all December 2018 graduates.
Proposed Comment and Recommendation for Licensed Attorney Applicants:
The Proposed Order (“PO”) entirely fails to address (perhaps intentionally) those attorneys licensed in other surrounding states (such as California) who are registered to take the Bar examination in July, who are not “Recent Graduates” as defined in the PO, but do otherwise meet the policy goals of the PO if granted licensure. Many seasoned attorneys, including myself, who could otherwise provide immediate professional representation to those who otherwise may be unrepresented or underserved, would likely be prohibited in obtaining licensure until 2021 based on the proposals of the PO. While I cannot say how many registrants meet the licensed attorney registrant criteria besides myself, this PO does not address the obvious issue–granting licenses to new attorneys and forcing experienced attorney registrants to wait until 2021 (or later) works against the stated policy goal(s) of the PO in providing adequate representation for citizens of Utah, and addressing financial burdens the applicant’s have.
By not addressing licensed registrants, the PO assumes the licensed attorney registrant doesn’t hold the same financial burden as the new graduate. However, licensed attorneys living in Utah, who are not licensed to practice here yet, actually hold a greater financial burden, since they must either return to their state to practice their craft, or obtain work outside of the legal profession until such a time they can obtain licensure (which inherently, creates substantial financial detriment, and defeats the policy goal of the PO). Delaying the ability to obtain licensure in Utah may result in the applicant’s inability to adequately reside in this state, and may entirely eliminate the ability for otherwise capable and qualified attorneys to obtain licensure in Utah and practice here.
One must assume that there are not many licensed attorney registrants for this bar, but that only provides greater justification for immediate licensure of attorney registrants willing and able to immediately offer quality professional services to Utah citizens. This result would fully satisfy the policy goal of the PO.
An applicant who is licensed in another state, with a strong class standing from an ABA accredited law school, a first time pass rate of their state bar and years of legal experience would likely be able to provide greater immediate legal representation for Utah citizens, in comparison to a newly graduated law student. There is no book that can adequately teach a law student how to conduct a jury trial, defend a deposition or negotiate a settlement, better than actual experience. As such, I recommend the PO include an additional category, separate from the “Recent Graduates” section, for currently licensed attorneys who are registered to take the July 2020 bar examination. Criteria for diploma admission in this regard may also include a substitution of hours of apprenticeship with years of service. At the very least, they should be afforded the opportunity for licensure under the proposed mentorship method and be allowed to offer immediate relief to Utah citizens from the Covid-19 pandemic. Any other alternative to delaying licensure does not meet the policy goals of the PO, as written. Thank you.
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’d like to add another proposal for balancing the concerns in this situation: administer the bar exam in an essay only format, completely remotely. Take home, open-book law school exams are very common. They are no easier than closed book exams, because the quality and detail expectation increases.
The vast majority of exam takers already choose to write the essay portion via a laptop. The handful of people who choose to handwrite the exam could still be accommodated and spaced appropriately at the convention center. This approach requires a threshold showing of competence from each applicant, while following social distancing practices.
Section I.b1 should be revised to take into account a student’s academic performance at an ABA-approved law school rather than the law schools first-time bar passage rate. Adding to a previous comment, some of the affected individuals might have attended school outside of Utah (i.e. California or New York) where the first-time passage rate is significantly lower. Additionally, that individual may have attended a smaller school where there were few bar exam takers in 2019.
I agree. Class ranking may prove more informative than the school’s pass rate. I know I studied harder than most of my colleagues and passed the nation’s hardest bar exam the first time. That should say more about me as an applicant than my schools passage rate.
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.
Agreed! I’m glad to see there are many in similar predicaments, that the proposed order doesn’t address.
I wholeheartedly agree with this comment. I commend the Court for taking steps to provide a solution in such a difficult time. However, I believe that the rule should be expanded to others. This should include those who have taken, passed and are in good standing with another state bar. I have also applied for the July bar and was previously admitted in California. Due to circumstances I was not eligible to take the Utah Bar until 2020. I think that extending this rule to those eligible to take the bar in 2020 or doing a take home examination would be preferable.
If this is used only as a temporary measure during the Corona Virus pandemic, it may well be a good idea. Still, I do have reservations about it. The proposed Order would allow any student who graduates from an accredited institution having a historical 86-percent graduation rate to be admitted to the practice of law without taking the bar exam. But statistically, doesn’t that mean that 14 percent of those admitted to practice will likely not be qualified? It is no answer to say that those 14 percent will be weeded out by court sanctions after they have committed an act of malpractice, because innocent clients will be no doubt be injured in that process. I hope our Supreme Court seriously considers this issue before it issues the proposed Order.
Back in the day, the bar exam consisted of (a) the multi-state bar exam which dealt broadly with legal principles in the common law tradition; and (b) essay questions drafted by representatives of the Utah State Bar to specifically address questions of state law. It is my impression that the great majority of people taking the exam did manage to pass it and, obviously, you’re right to suggest that merely passing the test does not necessarily say much about one’s ability to be an effective legal advocate. Still, I question whether it is wise to abandon altogether the testing requirement, because today’s law schools in Utah generally have a bias in insuring that their students graduate — sometimes to the point of neglecting their actual performance. (The Legislature does not look kindly on failed law students and, when there are too many of those, the Legislature questions whether they should continue to allocate funding to the law school.) The Bar exam thus acts as one form of testing the degree to which those taking it have a basic understanding of the law. That seems to me a very good thing indeed.
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 graduation within a year criteria is too restrictive. I infer that the requirement is to filter out applicants who may be, for lack of a better term, taking advantage of the COVID situation so that they do not need to take the bar examination. The requirement that the applicant have already registered for the bar by the April 1 deadline more than accounts for this, as does the requirement that the applicant have not already failed a bar examination.
As others have pointed out, these proposals give little to no consideration for judicial law clerks or other non-traditional applicants. An individual in a two-year clerkship who graduated from a qualifying law school, who planned to take the bar exam upon coming back to the state to practice, must still take the bar examination (though at some uncertain date in the future), while a new graduate with no comparable experience does not have to take the exam.
The requirement should simply be whether a student has graduated from an accredited law school and has not failed a bar examination. This would accomplish the goals that the proposed order is trying to meet, while also reducing harm to non-traditional applicants.
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.
this is a reasonable proposal.
I agree, this seems reasonable.
I think they should be required to take and pass the bar once the crisis is over. I also think whatever leeway is extended to new graduates should be extended to people who have passed the bar in other jurisdictions.
I also concur with Mr. Pieper’s proposal.
As a member of the Utah State Bar, I oppose this proposed rule as currently written. I suggest other alternatives in response to the current pandemic. I suggest granting a temporary license, 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. Another option would be to require applicants to take the written component of the July 2020 bar exam via computer with some added protections for integrity of the exam. The July 2020 bar exam could also be rescheduled for a late date, such as September 2020. If the bar exam requirement is waived, the number of hours working under the supervision of a lawyer in the proposed rule should definitely be increased. If adopted, this rule will harm the public by admitting some individuals who lack the minimum competency to practice law. I am also admitted as a lawyer in Minnesota and frequently interacted with lawyers admitted by the diploma privilege in Wisconsin. I found that some lawyers in Wisconsin lack basic competency.
This proposal provides a permanent solution to a temporary problem. The bar exam demonstrates a basic level of competence that graduating from law school does not. Fourteen percent of those admitted under its terms would otherwise be unqualified to practice law in Utah. Allowing such is a derogation of the Utah Supreme Court’s mandate to regulate the practice of law.
There is still time to find a work-around for the exam. For example, use licensed attorneys as proctors during remote administration. If an attorney was willing to supervise a graduate for 360 hours, it seems likely that the attorney would be willing to proctor a two day test. Enabling remote administration as an option may reduce the number of those needing traditional testing opportunities to a number which can be facilitated in a traditional environment through social distancing and other measures.
We have the means and technology to successfully administer the exam. It’s wrong to simply give up and deal with this temporary problem by granting full, permanent licensure.
Graduating from law school has never been equal to becoming a lawyer. Only passing the bar exam can grant that privilege.
Enabling full licensure for simply graduating from law school devalues the entire process.
Glen, I appreciate your comment but question why graduating from law school would suggest competence to practice law. To suggest that the bar is the only way for a lawyer to become competent in the law is to suggest that someone may cram for a test for two to three months (as most students do for the bar exam) and become a qualified lawyer. Such a suggestion is an insult to the legal profession and to law schools.
While some states do not require law school Utah has created this requirement. There is clear value in law school which does give students the knowledge needed to practice as attorneys.
In the past neither law school nor a bar were required to become a lawyer. Instead, it is worth noting that individuals would work under a supervising attorney until they became qualified for individual practice. Lincoln, for example, never attended law school nor took the bar, but was an exemplary practicing attorney. I do not believe all 2020 graduates are equivalent to Lincoln, but I use him as an example that the bar does not necessarily correlate with the ability to practice law well. This year’s graduates have attended law school and will work under a supervised attorney, going above the past requirements to become a lawyer.
Finally, although a “temporary” problem, the uncertainty of the length of this problem is unknown. To prevent hard-working graduates from beginning their careers simply to preserve the tradition of the bar exam violates principals of equity.
While I understand the Bar’s desire to enact an alternative to the July 2020 exam, permanently exempting students from taking it should not be a viable option. I completely agree with the other posters who said that the Bar Exam is a great equalizer; none of us enjoyed taking the Bar but passing demonstrates that we all have a base level of knowledge in a wide variety of legal subjects that we did not necessarily learn in law school. In speaking to redundancy, I fail to see how this proposal differs from the internships/externships in which many graduating students inevitably participated last summer.
Many of us worked whilst we studied for the Bar and then awaited our test results, so these students can do the same whilst they await the rescheduled Bar. I did not see any requirements that the students must work with a supervising attorney in the public interest sector so I’m not quite sure that there is as dire a need for civil litigators when the courts are closed as the Bar leadership is implying.
While I understand that others have had to wait for test results, the uncertainty of the timeline is the issue here. Previous students knew they would receive their bar results within a few months. The delay here is unknown. It is more reasonable for the Utah bar to take action to prevent graduates from unnecessary career delays rather than wait around and hope that the bar could be administered soon. The bar is not so important as to put individuals out of work.
Additionally, to suggest the bar is the only way to prove competence to practice law is to suggest an individual could cram for a test for only a few months (as most students do for the bar) and become a qualified attorney. This is an insult to the legal profession and to law schools. The supervising attorney requirements differ significantly from externships as the hours required will be longer and students will have already earned a degree.
The proposed rule should not be adopted. As you can see by many of the comments, the Utah Supreme Court has opened pandora’s box, and unnecessarily so. If the bar exam cannot be administered in July then allow all applicants to practice under the third year practice rule until they can pass the bar exam. The proposed rule will lead to lawsuits against the State and the bar, and probably the Utah Supreme Court. The proposed Rule is likely unconstitutional in that it is arbitrary and capricious in selection, application, and scope. The proposed Rule is not a reasonable solution that is even remotely close to status quo. I think it is an irresponsibly drafted rule that goes way too far. Please do not undermine the practice of law in Utah.
An interim allowance of supervised practice for a short period with a deferral of the Exam seems far more reasonable and pragmatic. It would achieve all practical objectives while maintaining strict licensing standards.
With my one reservation noted below, I’m behind this proposal 100%, and I think it’s worth considering whether to make this a permanent change to admission to the Bar. The bar exam is impractical and out of pace with the demands of practicing law (at least it was when I took it, and at least based on how my career has unfolded). I mean, how many scenarios do we face where we have to give a detailed analysis of a problem without any ability to look at the code, rules, case law, etc…? That would probably be malpractice, unless the lawyer is very much up to speed on the subject. And even then, s/he still needs to research things out periodically to make sure nothing has changed. I fail to see how the skillset that helps someone pass the bar exam enables that person to be a good attorney. I’m all for barriers to entry, but the barriers the Court employs should help improve the performance of the bar membership. I don’t understand how a time-pressured multiple choice test or writing contest helps improve the Bar’s overall performance, particularly when one considers the subjects the bar exam tests, compared to the proportion of licensed of attorneys who don’t litigate. An apprenticeship-type program, which is how I interpret this proposal, is vastly superior to the bar exam.
This also has the fringe benefit to nascent attorneys of not saddling themselves with even more debt. Sorry, but not sorry, Barbri. That’s nothing personal and is not to denigrate the value of what bar prep outfits bring to the table, but student debt harms the practice.
On the subject of money, the proposed order doesn’t state one way or the other if it contemplates a Qualified Recent Law Graduate being paid for time spent toward the 360 hour requirement, and/or billing that time to a client. I hope the idea is to allow them to start earning/billing because the sooner they can start chipping away at debt, the better off they are, which is ultimately better for clients.
Relatedly, can QRLGs participate in fee-sharing agreements with the Supervising Attorney for work done on contingency cases without violating rule 1.5(e)?
My reservation: It is a significant oversight not to include judicial clerkships. For one, not including clerkship time as part of Supervised Practice significantly underestimates the value of clerkships to the clerk. Speaking from my own experience, I learned more in my first year than in the several years that followed. Two, and on a more practical level, failing to include that provides a substantial disincentive to accepting a clerkship. It could throw a wet blanket on recruiting efforts.
I believe the requirement to have applied by April 1, 2020 does not take into account the situations of graduates who had applied to take the bar exam in another jurisdiction due to a job offer, which now may not be available, where the student has strong ties to Utah and would have practiced in Utah absent the now non-existent job offer. I would propose an alternative requirement of the deadline, allowing for late applications if the applicant can show strong ties to the state of Utah demonstrated by familial ties, previous educational attendance, etc. If there are concerns the attorney will seek reciprocity in other jurisdictions after the crisis, exempt the provisional licencing from being verified for reciprocity purposes. It would be nice to have the option to return home and have a realistic path to practicing in the near future after graduating from a top 10 law school.
Similar situation, but I am a BYU Law soon-to-be grad and near lifetime Utah resident that did not apply for the Utah bar exam as I am moving to a new state after graduation for my husband’s work. While I planned to take the bar exam in that state, we will be returning to Utah soon and licensing in either state would help accomplish my goals. As is, I will be moving in the midst of the pandemic to a place with no school alumni contacts there or other local basis for my professional network, other than church which will not be meeting and local bar events which will not be taking place due to the pandemic. I had hoped to establish a network during my summer of bar prep, but with stay at home orders in place until who knows when this is now less feasible, making my job hunting prospects much more grim. Additionally, my childcare situation has drastically changed and my ability to prepare for the bar exam, whenever it is offered, impacted.
Meanwhile, working remotely for my network of Utah state barred attorneys who are practicing in Utah would be much more feasible and the Proposed Order a huge blessing. As the Order is written the 360 hours could be spread out over the rest of the year whereas my bar preparations would need to occur in a much more condensed timeline, making this Proposed Order a much more feasible path to licensure than my alternatives. Of course, but for the April 1 application deadline.
If the deadline is extended, previous Utah state residency could be required of applicants applying after April 1 and used as a metric to keep out the feared flood of out of state applicants hoping to game the system. The bar application is already equipped to collect past residences, so using past residences would not mean altering the application in any way. Utah state resident history would create a different clearcut determinant of eligibility to sit for the bar exam. If this is deemed too prejudicial, then I ask the Court to acknowledge that 360 hours of supervised practice with a licensed Utah attorney is itself enough of a deterrent to keep a flood of applicants out.
I cannot speak on behalf of the rest of my class, but I appreciate the compassion and careful consideration clearly evident in the Proposed Order. Even though I do not fall under the Proposed Order’s reach, I am very grateful that the Court is trying to ease the burdens of my peers.
I agree with the majority of your comment, Madison, but also believe that it is important to account for students without previous Utah residence. I, for instance, have never lived in a state for more than five years and have a substantial interest in starting practice in Utah due to my graduation from a Utah law school, having received the majority of my legal experience from Utah firms, and having built a professional network in Utah. I’m not sure of what alternative there is to a residential requirement in order to show that students are not gaming the system. I simply think it is necessary to consider those students who came to Utah for law school without prior Utah residence.
I agree! Living in Utah and having lived in Utah, whether or not for school, should be enough to show a demonstrated interest in Utah itself and not just licensure in general. Those who have never lived in Utah would be expected to sit for a Utah bar exam when offered, but those who can demonstrate a present interest in the state should be equally considered as candidates for diploma privilege as their peers who met the April 1 deadline.
Is there a reason you didn’t already apply for the Utah bar if you were planning on working in Utah this year? Why do you need this special accommodation if you are not trying to game the system?
Taylor, thank you for your question. I really think this will help clarify to the bar why students are in need of accommodations. Due to COVID-19 my original future plans were to leave the state, now, those plans will likely have to change. Had I known of the future change in plans then I would have applied for the bar. This is why I personally feel as if the application period should be reopened.
Completely agree. I am in the same situation and would prefer the application for the bar be reopened.
I concur. Where a graduate planned to take the UBE in another state and that exam got cancelled, that student should be able to apply to the Utah bar after the April 1 deadline if they can show strong ties to Utah. The UBE was not supposed to be tethered to any state; our scores were to be transferable for some 3-5 years. A student’s sitting for the UBE in the state were they attended law school may have more to do with where they currently were leasing an apartment than where they meant to practice law. Such was the case for me.
I lived in Utah more than 15 years. I am a University of Utah graduate. My family and only job opportunity are in Utah. My ABA accredited school meets the proposed bar pass requirement.
I concur with the above suggested exception to the April 1 filing deadline, where all other requirements are met and strong ties to Utah can be shown.
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.
I appreciated your comment since it addressed the same issues I had with the proposed order. The definitions of the class are far too restrictive and it’s scope seems narrowly tailored to serve the two major institutions of law here in Utah. However, the policy behind the order would argue that pedigree isn’t the point. My law school has given legal careers to Presidents and prominent attorneys, yet we are not a UT governed school, and under different criteria. That said, I also have years of federal and state practice as an attorney in CA. So hard to say the new grad from BYU knows more about being an attorney than me. Thanks for the commentary!
I have been practicing law in Utah for over ten years, and I sit on the Bar’s Character and Fitness Committee.
In practicing law and in the committee I sit on, I see the difficulty that new lawyers go through. The worse their performance at law school and on the bar exam, the more they struggle. Their mental health suffers, the client suffers, and the legal system suffers. Waiving the exam will put students who would not have been able to pass into a terrible position as practitioners. This then impacts their employers and clients, too.
Rather than waive the bar exam for the current law school graduates, could the third year practice rule be extended for them? Giving them an additional year to practice under that rule would provide them with oversight and give them more experience. They could then take the bar in 2021. Alternatively, perhaps the bar exam could proceed in a large venue where there is sufficient space to spread the examinees out, such as the Salt Palace.
Our mentorship program has mentors but the 360 hours of supervision requirement is asking too much from these mentors. We already ask a lot of these volunteers. During this pandemic, asking for more volunteer hours when their businesses are likely financially impacted seems unfair.
Moreover, during the last economic downturn, a number of graduates started their own firms because there were no legal jobs to be had. We find ourselves in another economic downturn where even the largest firms are reducing pay and furloughing employees. There is certainly very little, if any, hiring going on right now. It does not serve the public well to be represented by a new graduate who has not passed the bar exam. The supervision requirement may work where a graduate is working at a firm or company where the graduate would regularly have supervision anyway, but for a graduate without such a job, the supervision will likely not be adequate. This rule would allow graduates who would not pass the bar exam to practice law without demonstrating the basic, essential competence required.
The bar exam guarantees basic proficiency in a number of different areas lawyers come across in practice. However, not every student takes each of those subjects in law school. The Court’s Statement says that Wisconsin’s diploma privilege ” is premised on the idea that the material the Bar Examination covers is also taught in law school, and a diploma from a well-regarded law school is a sufficient indication of an applicant’s competence . . . .” However, while the courses covering bar exam topics may be taught in law school, they are not necessarily taken. The bar exam guarantees a basic competence with several subjects in a way that law school does not.
While I am sympathetic to the situation of the soon-to-be graduates, we also have a duty to protect the public, and allowing graduates to practice without passing the bar exam puts the public at risk.
Please consider an alternative that would require passing the bar exam.
I second everything in this comment. We can find a balance that temporarily relieves recent graduates from having to take the July Bar exam, but still require a bar exam to demonstrate professional competence within the next year. Would we want a doctor that did not pass the medical licensing exam? Would be want a pilot that has not passed the licensing test to fly our commercial plane? This would also address the many comments that show how this change penalizes the “bad” versus “good” law schools versus focusing on the actual performance of the law students. We can treat everyone equally and all would be required to show the basic knowledge requirements that all lawyers had to learn.
I agree my Mr. Barnhill’s comments and suggestions. I passed the bar exam and was admitted to practice in Colorado in 1981. I took the Utah bar exam in February 2020. The results were released Friday. By my count, 30 of the 79 people taking the test failed. While I considered the bar exam requirement burdensome and maybe many of the 30 people who did not pass February’s test are qualified to practice law, I believe it is a good tool to limit the practice of law to qualified individuals.
The bar exam tests your knowledge of a wide range of areas of law as well as your competency to analyze and write. Every attorney should have that basic knowledge and competency. It is also measures your ability to commit to a long term project requiring 500 to 600 hours of study over many months and to pass a very stressful endurance test at the end. As someone who has practiced law from decades, preventing individuals who cannot handle the stress from practicing law is very important for the protection of the public and also the mental health of those individuals who do not pass.
Rather than waiving the bar exam for the current law school graduates, the third year practice rule should be extended. Giving them an additional year to practice under that rule would provide them with oversight and give them more experience. They could then take the bar in 2021. Alternatively, the bar exam could proceed in a large venue where there is sufficient space to spread the examinees out, such as the Salt Palace Convention Center, which advertises over 700,00 square feet of exhibit and meeting room space.
Thank you for the thoughtful reply Mike. I do have a comment though, your proposal doesn’t adequately address licensed attorneys seeking to take the Bar and begin immediate work in UT. Employers will not want to hire a licensed elsewhere, “third year extension” attorney. That will only compound the potential economic struggles the legal field is likely to endure for the next couple of years. It stands to reason if one could pass the bar in a neighboring state (or in CA like myself which holds the claim to hardest bar in the nation) then we should be granted some form of apprenticeship to licensure.
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.
Before jumping to not requiring the Bar for a specific group of applicants, I would suggest coming up with some other solutions. I don’t think cancelling the Bar exam is the only option.
Here are a few ideas:
Can we bump the Bar back a few weeks or months? Can we use Examsoft and maybe do it remotely- that’s the program used for taking the Bar exam anyways? Can we make sure that applicants sit more than 6 feet apart while taking the Bar? Can we stagger the case and maybe administer it to smaller groups, have 1/3 take the test at a time?
I think this is a drastic change to the Utah Bar to go straight to waiving the Bar exam for a specific group. This could also hurt clients and the practice of Bar in Utah.
Some law students got into law school without even taking the LSAT due to recent changes in law school acceptance requirements. I think this is a quick decision that could be handled with other solutions. I think it’s harmful to have attorneys barred without possibly ever taking the LSAT or the Bar exam.
This. The Bar should figure out ways to accommodate the testing itself rather than reinvent admission requirements.
I commend the Supreme Court for its Order for Temporary Amendments to Bar Admission Procedures During COVID-19 Outbreak (the “Proposed Order”). The Proposed Order takes a pragmatic approach to the difficult circumstances created by the COVID-19 pandemic by allowing recent graduates to practice law and begin their legal careers without endangering the health and safety of test takers.
But, as others have noted, the Proposed Order excludes experienced attorneys who have already passed the bar exam of another jurisdiction and have multiple years of legal experience practicing law in other federal and state jurisdictions. Specifically, the Proposed Order excludes experienced attorneys who otherwise meet the requirements under Rule 14-705 for “Admission by Motion,” but fall short of the requirement to have practiced law in a jurisdiction of reciprocity for 60 months. Such experienced attorneys previously registered to take the Utah bar exam in July 2020 because they did not yet qualify for Admission by Motion, but otherwise meet all other requirements set by the Utah State Bar. The odds that such experienced attorneys will pass the Utah bar exam is high. Permitting recent law school graduates to practice under various degrees of supervision under the Proposed Order but excluding experienced attorneys who can practice law at a high-level without supervision is an incomplete resolution. Under the unique circumstances created by the COVID-19 pandemic, experienced attorneys who already meet the spirit of the requirements instituted by the Utah State Bar for Admission by Motion should be admitted along with recent law school graduates.
The Proposed Order should include an additional category, separate from the “Recent Qualified Law School Graduate” category, that includes currently licensed attorneys who are registered to take the July 2020 bar examination from a jurisdiction that reciprocally allows the admission of licensed Utah lawyers. Criteria for admission in this regard should follow the criteria required under Rule 14-705: “Admission by Motion,” but shorten Rule 14-705(a)(7)’s requirement to have practiced law in a jurisdiction of reciprocity for “60 to 84 months immediately preceding the date of the filing of the application for admission” to some amount of time less than 60 months but not less than 36 months (three years).
Alternatively, the Utah Supreme Court should reduce the requirement to have practiced law in a jurisdiction of reciprocity for 60 months to be Admitted by Motion to some amount of time less than 60 months but not less than 36 months. Such experienced attorneys who qualify under the revised Rule 14-705 should have their application by bar exam converted to an application by motion, and the application for such qualified applicants would follow the same procedures already instituted for applications by motion.
Thank you for your consideration.
I entirely agree with your logic, however, it seems unfair to provide the same basis for licensure you’ve given and to exclude states who don’t provide reciprocity to Utah attorneys (California, for example). Otherwise though, your logic is entirely sound and points out a major flaw in this proposed order.
My law school experience has been the University of Wisconsin which had an admission upon graduation when I graduated in 1962. My continued contact with Wisconsin lawyers suggests no concern that Wisconsin graduates are less competent than those who achieve Wisconsin admission through the bar exam process.
Wisconsin did have some summer internship obligation when I graduated in 1962. At that time there was none of the clinical and internship opportunities which law students, and especially Utah law students, experience.
The proposed order under the emergency circumstances is wise and compassionate. I have no concern that unqualified lawyers will be foisted upon the public.
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.
I think this privilege should include any qualified applicant who is eligible to sit for the bar regardless of a previous bar exam or date of graduation and at a minimum include a waiver for those in federal areas and outside of the state. Otherwise a group of applicants (not just very recent grads) are out their costs of bar exam materials, which was a stated concern and maybe even moving expenses. Also, it is not consistent to compare a school’s national Bar pass average to Utah’s state specific bar pass rate. A more accurate comparison would be a school’s graduates that took and passed the Utah bar.
Please consider extending this to any current applicant regardless of a graduation date, regardless of a prior bar, and regardless of a school’s ranking, so that we can get applicants working, clients served, and the economy moving. This is bigger than just recent grads and should be something that helps all applicants. The idea of the 350 hours as an apprentice will work wonders.
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.
I agree with Anthony C. Kaye. The proposed amendments do not create uniformity across all applicants and affected parties.
Additionally, the proposed amendments demonstrate that passing the Utah Bar Examination is not a necessary requirement to obtain full licensure status without limitation. If the logic underlying the proposed amendments holds, then the proposed amendments should be broadened to dispense with any requirement to take the Utah Bar Examination for attorney applicants, attorneys who have been admitted as House Counsel, and attorneys who have applied for membership as House Counsel. All such attorneys already hold law licenses from other states, and some have practiced law in other states for many years. If the graduating class of 2020 is not required to take the Utah Bar Examination to obtain full licensure status, then there is no reason to require attorney applicants, House Counsel, or attorneys who have applied for membership as House Counsel to take the Utah Bar Examination in order to obtain full licensure status without limitation.
Thank you for your consideration.
Well-stated Mr. Kaye.
I am opposed to this rule.
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.
Agree. If Utah is going to continue to administer the Bar Exam in the future, then this group also has to take the bar. Lawyers everywhere have had some reason or another that made taking the exam hard, difficult, and perceptibly impossible. Yet they overcame those difficulties then, this group applying now will overcome this. Just take the exam later.
I’m a current 3L student at an out-of-state law school that is signed up to take the July 2020 Bar examination in Utah.
First, I would love a clarification of the “Qualified Recent Law School Graduate” is in reference to what the 86% first-time taker bar examination applies to. The Proposed Order doesn’t specify whether the 86% threshold is decided by taking the Law School’s specific first-time bar passage rate of the bar examination or whether it is saying, like the “Statement Accompanying Emergency Proposed Order” says, that the 86% first-time bar pass rate is the pass rate percentage of the first-time takers of the Utah State Bar Examination. This makes a huge difference, considering that any law school that is outside the state of Utah might have 1-5 graduates who take the Utah State Bar Examination in each administration of it.
Second, either way I think that the 86% pass rate threshold should be removed from the Proposed Order altogether. The Statement Accompanying Emergency Proposed Order says, “a diploma
from an established law school with a PROVEN TRACK RECORD OF SUCCESS on the Bar
Examination” is the reason that the 86% pass rate threshold is in place, but it is only drawing from those graduates who took the Bar Examination in 2019. I don’t understand how the Supreme Court can consider one year of Bar Exam passage rate numbers can qualify as “a proven track record of success on the Bar Examination.” Especially if they are going by the Utah State Bar Exam passage rate for out of state schools. That would mean that there a could be a recent graduate that has a 4.0 GPA from an out-of-state Law School that doesn’t qualify because the graduating class from his out-of-state law school had three graduates who took the Utah State Bar Examination and only one of them passed the bar, effectively making that law school’s “first-taker” pass rate 33.33%.
The aforementioned scenario is almost guaranteed to happen if the Order is passed with the arbitrary 86% pass rate requirement. If a recent graduate has graduated from an ABA accredited law school and has already applied for the Utah State Bar Examination they should be considered a Qualified Recent Law School Graduate for purposes of the Proposed Order. The 360 hours of supervised work should be enough to prove competence and the ability to practice law no matter which ABA accredited law school you graduate from. The determination of whether you could effectively practice law in the state of Utah should not depend on the how the prior class from the law school that you graduated from did on the Utah State Bar Examination. For example, the law school that I am graduating from would not meet the first time takers 86% passage rate threshold for the 2019 year, but it would meet the threshold (with a 100% pass rate) for 2016, 2017, and 2018 years. The fact that under the Proposed Order I would not qualify as a “Qualified Recent Law School Graduate” because the 2019 test takers didn’t perform up to the normal standards that my school has shown prior to 2019 on the Utah State Bar Examination, which is nothing that is within my control at all, does not make sense to me at all.
All we need in Utah is to have more lawyers drumming up more work for themselves while chasing after the same number of clients, especially when the latest batch of new lawyers has not even passed the bar exam. Perhaps it proves that the bar exam really doesn’t measure competence to practice law.
What Utah actually needs is less lawyers filling the media with their solicitations to call and start a lawsuit against anyone and everyone.
The new lawyers should have to wait for the economy to reopen just like most of the populace.
Your comment naively overlooks those attorneys who will provide pro bono hours to underserved individuals, and assumes the practices they enter will be of the TV commercial sort. Further, added competition in the market place frequently provides greater access to resources for legal representation since it drives down the cost overall of legal representation, making those who otherwise would not be able to afford it, eligible.
The Utah Supreme Court released an accompanying statement that states the pass-requirement specifically applies to students who “have graduated within the last year from an ABA-accredited law school that recorded a 2019 first-time taker bar examination passing rate of 86% (the pass rate of first time takers of the Utah Bar Examination in 2019).” That, however, does not clarify things for me. Is the parenthetical statement merely a justification for why the committee chose 86% as the cutoff, or is it specifying that the requirement for each law school is to have had an 86% pass rate for first-time takers of the UTAH Bar Exam?
If the latter is the correct interpretation (i.e., that only graduates of law schools that posted an 86% or higher first-time pass rate on the Utah Bar Exam are eligible), then what about graduates from schools that had no one sit for the exam last year? I teach at a law school in Ohio. We have a third-year student registered to take the Utah Bar Exam. He and his family are moving to Utah next month. Our school, however, did not have any first-time takers sit for the Utah Bar Exam last year. Thus, if the latter interpretation is correct, then this third-year student can neither take the July bar nor receive an emergency diploma privilege. It would punish him (and others with a similar predicament) because no one in the previous class at his school sat for the Utah bar exam.
I hope the committee clarifies this on the final proposal, and I would also implore the committee to not implement the latter interpretation I’ve discussed here. That would really discriminate against many out-of-state graduates who planned to take the Utah Bar Exam.
I’d like to add that, regardless, the 86% cutoff is arbitrary and unfair for the various reasons that many other commentators have already laid out.
As someone who has taken 5 bar exams (including Utah), I think they are kind of a waste of life. They certainly test something but I couldn’t say that what they test is particularly meaningful, nor have I ever felt like I was glad someone I was going to refer a client to had passed the bar exam because it was a strong indication to me of their competence to handle the matter. It is a hurdle that seemingly can be overcome by anyone willing to dedicate the time. So I don’t worry about this new rule from the perspective of eliminating a gatekeeping function that provided substantive value.
What I haven’t seen in the comments, and what is of concern to me, is the effect this might have on the reciprocity with other states. At present, according to the bar, there are 42 jurisdictions that admit members of the Utah bar on motion or through other reciprocity arrangements without requiring Utah Bar members to sit for the bar exam. Nevada, California, Delaware, and Florida are not reciprocal with really anyone, but most other states that Utah bar members are likely to want to practice in will admit Utah bar members with certain experience (usually five years) on motion without the need of any other substantive screening or evaluation. Since Utah is a UBE jurisdiction, many recent law grads have effectively passed the bar of around 30 jurisdictions. Does this temporary rule put that at risk? For example, New York’s Rule 520.10 currently allows admission of anyone with experience from Utah; would they reconsider that if Utah’s admission criteria changed and no longer included the MBE or some other “objective measure” of lawyers’ competence (I might think it is not a meaningful gatekeeper, but if New York, or Texas or Colorado thinks that Utah’s bar is a meaningful gatekeeper that matters)? Has the Bar, or the Supreme Court, or anyone else checked with reciprocal jurisdictions to see if this kind of temporary change we are proposing would have any implication for reciprocal admissions either for the Class of 2020, or more importantly for Utah’s reciprocity relationship with these jurisdictions more generally? Lawyers in my firm are currently going through this reciprocal admission process in a way that is beneficial to them personally, to our clients, and to the firm. Having had to take the Nevada and California bars to be able to serve our clients’ interests in those states because of the lack of reciprocity, I can assure everyone that a mid-career bar exam in miserable. If we are risking our reciprocity relationships with other states in the long term to address this short term concern, perhaps we should consider whether that is a wise decision and whether there is another way we could address the legitimate concerns of the Class of 2020 without implicating everyone else’s long term interests. If no one has checked that issue, perhaps, with all due respect, the Supreme Court and the Bar should consider those issues before moving forward.
Everyone be safe out there.
I believe your comment is the most fairly poised opposition to the order that’s been laid out. Reciprocity should be protected if possible, however, perhaps a waiver option by the individual seeking licensure in the July 2020 bar could resolve this issue and protect reciprocity? I’m licensed in CA currently, and have no intention to motion into another state’s jurisdiction. A waiver option would make sense for me, and I need to get licensed in a UBE state down the road, I’d need to then take that state’s bar? The bar (any bar) is pointless and doesn’t test the the applicants ability to serve the public well. It’s just more of the hazing to licensure. I, like you, already paid my hazing dues in one state and I’d be very happy to get to work immediately instead of endure more needless hazing.
Loren, thank you for raising the reciprocity issue.
I’m a class of 2020 graduate from a Utah law school. My understanding of the Order regarding reciprocity was that it would not be equivalent to passing the UBE, rather, it would only be a limited license to practice law in Utah. I can see that this will be a huge blessing to many of my classmates who never intend to leave Utah or otherwise practice law in another state. Waiting until next year to take the bar was not in any of our plans. We were looking forward to jumping over this next hurdle and entering the job force by August. This is a remarkable opportunity to get new Utah attorneys into the field sooner, under the mentorship of experienced Utah attorneys.
For me and many of my classmates who were planning to take the Utah bar but may plan to leave Utah or practice law in other states as well, that is not the case. As we understand it, any applicant that needs or wants reciprocity will need to take the UBE the next time it is offered. I work remotely for an out-of-state firm and none of the attorneys at my firm have 2 years of practice in Utah, so I will not qualify under the proposed rule. Because I want a license to practice law with reciprocity, I plan to take the Utah UBE the soonest it will be offered.
Whether the diploma privilege+ route will have reciprocity is an important clarification that needs to be addressed in the Order.
Thank you, Utah Supreme Court and all those who worked on this Order.
So basically the Utah Supreme Court is saying that a University of Utah graduate who graduates with a 2.0 GPA is better suited to practice law in Utah than a UCLA Graduate with a 4.0 GPA?
Either you failed to understand the order (worrisome), or you’re just adding another non sequitur to a list which already has its share.
Trying to be patient
So basically you decided to put words in the mouths of Utah Supreme Court?
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.
I should say that there does need to be clarification or a reevaluation as to the 86% passage rate from ABA approved law schools as a requirement.
While I believe that the Bar exam itself is an inept tool at preparing those who pass its gauntlet to actually practice law, I am more concerned that creating this new class of licensed attorneys may negatively impact the reciprocity treatment that other states have towards Utah bar holders.
I don’t support retaining the bar simply because I had to go through it. I think instead that this could be an opportunity for many State Bar association to consider a more holistic approach to proper criteria that establish an individual has minimum competence to practice as a lawyer, including but not limited to entirely removing the bar passage requirement.
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 strongly disagree with this emergency amendment. This amendment will disproportionately benefit the wealthy, the well-connected, and the mediocre. There are undoubtedly among this graduating class people who will go on to be Supreme Court Justices and Attorney Generals. However, there are also undoubtedly among this graduating class people who should not be admitted to the practice of law. The bar exam is not a perfect predictor for future litigating competency but it is at least an objective exam that can be passed or failed.
If we have decided as a legal community that the bar exam has no value, then it should be abolished going forward–for all candidates and for all time. If the bar exam has value, then a provisional license to practice could be extended to current graduates for 18 months. They would then be required to take the exam sometime in the next 18 months. I understand that this means many of these people would be working while studying. But that’s why we offer them the extended period over which to study and take the exam. Graduates get the benefit of beginning to work in June rather than waiting until October exam results to be licensed. This seems to be a suitable economic trade off.
The system being proposed seems to offer no incentive to the supervising attorney. So we’re asking someone to do 360 hours of supervision for free (basically doing their own work and babysitting the new attorney at the same time). And we think this will not result in candidates being rubber stamped? Some supervising attorneys will be sticklers and some will not care at all. There appears to be no certification process or training program for the supervising attorneys. But even if there were, it would undoubtedly be bureaucratic and disadvantage smaller firms, smaller public interest jurisdictions, and solo practitioners.
Also, what supervising attorney would feel comfortable saying to a candidate “actually, you don’t seem cut out for this.” The candidate is self-selecting their supervisor so presumably there is a pre-existing relationship in most situations. That will color the supervisor’s assessment. Is there even a mechanism for the supervising attorney to express concerns that a candidate is not competent or does hours=automatic admission?
Additionally, this will disadvantage the areas where communities need access to justice the most, indigent defendants…no criminal defendant will consent to be represented by a provisional attorney. Or if they do, expect to be inundated with ineffective assistance of counsel claims.
This seems like a panicked and disproportionate response to the covid-19 issue, likely to do damage to public trust in the practice of law.
I understand your argument but respectfully disagree.
Previous to the administration of the first bar exam in 1885, the American legal system functioned through requirements less stringent than those proposed by this order. You suggest that such a system would be dysfunctional, but such an operation created lawyers such as Lincoln, Frank B. Kellogg, and Joseph Story. To say that the previous system if instituted today would be dysfunctional is simply personal conjecture with no real basis.
Additionally, to suggest that supervising attorneys would not effectively measure student competence is to suggest that bar is the only way to prove competence to practice law and that an individual could cram for a test for only a few months (as most students do for the bar) and become a qualified attorney. This is an insult to the legal profession, supervising attorneys, and law schools.
Those attorneys who believe that supervising a new graduate would be “babysitting” or who believe they should be compensated for such work are not required to participate in this order and therefore this portion of your comment does not appropriately reflect the concerns of those participating. Supervising attorneys who are unable to accurately assess the abilities of students or to be upfront with the student regarding his or her ability to practice law should simply not participate in this system and self-select out of supervising a student.
I am a 2015 graduate of the University of Utah’s S.J. Quinney College of Law, and I have been preparing for my 3rd attempt, this July, at a passing score in Utah (270).
I have lived in Utah for 20+ years – I wish to be a member of the Bar in Utah, and do not wish to move to another state which would accept my previous score (as of today, 14 states, the US Virgin Islands, and the District of Columbia set a minimum passing UBE score of either 260 or 266). http://www.ncbex.org/exams/ube/score-portability/minimum-scores/
Graduates between May 1, 2019 and June 30, 2020 are members of the class of 2019 and the class of 2020.
These students are certainly to be commended for pushing through the upheaval brought about by the Covid pandemic to become members of the Bar. They and their families are sacrificing to reach this culmination of a legal education
No one is untouched by this situation, in or out of the legal field, and help is needed.
To consider giving additional graduates the opportunity for lending a hand under the auspices of supervised legal practice allows for more, badly needed resources in the fight to bring communities and the nation back to normal.
The equitable approach is to extend the reach of this extraordinary order to those who are willing to demonstrate requisite character, fitness, and ability to maintain the high standards expected of legal practitioners in Utah regardless of graduation date or exam failure.
The Court seems now to be framing the standard of ability as one that is viewed subjectively by a trusted, experienced member of the legal community. There is no requirement that the hours are UBE-280-equivalent hours, or even UBE-180-equivalent hours, for example.
One can imagine that a trusted, experienced mentor could see that same promise – that same commitment to excellence – in a graduate from 2010, or in a graduate who refuses to give up taking the formal admission exam.
I’m not looking for a free pass – nor is any student wishing to effectively practice law – but I’m sure there are many individuals who would rather spend 360 hours this year making a difference in a world that’s reeling than going over study materials again.
If the proposed order stands without change – I look forward to joining the Bar in 2021.
Thank you, and best regards.
This would be great, except it’s discriminatory based on the 86%. Instead of basing it off that arbitrary number, they should add training requirements and CLE training. Law students from schools that have an 82 will be excluded. They worked just as hard and just because previous graduates didn’t do as well on the bar, they are being punished?Absolutely not.
As a practicing attorney, you should be able to pass the bar exam. I would suggest modifying the proposed order to allow recent law school graduates to practice under the supervision of a licensed attorney until they pass the bar exam. The time period should be limited to one year, which should allow the recent graduates to take the bar exam.
Another suggestion would be to simply postpone the bar exam date until such time the restrictions by Salt Lake County and/or Salt Lake City are lifted that would allow a bar exam to be held. Until the exam is held, those registered for the exam shall be able to practice under the supervision of a licensed attorney.
This proposal does little to alleviate the threats from COVID-19 and only a minority of the Bar applicants will benefit. The Governor has instructed Utah citizens to “Stay Safe, Stay Home”. Allowing recent law graduates to enter the workforce under “supervised” conditions contradicts that directive and contributes to further spread of the disease. Law graduates would serve the public better by staying home and studying for the Bar exam, which can easily be postponed to a later date.
Are you going to pay for the missed work opportunities of these graduates? Will you pay their tuition debt? Ok then. Stay quiet.
These graduates are no more a danger to the public under supervised practice than they would be if they didn’t practice at all. If they are, I fail to see how you could prove that.
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 understand that because of these unprecedented circumstances, some flexibility is required with respect to the bar exam this year. However, I don’t quite understand why this flexibility should only apply to applicants who have graduated between May 2019 and now.
For example there are those in situations like myself – I graduated from a law school that would qualify under this rule, and have already submitted my application to take the July bar exam. However, I graduated in 2017, and took the bar in a neighboring state, where my last firm was located. Early this year, I moved and began working at a firm here in Utah. Since beginning my new employment, I have worked under the supervision of Utah lawyers for more than the required number of hours under the proposed order for newly 2019 graduated applicants – in addition to having worked as a fully qualified attorney in another state since 2017.
However, despite qualifying in every other respect under the order, I would have to take the bar exam at some unspecified future date, while the other applicants would be completely exempt from taking the exam, simply because I graduated a few years ago, rather than last year.
Since there are already other restrictions in place to limit the number of applicants that would benefit from this rule, such as the qualifying law school restriction and the requirement that the application already be submitted, I don’t see how getting a flood of applicants would be an issue. It seems like this restriction doesn’t have a particularly compelling reason, and it would be more fair to eliminate that cutoff.
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 worry about attorneys who have practiced in another jurisdiction, moved to Utah to start begin a practice here, and who need to take the bar exam. Shouldn’t their application should be treated the same as those who graduate from law school this spring? Such candidates likely have greater practical experience but are at a disadvantage compared to students who are graduating but who have little to no experience practicing law. At least for those who have already applied to sit for the bar exam, there is no risk of people trying to exploit this year’s circumstances merely to avoid taking the bar exam.
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.
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
Though I think it is extremely unfair to punish any individual applicant merely because his or her peers from a previous class year did not collectively meet a certain pass-rate threshold, Amy’s recommendation is a very reasonable solution that would better address the Utah Supreme Court’s concern over admitting less-qualified applicants.
Under our current system I oppose this. Aside from the matter of the Bar Exam being a right of passage, and a barrier to entry to prevent those unqualified from practicing law, we have already put in a place a system whereby paralegals can engage in the limited practice of law. If anything we should be putting those students who graduate law school, but have not yet taken or passed the Bar Exam into the same classification as paralegal practitioners until such time as they pass.
A move like this would garner my support greatly if we moved to a system similar to Australia where law is a 5 year Bachelors degree and one must be an article clerk for an existing firm to learn the profession before one is licensed to practice solo.
What is going to happen is so predictable. This Order will go through as written, the July bar will be canceled, it won’t be rescheduled for any time in 2020 and the next bar exam in the state of Utah will be taken in February 2020. The Supreme Court has set this up so that all of the 2020 law school graduates who go to BYU or University of Utah will automatically be admitted to practice in the state. The Supreme Court doesn’t care about the 2020 graduates from out-of-state law schools and it shows in how the Proposed Order was written. There are plenty of out of state students who go to schools without an 86% bar pass rate that are more qualified and better suited to practice law than many students from BYU or Utah, but they were unable to go to those schools because of financial hardships such as receiving a scholarship from a lower ranked ABA accredited law school when they weren’t offered a scholarship to a Utah school. You would think that the out of state graduates who don’t qualify under these rules could go to another state that will have the bar exam at some point in 2020 and then just write in to be admitted to the Utah State Bar, but almost all other states deadlines to apply for their Bar exams have passed, so that wouldn’t be an option.
Why Utah won’t hold another bar exam in 2020?
It’s simple, if they aren’t willing to make accommodations right now for the out-of-state 2020 graduates who “don’t qualify” (like getting rid of the 86% threshold altogether so that they can be “qualified graduates” that need to do their 360 hours) why would they make accommodations for those same out of state graduates later in the year to put on a bar exam for them? The Utah Supreme Court will have gotten who that wanted in (students from Utah Law Schools) by passing this Order and at that point they will feel no pressure to spend their resources and time putting on a Bar Examination for those out of state 2020 graduates that were left out of the Order that was carefully drafted so that these students would be left out originally. This will leave the 2020 law school graduates who don’t qualify under this biased written Order in limbo for seven months as they wait for the February 2021 Utah State Bar Examination.
The Supreme Court should re-evaluate this Proposed Order and either get rid of the idea of diploma privilege altogether and hold the bar exam as soon as possible (July 2020, September 2020, or October 2020) or they should get rid of the discriminatory 86% first-time bar taker requirement to be a qualified recent law school graduate. Graduating from ANY ABA Accredited law school and doing the 360 hours of supervised work should be the requirements to be licensed.
For example: A student who has a 4.0 GPA at Gonzaga Law School is just as, if not more qualified to practice law in the state of Utah than a student at University of Utah who has a 2.0 GPA, but through this order the Supreme Court of Utah is trying to make it seem like the University of Utah student is more qualified. You’d think that a group of highly intelligent people like the Supreme Court is would come up with a better plan than what they have proposed.
I do agree that a clearer role of the class who will qualify is needed in this order. It doesn’t address those who are already licensed elsewhere, nor those who went to school out of state. It does seem to arbitrarily discriminate against out of state applicants, which I would think would indicate a strong likelihood for future litigation of the issue. However, I’m hopeful that the Supreme Court of Utah will thoroughly review these comments as they said they would.
As I was reading through the Proposed Order, I noticed this issue immediately. Certain aspects of the document do seem to discriminate against out-of-state applicants. Those aspects should be stricken. It should not matter that someone took a bar exam in another state. For example, what if an out-of-state applicant is now serving as a judicial law clerk in Utah? Further, though the law school that I graduated from fits within the Order’s parameters, there is not enough support for the 86% number.
Agreed. The Proposed Order does not fairly take into account all of the many concerns of unfairness. The University of Utah 2020 law graduates would get a free pass, including the statistically likely 14% that would fail the Bar on their first try, and automatically exclude out of state students registered for the Utah Bar from being considered even they attend schools with even 1% lower first time pass rates. I know someone in this situation.If you just look at statistics he could possibly be in the 85% of his class that passes the bar on the first try, whereas the 14% of U of U grads who would fail get to move on in their legal career. Either change how all ABA law school grads are going to be treated during this Pandemic, or change up how you administer the Bar and continue to make this a prerequisite for all.
While the Court is considering this issue so seriously, it would be really nice to hear something, anything, about admissions for those who already passed the bar, submitted an application, and are chewing their fingernails about the May motion. No one seems to have any information as to how or whether that will proceed. I would be rather put out if these 2020 grads who will not take the bar manage to be admitted before I am.
Further, does the state have a plan for ensuring future reciprocity? Presumably, there can be no UBE score transfer to other states without a score to transfer.
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 proposed rule appears rash. I agree that we need to be mindful of our current situation, but we are talking about just that – a current situation.
Consider for instance how long and hard we have considered whether to expand the ownership in law firms to those who are not licensed to practice law. That proposition, which certainly would constitute a significant removal of a longtime barrier to our industry. Now, in a matter of days, we are seriously considering the waiving of the bar exam? This will not be the last of the many emergencies that will impact our specialized industry. If our response is so extreme now, such would certainly suggest an inherent fault in our decision making ability, as a profession. To postpone the bar, permit taking of the bar remotely, these are reasonable accommodations for what are now certainly some extraordinary times. But, there is no need to make this time more extraordinary than it already is.
I would also address an issue, which no one may want to address, but everyone is thinking. That is the issue of economic impact. What will this insurgence of graduates who are automatically licensed to practice law do to those who are currently looking for work? What will it do to those who are striving to maintain a business in an already troubled economy and saturated market?
Finally, I would address a concern that could be voiced as simply “that’s not fair!” I see it quite differently. I believe that the proposed decision, if passed, will have long-lasting degrading effects upon our bar. I am not saying that these are not hard times, because they are. But I am no stranger to what these young new would-be lawyers are going through. I arrived in law school in 2007, just barely as the economic bubble started to pop. By the time I left law school, the economy was dead. I had graduated 4th in my class, yet I could not even get a job. For several months I took on a job for a meager $10/hr, and that was as an attorney who had passed the bar. It was humiliating, it was hard, and I was burdened by monstrous law school debt. But if the Bar had given me a free pass, if my law school loans had been forgiven, and if all had been made as if there was no problem to deal with, then simply put, I would not be where I am now. We are more resilient than this proposed rule gives us all credit for. As one prominent individual recently said, it is okay to do hard things.
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!
The proposed change in the rule is a bad idea for many reasons already identified by other commenters.
1) The bar exam, as flawed as it is, provides some evidence of an ability to be a competent attorney.
2) What will the consequences be to attorneys admitted by this process if they later seek admission to another UBE state?
3) How is the “supervision” requirement any different from just working in the legal field as any recent law grad normally would after taking the bar?
4) What happens to the students who did not attend a law school that qualifies for this exemption or who, for other reasons, did not graduate within the required time frame? I guess they are just out of luck. I would love to know how this exemption will affect recent graduates who are from minority and low income populations vs graduates as a whole.
5) While it is true that we forget much of what we study for the bar exam, we also remember enough for the studying to be helpful while practicing law. Studying for and taking the bar is not a waste of time.
6) Taking the bar exam is also a rite of passage for attorneys that unifies us all. It is not fun, but these students would be missing out by not taking it.
7) Will there be other consequences of this rule that we cannot foresee now? Will they be treated differently by employers and other attorneys because they never took the bar?
I do not understand why the bar exam cannot be held either more creatively as planned in July 2020 by splitting up the students between many different testing sites or some other remote method. I am sure that the legal community would all be willing to pitch in to make this happen. The alternative would be to hold the exam normally but maybe a few months later. A delay of a few months in taking the bar exam is not going to overly harm recent law graduates. Employers in the legal field understand that when they hire grads who are waiting to pass the bar, there is always the risk that they did not pass and will have to take the exam again. Most are very understanding in that situation. What is the difference here? Why would employers suddenly decide not to hire recent grads just because the bar exam gets postponed? I also do not believe that the legal field is going to be in bad shape just because the licensing of recent graduates may be delayed for a few months. There are plenty of licensed attorneys to help clients until our recent grads can take the bar. I really feel like it is a change proposed and written by qualifying law schools who only care about helping their graduates so they do not lose any potential new students and their tuition money.
I graduated from law school several years ago. I am licensed in another state. However, I recently moved to Utah and took the bar exam in February 2020. If I did not pass the exam in February, I am directly impacted by the cancelling of the July bar and am not benefited this proposed rule change. Without the ability to become a licensed attorney by taking the bar or being “supervised,” I will be stuck in my current job at my current low salary until the bar exam is held again. This rule permits students who are far less experienced and knowledgeable than me become licensed attorneys before I do. Not only is this unfair, but also illogical. Please reconsider making this temporary rule change.
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.
Thank you to the Utah Supreme Court for its willingness to be innovative in the midst of this unprecedented situation. Temporarily dispensing with the exam passage requirement reflects responsiveness to the present health crisis, particularly in alleviating the hardship experienced by all recent graduates who are deprived of normal conditions for exam preparation.
I do hope for a more nuanced, inclusive approach as to the relationship between the requirement of 360 hours of activity related to developing legal competence and the requirement that such hours be under the supervision of a qualified supervising attorney. I echo what has been previously commented that judicial clerkships should meet these requirements. I also think an LLM should meet the requirements. If the reference point for sufficient competency is studying for and passing the bar exam, and given that CLE hours are countable under the proposal, passing an LLM seems of a similar nature.
The narrow take on an apprenticeship style interim period of practice present in the proposal is a strong break from the bar exam. If the proposal is not motivated by an attempt to implement a close substitute for the typical bar exam preparation and passage, then I urge the Utah Supreme Court to move away from the bar exam on a permanent basis. If, however, the goal is to have a temporary and modest departure from the bar exam, then I think allowing judicial clerkships and LLM study (and probably some other activities as well) is the most principled course.
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.
Regarding the April 1 portion of your comment it is worth noting that students may not have applied for the bar because of other opportunities which have now been eliminated due to the virus. I do not believe the April 1 deadline takes into account the circumstances of these students and is also arbitrary.
You chose not to sign up for the Utah bar because you were hoping to compete in Miss Utah this summer. The fact that you chose not to sign up for the bar, but your peers did, is anything but arbitrary.
I appreciate your comment in allowing me to clarify for those reading the comments that students who did not apply for the bar are also facing extenuating circumstances. My decision not to take the Utah bar was not at all rooted in anything other than future plans to leave the state which have now changed. I hope the bar will be sympathetic to those who relied on certain plans that have now been altered due to the virus, just as those students who relied on the regularly scheduled bar have had their plans changed.
Well said, Colin.
I would propose expanding the rule to include those first time test takers who have applied to the Utah bar through the Student UBE Transfer Application, assuming all other qualifications are met. Where one physically sat for the UBE bar exam, prior to this proposed rule, mattered little. A Student UBE Transfer Applicant who physically sat for the bar in another state would be admitted to practice at the same time as an individual who physically sat for the bar in Utah. There is no real tangible difference between the two applicants besides the physical location that the exam was administered. The exam is the same, the character and fitness application is the same, and the admission date is the same.
Though there is an argument that if an individual is able to sit for the bar else where, he or she should just be admitted through the normal UBE transfer application. The problem with this argument is that many states have postponed there summer bar exam, and for those states that haven’t, there is no guarantee that a July Bar exam will occur. As such, this greatly hurts the current law students searching for employment in Utah. Especially in light of this proposed rule, where their peers would be admitted to practice without an examination, those delayed admittance to the bar would lose out on job opportunities.
Since there is no real difference between Student UBE Transfer Applications and those registered to sit in Utah for the UBE, especially in light of the potential detrimental effect in employment, I propose that the diploma privilege rule should be extended to the Student UBE Transfer Application.
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 not only support this proposal, but move we abolish the exam permanently. If graduating from an accredited law school isn’t enough, then we should make accreditation tougher.
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.
Please look at my name so that you understand how important my comment is because I’m a very important person. Welcome! I’m glad that you could finally join us in this world! 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.
@Real World, Spencer Brown is an esteemed colleague of mine and I appreciate him for taking the time to provide comments on the Proposed Order and what it means for him. However, I find your comment to be less helpful. I invite you to join with the Utah legal community and public and articulate specific details of the Order or Spencer’s comment to which you agree or disagree. Specifically, I’d like to hear your thoughts and expertise on how the Utah State Bar should otherwise deal with the situation at hand — where students have already been preparing for years in anticipation of admission to the Bar and now, given the circumstances, the Bar is unable to provide means for admission that they have historically used. We should not fault students like Spencer nor the Utah Bar for the situation at hand, but instead come together to find a joint resolution. That is what we do in the Real World.
I am tremendously disappointed in your lack of sensitivity. The Utah Supreme Court has specifically requested that third-year students voice their circumstances and feelings/opinions about this proposed order. To be sure, the proposed order has debatable shortcomings and merits and there is ample space within this forum to take up that important discussion. However, targeting an individual for allowing himself to be vulnerable and voice his point of view is childish. And the fact that you hide behind a fake name is emblematic of the legitimacy of your comment.
I hope you will consider joining this substantive discussion regarding the proposed order and refrain from singling out others.
Connor B. Arrington
There are many quite logical arguments presented here. For me, should this modification pass and every time I hire a lawyer, I will start with the question “What year did you graduate?” and if the answer is 2020, I won’t hire them. No more questions, your honor.
I whole hearted commend you for having the courage to admit that you are committed to practicing discrimination against a class of persons who had no control over this Pandemic leading to such an outcome. I also applaud you for being brave enough to make this comment on the Utah Supreme courts public comment site where other lawyers will see this. This type of prejudicial bravery surely could not have been an over night development and must have taken time to develop. Makes me wonder what other discriminatory hiring processes you have had practice with. Im certain this type of attitude will make for a fine lawsuit down the line. Great to see that as an attorney you are committed to the notions of fair play and justice!! BRAVO
Ultimately, the bar exam does not adequately test competency. Though “putting in the work” certainly can be positive, the licensure exam is a hazing ritual that is obsolete. Out of the attorneys I’ve spoken with on the subject, not one has stated that the exam actually tests competency. I obviously agree with them. Simply, passing the bar exam does not translate to competent legal practice. Practice translates to competent legal practice, as it should. It makes sense.
Under this proposed rule it needs to be clarified how first time bar passage is counted. For Example, Penn State Law is ranked 25th in the country in 2020 for bar passage in the principle jurisdiction of the school with a first time bar passage rate of 92.6%, but even then it is unclear if it qualifies under the proposed rule. See https://www.ilrg.com/rankings/law/view/80. It is incredibly hard to retroactively find the bar passage rate requested by the proposed rule. In 2019, as close as I can find, the national rate was 84.6% which would round only to 85%. Is it a reasonable reading that, despite being ranked top 25 for first time bar passage, a student in the schools top 20% still would possibly not pass under this rule. Therefore, I would request clarification, and if it is the case that the standard for the rule be 86% or more for first time test takers in either the principle jurisdiction or nationally. BYU does not even meet the 86% cutoff when measured by utah first time passage (76th with a rate of 83.3%) https://www.ilrg.com/rankings/law/view/12
Since statistics are skewed significantly in small size law schools by a single student fail (each student accounts for around .8-2% of the graduating class of any law school and a larger share for % of out of jurisdiction takers) I propose that either statistic be accepted for the rule. Specifically, schools with either a base pass rate of 86% or with a pass rate within jurisdiction of over 86%. There is little difference between the two lists, but removing the variance by accepting both metrics will eliminate academic finageling of the rule to bennefit one candidate over a different otherwise equal candidate where the only question that needs to be determined, if the rule is implemented, is the relative probability of passing the bar if it were administered as planned.
As a response to prior comments, a number of schools allow a December graduation, and a number of December graduates still wish to complete the bar in July. Since a December graduate would be on paper a 2019 graduate even though the actual graduations are mere months apart, I do not feel that predating the program to cover 2019 graduates who have not failed a bar exam previously is unduly prejudicial.
If this rule is implemented, furthermore, I do not think it will cast a pall over graduates from top schools that they were admitted without taking the bar, especially given the effective requirement of a 360 hour apprenticeship after graduation that none before have been required to pass. If an attorney spends that time training a top student and then hires the student to work on their cases upon admission to the bar, it would prejudice the clients that the graduated lawyer is working for to revoke the license once issued if the newly barred lawyer were to subsequently fail the bar. It is unlikely that good students from good pass rate schools would fail the bar, but since they would have full bar membership at that point, it would invite disorder to require at a later date that they devote hours to general bar prep that would be better served being devoted as zealous advocates of their clients’ specific needs.
Bravo! I support the order. This is an excellent idea and should probably be considered the new normal.
360 hours of supervised work is a fair substitute for the bar exam, and probably a better way to prepare future attorneys. Me and my fellow attorney friends often joke about how the bar exam did nothing to prepare us for practice. The bar exam lingers on because it’s so steeped in tradition and because too many of us have the “I had to take the bar exam, so should you” mentality. But in reality, other states have been doing something like this proposed order for many years with no problems.
If we’re honest with ourselves, many of these young graduates are probably more competent than those of us that passed an arbitrary bar exam many years ago. And personally, I would rather hire counsel that had just spent the last 360 hours practicing under supervision opposed to the counsel that had spent the last 360 hours going over flashcards for the bar exam.
A diploma-plus privilege is the best solution because it’s adaptive to the current situation and provides a format for applicants to become licensed and serve the people of Utah. The 360 hours of supervised practice requirement is sufficient to ensure competence to practice law.
The 86% bar passage rate seems intended to disproportionately benefit Utah’s in state law schools. Many excellent law schools in California and other states have bar passage rates that, while lower than 86%, are respectable. Minorities and low-income students are particularly disadvantaged by the current proposal as these individuals are more likely to have attended a lower-ranked out of state law school that provided scholarships or financial incentives. The current proposal also does not address applicants who are already licensed in other states and applied to take the July 2020 bar.
I am from Huntsville, Utah and I am about to graduate from the University of Wyoming College of Law. I had planned to take the July bar in Utah. I submitted my bar application on time and I have spent the last two summers interning for a prosecutors office in Utah. I have gone to law school with the intent of returning to Utah to practice.
Per the recent proposal, I will not be able to practice in Utah for quite some time. The University of Wyoming does not have a 2019 bar passage rate of 86%; the University of Wyoming’s rate was 78% last year.
The last two summers I have worked in Utah with other law students who have also been attending law schools in different states. Those law students will be able to be admitted to the bar under this proposal. These students and I have been exposed to the same situations and the only thing different for them, is how their upperclassmen performed on the bar. I have been a good law student, gotten good grades, and spent a significant amount of time interning in Utah courts. This proposal hinders students like me from having any relief in this difficult situation. The 86% threshold seems to be a way to grant relief to Utah law students in this time, but, neglects to recognize Utah students who went out of state for law school.
There are several options for students like me, coming from schools who do not meet the 86% bar passage rate: first, allow all students coming from accredited law schools and who have submitted their bar application on time (a deadline that was weeks before the Covid-19 quarantine) the privilege. Or second, the Utah Supreme Court could consider adding an option for law students like me to petition the court to use this diploma privilege.
I appreciate what the Utah Supreme Court is doing in this effort to grant relief to new law graduates, but I think they’ve missed a significant group of the upcoming legal community.
This comment addresses the emergency rule making to admit certain law school graduates to the bar without passing the Utah Bar exam.
The rule appears to be a reasonable balance of the interests of graduates to get to work, possibly serving people whose need for legal service has increased during the COVID-19 period and the interests of clients, opposing parties, and the courts in having only competent attorneys representing clients. I favor promulgation of this rule.
I am a law student at BYU set to graduate this month. Because of serious complications with my wife’s pregnancy due this summer, the likely loss of one of the twins she is carrying, and the growing uncertainty due to COVID-19, I decided not to complete my application for the July bar and instead planned on taking it February 2021. I made this decision in order to relieve the financial strain and the demand on my time the bar exam would put on my family during this critical time. Now it turns out that applying for July would have been the best thing for my family, since, had I applied, the bar exam would have been waived for me. Overall, I applaud this decision of the Court to temporarily waive the bar exam requirment. I think it will be a great thing for my classmates, and I imagine it will go a long way to help the problem of access to justice here in Utah (most of my time in law school has been spent working in pro bono clinics helping those who would not be helped otherwise). I understand the concern that reoppening bar applications could cause others who were not originally planning on practicing in Utah to flood the application pool, but I believe there are other provisions in place that could overcome this concern, and I think it is unfair not to at least open up possible hardship exceptions that the bar admissions counsel could consider case by case.
On a different but related note, as others have suggested, if the bar exam is not necessary for this graduating class, why should it be necessary at all? Lawyers are generally only expert in a few areas of the law, and that is because those are the areas they practice, not because those are the areas they studied in law school. To suggest that a law student knows something because they studied it for an exam is incorrect. Knowledge from study is fleeting. The 360 hours of supervised legal practice a law student has to complete will go much further in actually preparing a law student to be a competent attorney than any bar exam, and the free market may be just as effective, if not more effective than a bar exam at sorting out competent attorneys. Waiving the bar exam requirement permanently would greatly help the problem of access to justice that our society faces. Everyone jokes that we have too many attorneys. From working on the front lines in legal aid clinics, I have found that is simply not true.
Comments and Proposal re: Licensed Attorney Applicants
Proposal: Licensure should be granted to both recent graduates and Attorney Applicants.
The Statement Accompanying Emergency Proposed Order (“The Statement”) highlights several policy goals in its consideration for expanded licensure to applicants, such as: 1) preserving the ethics in legal practice, 2) meeting the potential increased needs for legal services during the pandemic, and 3) ensuring the competency of legal services rendered through a proven track record.
Granting licensure to Attorney Applicants fulfills each of the above policy goals. There is no benefit–only disadvantage to the public– in denying licensure to Attorney Applicants.
The Utah Supreme Court has a compelling interest to regulate the ethical practice of law among its members. Attorney Applicants provide a unique reassurance in the screening process, as any potential concerns regarding such an applicant are easily determinable. Applicants who already practice law are arguably better versed in ethical practice than recent graduates. In order to sustain the public’s confidence in the practice of law, perhaps only Attorney Applicants with an unblemished disciplinary history can be granted licensure.
Meeting Increased Needs for Legal Services:
Attorney Applicants already possess the critical skills needed to immediately and competently serve the public’s urgent need for legal services. Such applicants provide an essential resource that can be tapped into expeditiously to serve the surge in demand for legal services. To deny the public of this resource—and instead to only allow licensure to relatively inexperienced recent graduates—is an extreme disadvantage to the public interest. Attorney Applicants can fill this access-to-justice gap in the community and do so quickly.
Ensuring Competency Through Proven Track Records:
The Statement refers to the sufficiency of a diploma from a well-regarded law school when indicating an applicant’s competence in analytical capability and substantive knowledge of broad areas of law. Again, Attorney Applicants provide a unique advantage in screening applicant competency. The Statement cites practice-oriented exercises and hands-on internships as tools that develop an applicant’s competency. I submit that experience in the actual practice of law, as opposed to an internship and exercises, is a keystone to competency. Why grant licensure to applicants with internships but deny it to applicants with real-life experience? Why not grant licensure to both?
The comments above should not be construed to express the notion that recent graduates should not be admitted to practice law. Instead, I implore the Supreme Court to extend that same reasoning for admitting recent graduates to Attorney Applicants as well.
Thank you for your consideration. Your openness to comments and concerns is greatly appreciated during this difficult time.
The proposed order is an excellent response to the unprecedented pandemic. It will provide certainty to employers, students, and clients in Utah while ensuring that applicants are qualified and competent to practice in Utah. However, it doesn’t allow a lot of people to demonstrate their capabilities and leaves them without any way to seek admission until 2021. Those who graduate from ABA-accredited law schools with bar passage rates lower than 86% should be able to seek bar admission.
I’m a pharmacist, so I don’t pretend to understand all the nuances of the legal profession. I do however feel that dropping examination requirements in response to a temporary situation such as the current pandemic is short sighted. I cannot see myself being comfortable seeing a physician, pharmacists, or and other health care professional who has not passed basic competency exams. The same feeling extends to attorneys. I do feel badly for anyone graduating with a degree in a licensed profession for all the current uncertainty, but I think every profession should still uphold their requirements recognizing that the pandemic will subside and examinations will be possible in near future.
Russell, thank you for a point of view from a different licensed professional group. While I agree that basic competency in professional fields is necessary despite the emergency, I believe there is a difference between healthcare professionals and attorneys. Healthcare professionals are much more likely to perform their analysis quickly, on-the-fly while pulling from their memory. While an attorney may need to do this occasionally at trial or oral argument, the bulk of an attorney’s work and analysis is done while reading and pulling from numerous sources he has in front of him. This is why many lawyers commenting here note that the Bar Exam’s emphasis on memorization and rapid analysis is not a true test of competency, and if the same methods taken during the Bar Exam were applied in practice, it would often lead to malpractice.
As a law teacher for more than 35 years, I am confident that admission to the bar based a diploma from an accredited law school is a good idea. Graduation from Utah law schools has yielded high bar exam passage rates. I am a Utah graduate and was admitted to the California bar. I would be happy to express this support to any bar official.
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.
I completely agree with this process to prepare lawyers. I graduated in 2018. Failed the CA bar in 2019 along with 70% of all those who took it, including many BYU students, and have invested time(paid leave) and money(bar prep) for this exam that will be lost due to this decision. I’m afraid this decision is too far down the road for a change to occur. I realize this went quickly, but I wish current bar applicants and those directly impacted were surveyed and directly engaged.
I suggest a variance process be included for those of us planning to practice in federal practice areas and public services. We have no other UBE states to apply to that won’t cost more and can be applied to in such short notice. My plan was to work in legal services and disability law. This door has now closed for me and I may need to stick with a non legal job.
Correction: many other ABA approved schools, not just BYU.
It’s very ironic to me that for a bunch of Justices who believe that “All men shall be punished for their own sins and not for Adam’s transgression” that they think the 2020 law graduates from out-of-state schools should be punished not for their own test scores, but for the test scores of previous law grads that went to the same out-of-state law school.
The 86% requirement needs to be removed from this order. Punishing someone for someone else’s inability to pass the Bar Exam makes absolutely no sense. If you graduated from an ABA Accredited law school then that should be enough to be able to prove that you can practice law after the 360 hours of supervised service. If the ABA Accreditation is not enough then the process of being accredited needs to be changed, but don’t punish those 2020 law grads from the “inferior” / “Lower-tier” law schools because the ABA Accreditation standards might need to be changed.
This clearly is an act to get all BYU Law and Utah Law 2020 graduates diploma privilege while trying to keep the most out-of-state law graduates in limbo without the ability to: 1. Get the diploma privilege. 2. Take the bar examination as scheduled or even within months of it being scheduled. Its sad that the Supreme Court is going to get away with clearly discriminating against those that they think are inferior because they went to a “lower-level” law school.
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.
We should afford all graduates of ABA certified law schools who would sit for the 2020 July Bar an opportunity to work under the mentorship of an attorney to be inducted into the Utah Bar. The limitation to recent graduates is unfair and does not reflect competency. This should be a one time emergency procedure. When approximately 40% sitting for the February Bar failed, it doesn’t seem fair or equitable to allow a group of students who simply graduated a semester later a free pass. The loss of a bar exam would affect a lot of people, not just recent graduates. I would support legislation that would allow anyone sitting for the July Bar automatic admittance with the appropriate mentoring hours. After we are out of this crisis we can then readjust accordingly.
Kathleen, I agree that this emergency alternative licensing should not be limited to recent graduates, especially considering that based on a lot of modeling and projections by healthcare experts, we could be 18 months from allowing a large gathering such as a bar examination.
This Proposed Order was not circulated until after the deadline to have applied for the Utah July Bar Exam, so no applicants would have made such plans in anticipation of avoiding the exam. These are all people who have graduated from law school and just want their shot to contribute (and start paying back their significant debt). There seems no reason to make an applicant who graduated a few months sooner have to continue to wait longer because of more unforeseen events, and there is no reason to believe that someone who graduated a few months sooner is less capable of competently practicing law. The supervision/apprenticeship component has the potential to make all of these admittees more prepared to practice law than had they just passed the Bar Exam.
I agree. The Proposed language carved out current applicants who will offer just as much to the legal community and society as current students. Current language seems neglect part time students, those raising families, prior out of state bar takers, and older students. Please consider a variance with criteria so that we can present how we too can add just as much value in this time of hardship or please waive all approved applicants as the current language creates delay for many who have been preparing and are prepared to enter the profession.
I oppose the proposed change. I agree that graduating students should not be punished by their inability to sit for the exam in July 2020, but that should not eliminate the requirement of passing the bar exam completely. Instead, recent graduates facing this problem should be granted a temporary license to practice with the condition that they must take and pass the bar exam when the exam can be administered.
I appreciate the Utah Supreme Court’s concern with balancing the competing interests at this unprecedented time and I support the proposed rule with modifications.
First, if the Utah Supreme Court chooses to stay with the 86% bar passage rate, I recommend that Utah provide all applicants with two alternate ways for satisfying the 86% pass-rate requirement: (1) the applicant’s school has posted at least an 86% first-time pass rate on the Utah bar exam; or (2) the applicant’s school has posted at least an 86% first-time pass rate on the bar exam of the jurisdiction in which the school resides. In my view, this option would fairly accommodate out-of-state students.
Second, I also think it would be reasonable to remove the 86% bar passage rate requirement entirely and instead rely on the ethical requirements, graduation from an ABA-accredited law school, and the 360-hour apprenticeship after graduation. Drawing any arbitrary cutoff, such as 86%, will almost certainly exclude competent candidates from the diploma-privilege, while including students who may not be as capable. I understand the importance of having high-quality attorneys in Utah, but the current version of the order will likely exclude high-quality legal candidates merely because other students who formerly went to the same school as them did not perform well on the bar exam.
I am opposed to the Proposed Order for Temporary Amendments to Bar Admission Procedures During COVID-19 Outbreak. Let the recent graduates go to work with authorities similar to what a paralegal possesses until such time as he/she does sit for and pass the bar exam. Would you want an engineer who never had to take the professional engineering exam to design a skyscraper in which you live or work, or a doctor who never had to take the medical boards to perform surgery on a member of your family? Are we going to exempt all professions? Why is the legal profession being singled out? It makes no sense at all.
Personally, I would rather hire an engineer who had designed multiple buildings while supervised by another engineer, or a surgeon who had performed multiple successful surgeries under the supervision of another surgeon. Standardized tests mean very little to me.
Sections I.b.2 & I.b.3 should be amended slightly to avoid omitting the following students: There are many students who will graduate in May 2020 from top tier law schools (with first-time pass rates well in excess of 86%) who sat for the February 2020 bar exam after 5 semesters of law school. Approximately 16 states permit law students to take the bar exam before graduation if they meet certain reqirements. If taken in a UBE state and successful, these students can then transfer their score to a different jurisdiction — such as Utah. However, unsuccessful early bar applicants who sat for the exam in February would be omitted under Section I.b.2 and I.b.3.
These students balanced bar study, course work, internships, and job hunting simultaneously. The motivation for these students taking the exam before graduation vary but those I know did it for a leg-up in hiring efforts, to take an additional bar exam come July 2020, and/or for financial reasons — such as to begin working immediately upon graduation. These students should not be punished for taking on such a challenge and failing. Had they known admission to Utah’s bar would not require passage of a bar exam this year, they most certainly would not have sat for the February exam. If Section I.b.2 and I.b.3 is left unchanged, these students will be detrimentally harmed. They will be the few from their graduating classes unable to be barred in Utah and will have to wait until the next bar exam. This would make finding a job in the already difficult market much harder, increase their financial burden, and require them to prepare for another bar exam while their peers are already barred attorneys. I don’t find this outcome to be just.
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.
If it is true that minorities, women, and poor people are at a disadvantage in studying for the Bar exam and therefore they should be exempt from the exam at this time, then that is a valid argument for permanently doing away with the exam. These people would be at the same disadvantage in normal times. Also, why are law school grads getting preferential treatment in the job market by being exempt from this requirement? Millions of people are loosing their jobs so why should law grads be able to get a job now? I agree with other comments that the exam should just be postponed and any license given to the graduates should be temporary until they pass the exam. And, if they don’t pass then they lose the license.
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.
I fully support this proposed order. And I want to thank the justices and others involved in reaching this decision. I greatly appreciate the countless hours spent researching and discussing the possible ramifications to every possible solution. No solution is going to be perfect, but this proposed order comes close.
I am a current 3L. I’ve already spent 50 hours or more studying for the bar exam that I was planning to take in July. Although a postponed bar exam would be extremely inconvenient for me, it is likely that I would still pass and ultimately be okay. This is because I am lucky enough to have savings, a spouse that works, and a flexible employer that would likely allow me to work now and still give me time to study for a delayed exam later. But most of my classmates are not so lucky. For this reason, I feel that the proposed order is the most equitable solution for graduating students, employers, and those in need of legal services.
This solution provides some level of certainty and peace of mind to students and their families. It allows students the potential to start paying back student loans sooner while also avoiding additional loans. And it gives students the chance to gain real-life experience, which should be a sufficient substitute for memorizing bar exam questions. Personally, it will allow me to volunteer much of my time to pro bono initiatives before starting a judicial clerkship that I would not have been able to do otherwise.
Again, thank you so much for the time and effort that went into this proposal. Overall, I think it is a practical way to handle a difficult situation. I hope that this can be used as a chance to gather data and reflect on the best way to admit future applicants to the Utah Bar.
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 have been a full-time professor at the S.J. Quinney College of Law since 2011. Prior to joining the faculty, I practiced law for 30 years in a large, Salt Lake City based law firm where I served as head of the firm’s hiring committee for many years and supervised countless numbers of first year lawyers in connection with my civil litigation practice. Taking into account my current experience as a professor and my past experience as a practicing lawyer, I can say without hesitation that:
1. the 2020 graduating class of the Quinney College of Law is as prepared to competently and ethically practice law as any prior graduating class; Quinney graduates generally have a bar pass rate in the mid to high 90’s;
2. the 360 hour supervised practice requirement is a more than adequate substitution for the bar exam as it is currently configured; and
3. the supervised practice requirement helps insure the public will be adequately protected; many graduates become licensed without the benefit of any extensive real-world supervision.
I applaud the Court for its innovative and compassionate approach in this unprecedented time. I hope the pandemic and this proposed order sparks a careful and in-depth re-examination of the purpose, function and design of the requirements to practice law in the state of Utah, including the bar examination.
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.
Thank you to the Utah Supreme Court, along with the administration of BYU and the University of Utah Law Schools, and other Utah bar officials. As a graduating student I was really hoping to be able to take the July bar as planned, the fact that the bar would not likely be possible in July, and the impact that would have on the career prospects of our class has been very stressful. This solution recognizes that fact. Some are suggesting graduates be required to take the bar in the future, but studying for the bar while working full time is not a workable solution for most people.
Thank you for your well thought out solution and your leadership in these difficult times.
This is no doubt a difficult position for those who were scheduled to take the Bar exam this summer and for the Court in terms of how to navigate these unprecedented times. I agree with the Court’s sentiment that much of what is learned in terms of how to practice law comes through practical experience. While this type of mentoring has been occurring both informally and formally for decades, the mandatory New Lawyer Training Program implemented by the Bar a few years ago provides beneficial hands-on practical opportunities to those who would otherwise be unable to obtain this type of practical training.
However, I respectfully disagree with the proposal to allow individuals to practice law in our state who have not passed the Bar examination. As many have already articulated above, the Bar examination is critical because it shows a basic level of competency. The year I took the Bar (2006), the required pass rate was raised from 260 to 270 on a scale of 400; i.e. increasing the passing score from 65% to 67.5%. When scaled on a grade curve, this is the equivalent of going from a D to a D+. This was and is not too much to ask given the heavy responsibilities and demands of practice.
Of additional concern is how this will affect reciprocity with other states and public trust. Without a threshold test for competency, I’m concerned about an increase of bar complaints, disciplinary hearings, and malpractice actions. As a profession, we may be opening ourselves up to being regulated by an external entity, such as DOPL. Both the ABA and the Admissions Committee have recommended against outright waiver of the Bar examination to cope with the challenges of COVID-19. Waiving the examination solves one temporary logical issue but will create many residual problems.
On balance it seems the third-year practice rule could easily be extended until the test can be safely administered.
To suggest the bar is the only way to prove competence to practice law is to suggest an individual could cram for a test for only a few months (as most students do for the bar) and become a qualified attorney. This is an insult to the legal profession and to law schools.
If graduation from a certain law school and practice for a certain number of hours is sufficient for admission to the Utah State Bar, that rule should apply to anyone — including out-of-state attorney transplants who are actually licensed in other states, graduated from law schools on the Supreme Court’s list, meet the requisite practice hours, and have never faced disciplinary action in the states where they are licensed.
Either the Bar Exam matters or it doesn’t. It doesn’t matter any less for this group than any other group of graduates. If the Supreme Court determines that the Bar Exam matters, it should provisionally license new graduates and allow them to wait 1-2 years to take the exam before that provisional license expires. If it determines the Bar Exam does not matter (as is implied by this proposal), it should reevaluate and overhaul Utah’s licensure requirements to ameliorate the burden and expense that out-of-state attorneys incur upon relocation.
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.
I oppose this new rule, I am a wife who put my husband through law school. I watched the countless hours he spent studying for the bar.
This is a difficult time, but I think other arrangements can be made so the graduating students can take the bar safely.
From my non-lawyer perspective, not taking the bar and giving the student a free pass is self degrading to the student. Passing that test is a source of confidence and trust not just for the future customer, but also for that future lawyer.
Simply put, as hard as the bar is, I think that not taking the exam is doing a disservice to these graduates.
1) The end of July is far enough in the future to be safe. Place the desks 6 feet apart and hold the exam.
2) Hold a real-time online exam and count on the test-takers’ honesty.
Full disclosure: I’m a Utah-licensed attorney since May 2020.
I support the effort and I will actively make myself available under the Order to support recent graduates in their pursuit of licensure.
These are unprecedented times that call for empathy and action.
Full disclosure: I’m a Utah-licensed attorney since May 2010.
I support the effort and I will actively make myself available under the Order to support recent graduates in their pursuit of licensure.
These are unprecedented times that call for empathy and action.
As a citizen of the state and someone who interacts with attorney’s on a semi regular basis. I would like to state my support for this well thought out and compassionate compromise to admit graduating law students to the bar, so they can get to work. Having reviewed the previous, a whole lot of comments, I have noticed several trends of opinion that I would like to address.
1. I had to do it so they should have to do it too. As a career firefighter I am quite familiar with a profession that has over 200 years of tradition unimpeded by change mentality. Just because we have always done it this way does not mean that this way is correct. I believe the writers of this proposed rule carefully examined a very specific need and wrote a balanced solution.
2. The exam provided proof of their competence. This argument is patently false. At best the exam proves that they can pick out the correct answer, out of four possibilities, more often than not. The exam does not assess their ability to research an issue, develop a competent legal strategy, or make a cohesive argument in court according to the rule of law.
3. Taking the bar exam ensures their ability to be an ethical practitioner of law. False. A written examination does not evaluate a persons ability to be ethical. Interpersonal relationships and business relationships evaluate an individuals personal ethics more than any test.
In sum, this proposal should be accepted. Certainly there are some issues of equability that may need to be addressed in the future. However, for this moment in time, this is a well reasoned solution to an unprecedented moment in history. This firefighter gives it two thumbs up.
This seems like a knee jerk reaction. Nothing about this pandemic is preventing someone from studying for the bar. If anything they have more time. If the actual dates have to be pushed back a month or two that doesn’t seem like a huge issue.
Further if your going to do this for some, then do it for all including the ones that have previously tried and failed.
Seems like a bad idea overall.
What about licensed attorney test takers? I am a licensed attorney with almost 13 years of experience waiting to sit to take the Utah Bar in July because Utah does not offer reciprocity with my state with one of the most difficult bar exams in the country. I have been unable to seek employment at the state level practicing law because I am waiting for the bar exam here in Utah. This proposal says that several hundred recent graduates would get to practice law in this state before I would, with no set date for me to be able to take the bar. Why would students without any legal experience be able to be licensed, yet I would still be forced to sit for the bar? I already had to pay over two times the amount in order to register to take the bar. I find this “solution” totally unfair and unreasonable. If you are truly considering this solution, I urge you to allow licensed attorneys to be admitted by motion from jurisdictions which normally do not receive reciprocity.
Furthermore, it creates a slippery slope whereby you will no longer be able to require a bar exam in the future for law students. It also creates an unfair burden on many new lawyers who want to start a solo practice or who are not connected enough in the legal community to find a mentor to take under his/her wing. In this economically uncertain time, I would bet that only an elite handful of law students would be fortunate enough to have a family member help them out with this hours requirement, leaving first generation law graduates and minority law graduates without an option. This “option” which has been proposed is just a way to further create a divide between the haves and have nots during what will likely be the most significant economic recession of our life time.
It is time for the state bar to adapt, and not in a way that abdicates its responsibility to the community as the gate keeper for licensure. The community relies on the State Bar to ensure its attorneys are APPROPRIATELY trained.
Instead of lowering the standard, here are some very reasonable alternatives (there are lots of possibilities): (1) Develop a way to take the bar exam at home, with video surveillance of the test taker, (2) Create larger spaces for students to take the bar examination, or (3) Create more space and offer more dates for taking the bar exam.
The proposed order fails to address many issues as follows:
First, this proposal will negatively affect those who attended out-of-state schools. If your ABA-approved law school failed to have a first-time taker bar examination passage rate in 2019 of 86% then these students won’t qualify. Also, there is an issue if nobody from your ABA-approved law school took the bar examination in 2019. Why should current students who plan to take the exam be impacted by those who previously took the exam? How will this be addressed?
Second, this proposal fails to take into account out-of-state attorneys who applied to take the Utah Bar, but have already sat for another bar examination in another state.
Third, the proposal lowers the standard of the profession. Other states and professions are postponing tests rather than just passing.
Overall, the proposal would be equitable and make more sense if at some point these students could practice under a licensed attorney and then have to take the bar exam in the future.
I commend the Utah State Supreme Court for their actions taken in response to this difficult pandemic.
I support the proposed order in its objective, but oppose the portion of the order regarding the 86% state bar passage rate. The noted percentage is arbitrary and self-serving. The protection of the Utah based law school students by the Utah Supreme Court and the law school deans of both Utah and BYU is apparent and excludes a large number of graduates from out-of-state law schools that are vastly more competent than the bottom 10% at either Utah school. The notion that a top 10% student at an out of state law school with a 75% bar passage rate would be potentially excluded from beginning to practice under this proposed order is absurd. I do not see why a Utah or BYU student who is in the bottom 10% is any more qualified to begin practice in Utah than the aforementioned out of state law student.
Right now, there are many out of state students who have jobs that are contingent on passing the bar. Not to mention the imminent student loans that will begin to come due long before a future bar exam will be administered. If this order passes as is, there will not likely be a 2020 bar exam. This means that many of these students’ jobs will be lost, and potentially filled by lower tier Utah and BYU students, once again showing how self-serving this proposed order really is.
The 360-hour supervised provision should be extended to all out of state law schools. There has to be a better standard than the arbitrary and self-serving 86% school bar passage rate, even if it would require that the student not be in the bottom 10% or 20% at their respective law school. Punishing students for attending an out of state school, while allowing ALL Utah and BYU students to participate in the 360-hour alternative is both under-inclusive and over-broad. I implore that the Utah State Supreme Court contemplate a different standard under this proposed order.
I am a Utah SJQ 3L who has applied for bar admission in a different state, so I am not eligible under this Proposed Order, but I support it on behalf of my classmates who would be eligible. I want to thank the Utah Supreme Court for their courageous leadership in being the first in the country to seriously consider a true solution for 2020 law graduates who could or would be experiencing a myriad of career and economic hardships if delayed after graduation. I find it very meaningful that you took that step.
The 360-hour supervised practice requirement will sufficiently and more productively replace the time these graduates would have spent studying exam prep material. Instead of working toward a passing score, eligible graduates would be gaining experience in the skills necessary to perform their jobs as attorneys. Many are eager to begin that work after 3 years of law school, and those of us who are likely to be delayed or interrupted are frustrated with the uncertainty of when we can begin the on-the-job learning process in earnest. This requirement will place more responsibility on supervisors than in the past, but I hope that they too will be eager to train these soon-to-be lawyers.
I am sympathetic to the concerns of commenters who feel that the Proposed Order lets some applicants slip through the cracks through circumstances beyond the own applicant’s control. I encourage them to leave a comment addressing any remaining un-addressed situations, so that the Court may clarify the relevant provisions of the Order.
I am graduating this year from Utah Law. For context, I am married and have a couple of small children.
This time has been stressful for everyone. For us, it has been filled with uncertainty. Previously, we knew that after graduation I would need to study full time for 2-3 months and that in July I’d take the bar exam. We max out our student loans each semester and were already stressed about making it through the bar study period. While not a given, we felt that if I put the time in that I would pass the bar and be able to start working as an attorney. Going to law school at 31 with a family was a sacrifice that was about to pay off. However, with COVID-19, we didn’t know when I’d take the bar. We knew it likely wasn’t happening in July, and we weren’t optimistic that it would happen in the fall either. In fact, February is still uncertain. So, without any idea of when I could work as an attorney, when I could take the bar, or even when I should take the months to study for the bar, we had no idea what to tell potential employers or where money was going to come from to get us through.
We are so grateful that there is an option that would allow me to work. We always planned on taking the bar, of course, and, as required, we already applied to take the exam. With that impossibility, though, the only real options are to have 2020 grads somehow get by for a year and take the text much later, which has been shown to be more difficult than taking it soon after graduation, or having some type of diploma privilege.
I don’t have a strong opinion about the particulars, but I do believe this order as a whole is the best option to give myself and my classmates a chance to do what we set out to do three years ago when we started law school. My only push is to allow us to start these hours as soon as possible. Our last final is May 1, and our graduation was going to be May 8. Please, don’t make us wait around. I want to get working.
Dear Justices of the Utah Supreme Court:
I write to strongly support the proposed rule to allow May/June 2020 graduates to be licensed to practice law, and especially to support the requirement for 360 hours of supervised legal practice.
I have been a member of the Utah State Bar for 35 years and have served on the Bar’s Ethics Advisory Opinion Committee for the past 18 years. I am a professor at the University of Utah S.J. Quinney College of Law where I served as the Clinical Program Director for 35 years (1984 – 20019) and taught the required Legal Profession / Professional Responsibility course for almost as long. I wish to share the relevant knowledge that I have gained from my experiences teaching, directing the Clinical Program and supervising law students performing pro bono work.
The Value of Experiential Learning
Our students have historically taken great advantage of the opportunity to serve as legal interns for judges and practicing attorneys (primarily in the public and nonprofit sector) under the “student practice rule,” Rule 14-807. For example, they appear prosecuting or defending misdemeanor cases with county and city attorneys and public defenders. They intern with the Legal Aid Society and Utah Legal Services, appearing in protective order proceedings, divorces, custody cases, not to mention landlord-tenant and consumer matters, to name just a few experiences.
Typically, 90% of our graduating class has participated in these experiential learning opportunities. Many of our students enroll in multiple semesters. During a recent year the U of Utah had more such live experiences per student than any law school other than Yale. Students who have invested many hours in these internships often say that they feel fully capable of practicing law as a result. Many supervisors have also told me that the students they have supervised are fully ready to be members of the bar. A few graduates successfully establish their own law practices based on their clinical experiences.
Our students also regularly volunteer at the Pro Bono Initiative brief advice sites, where they work hand in glove with volunteer attorneys. In this way, too, they gain knowledge of a wide range of substantive areas of law and develop practical judgment as to how to handle legal problems. I have personally observed students develop important expertise in family law from twice-monthly volunteer work over the course of their law school careers.
I have seen that law students who commit substantial time to well-supervised clinical or pro bono work develop the competence necessary to practice law. Others appear to agree. A few years ago the bar surveyed members as to what experiences from law school were most important in hiring decisions. The answer was that experience in the Clinical Program was most important — more so, even, than law review! The College of Law also recently surveyed its graduates about what had best prepared them for practice. Again, the Clinical Program and the Legal Methods (research & writing) Program were ranked far ahead of any other aspect of their legal education.
Supervised practice will allow our graduates to integrate substantive and procedural knowledge with the judgment and skills the supervisor can impart. Supervised practice will allow them to encounter ethical issues and understand how a seasoned practitioner resolves them. I feel confident, based on my experience overseeing the Clinical Program and participating in the Pro Bono Initiative, that this approach to ensure the competence of our law graduates is a sound one.
The Weaknesses of the Bar Examination
The rule’s plan to require 360 hours of supervised legal practice may even be superior the written bar examination. The bar exam consists of two days of closed book testing, primarily on first year courses the students passed over two years ago. It requires memorization and quick responses to multiple choice and essay questions. The bar examination in no way replicates what lawyers do. In actual practice no lawyer should ever give advice or take legal action based on what they are able to recall under time pressure. Instead, a competent attorney looks up the statute or rule or case, even if just to double-check what they thought it said. The bar examination does nothing to ensure a lawyer will take such a reasoned approach to addressing a client’s matter. However, the 360 hours of supervised legal practice will instill competent habits of practice in our graduates.
The Access to Justice Needs
Finally, I am convinced that there will be opportunities for all our graduates to forge supervisory relationships in order to complete the 360 hours of practice experiences in pro bono work. This should result in more unrepresented parties having access to legal advice and representation in their matters. The rule wisely directs our graduates to put their time to serving actual legal needs (rather than cramming for a closed book exam). During the pandemic many legal cases have been put on hold; they will need to be dealt with in the coming weeks and months. In addition, there will be new problems created due to the pandemic. (As a lawyer-of-the day volunteer for the Self Help Center I get daily calls that deal with pandemic issues.) The rule should inure to the benefit of our community as well as to these students.
For all of the above reasons, I applaud the Court for crafting this proposed rule and strongly recommend it be adopted.
Linda F. Smith
I support this rule to allow recent law graduates to join the Utah Bar under the conditions set forth in the proposed rule. I have been a member of the Utah Bar for forty-two years. I have been on committees writing bar exam questions and grading those questions in the past. I have never thought is necessary that a law graduate from an accredited law school should be required to sit for a Bar Exam. I still recall the challenge of spending thirty days cramming an inordinate amount of information into my head and then responding to questions over a two or three day period. I have always assumed that a law school graduate has been appropriately educated and tested. Granted, a law degree only provides a foundation for a career in the law. There is much still to learn. I never believed that what it took to pass a Bar Exam was a necessary prerequisite to a successful legal career. Rather, it seemed like an unnecessary bar to entry to those well qualified graduates who struggle with what it takes to pass the exam.
I am writing to express my support for the proposal to allow waiver of the Bar exam in these unprecedented circumstances. While I recognize that as I am a faculty member at the S.J. Quinney College of Law there may be concerns about my impartiality, I also want to state that I have held an active Utah Bar license since 1983. I highly value my own privilege to practice law and the opportunities for my students to join all of us in this position of trust. I also believe that the students I have taught are uniformly conscientious, talented, well-educated, and ethical. To require a Bar exam in these very difficult times would be inhumane. The risks of congregate settings are unpredictable and will likely remain so for some time. Students who are immune compromised, or who have family members in fragile health, could be put to a terrible choice between careers they have worked so hard to attain and risks to their own or their family’s health. I believe we can trust our fellow members of the Bar to fairly and honestly administer the hours of supervised practice to ensure that those admitted in this emergency are qualified to practice law. Sincerely, Leslie Francis, Alfred C. Emery Distinguished Professor of Law
As a practicing attorney for more than 30 years, I support the proposed amendments as a reasonable, one-time accommodation to candidates impacted by the COVID-19 outbreak, for at least three reasons.
First, limitations on eligibility reduce or eliminate the risk of making the emergency procedures available to graduates seeking to “game the system.” The pool of eligible persons is reasonably restricted to students who have already applied to take the July 2020 bar exam and who are not taking any other bar examination.
Second, as framed, the proposed amendments appear to greatly reduce the risk of granting a license to a graduate who would otherwise have failed the Utah bar exam. To be sure, that risk is not zero. However, the proposed amendments appear to mitigate the risk rather substantially. The emergency procedures are only available to graduates of ABA-approved law schools with first-time taker bar exam passage rates of at least 86%, which is significantly higher than the overall Utah bar exam passage rate. (This requirement still includes approximately 50 law schools.) Notably, a majority of those taking the Utah bar exam are graduates of Utah’s two law schools, which have bar passage rates even greater than 86%.
Third, the requirement of 360 hours of Supervised Practice significantly increases the assurance that licensure will be extended only to candidates who are generally qualified to practice law in the State of Utah. Whereas testing confirms minimum competency, training and mentoring tend to ensure that a candidate is qualified to practice. The emergency procedures are strengthened by the inclusion of a Supervised Practice requirement.
For these reasons, and under the circumstances, I support the proposed amendments. That said, I respectfully urge the Utah Supreme Court to restrict the effectiveness of these amendments to an emergency and temporary basis, and to resume administration of the Utah bar examination in February 2020.
As a practicing attorney for more than 30 years, I support the proposed amendments as a reasonable, one-time accommodation to candidates impacted by the COVID-19 outbreak, for at least three reasons.
First, limitations on eligibility reduce or eliminate the risk of making the emergency procedures available to graduates seeking to “game the system.” The pool of eligible persons is reasonably restricted to students who have already applied to take the July 2020 bar exam and who are not taking any other bar examination.
Second, as framed, the proposed amendments appear to greatly reduce the risk of granting a license to a graduate who would otherwise have failed the Utah bar exam. To be sure, that risk is not zero. However, the proposed amendments appear to mitigate the risk rather substantially. The emergency procedures are only available to graduates of ABA-approved law schools with first-time taker bar exam passage rates of at least 86%, which is significantly higher than the overall Utah bar exam passage rate. (This requirement still includes approximately 50 law schools.) Notably, a majority of those taking the Utah bar exam are graduates of Utah’s two law schools, which have bar passage rates even greater than 86%.
Third, the requirement of 360 hours of Supervised Practice significantly increases the assurance that licensure will be extended only to candidates who are generally qualified to practice law in the State of Utah. Whereas testing confirms minimum competency, training and mentoring tend to ensure that a candidate is qualified to practice. The emergency procedures are strengthened by the inclusion of a Supervised Practice requirement.
For these reasons, and under the circumstances, I support the proposed amendments. That said, I respectfully urge the Utah Supreme Court to restrict the effectiveness of these amendments to an emergency and temporary basis, and to resume administration of the Utah bar examination in February 2021.
I appreciate and agree with the majority of your comment John, but would like to make a record for the reviewers of these comments that the previous application requirement as a way to eliminate the fear of student ‘gaming the system’ does not account for career or further schooling plans (which initially prevented them from applying for the bar) may have been altered for some students due to the effects of the virus. As a student who experiencing this sudden change of post-graduation plans, I would like to state that my interest in receiving the benefits of this order are largely founded in my need to open up doors for additional opportunities.
Further, the fear of students ‘gaming the system’ does not take into account that graduating students who did not apply for the bar have fulfilled the same graduation requirements as those students who did apply for the bar and are now receiving benefits under the order. But for these non-applying students failure to apply for the bar, they would receive the benefits of this order. This minor difference should not prevent the students from the benefits their peers receive. As such, I support the Utah bar if it chose to re-open the application period for these students.
You’re still doing an LLM? You chose not to take the bar this summer because you were doing Miss Utah. So it seems like you’re trying to game the system.
I appreciate your comment in allowing me to clarify for those reading the comments that students who did not apply for the bar are also facing extenuating circumstances. The decision not to take the Utah bar was not at all rooted in anything other than future plans to leave the state which have now changed. I hope the bar will be sympathetic to those who relied on certain plans that have now been altered due to the virus, just as those students who relied on the regularly scheduled bar have had their plans changed.
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’m a current 3L at the University of Utah and would qualify for this proposed order. In my view there are a couple of primary reasons that the proposed order is the best way to address the unprecedented problems that COVID-19 currently presents.
First, I plan on working in public interest law after I graduate. For the past year and a half, I’ve been working at the organization that I’m planning on working with after graduation. This organization has been significantly understaffed for roughly the past year, and has been counting on my being licensed in order to meet their staffing needs. If the bar exam is pushed back from July then my organization and the people that we serve will have to wait even longer in order to have enough licensed lawyers to offer the full range of services that are needed. It would be one thing if the Utah Bar could state for certain that the exam would be offered in September. But in reality, nobody knows when it will be safe to offer the bar. And in the meantime, there are people and organizations who currently need the services that 3Ls can offer.
I understand that some individuals would prefer for the Supreme Court to extend the third-year practice rule and require 3Ls to take the bar at some future date. However, I’ve already been appearing in hearings, jury trials, etc. under the third-year practice rule. Given their understaffing, what my organization needs is a licensed attorney rather than somebody who can appear supervised under the third-year practice rule until the results from the next February or July bar exam – or whenever the bar exam can be safely administered.
I know a number of my classmates that are also lined up to go into public interest work. The people who need the services of public interest lawyers need those services now more than ever. And postponing 3L licensure for an indeterminate amount of time would not be the best way to serve those communities that so desperately need legal services at this time.
Secondly, the proposed order is the best way to deal with the economic uncertainty that 3Ls would be under by postponing the bar indefinitely. Like most law students, I’ve accumulated student loans over the course of my education. Under typical circumstances, law students can plan to forego income between graduation and the bar so that they can study, and can still have a job lined up after their bar results come back so that they are licensed attorneys before payments on their student loans become due.
Some loans repayments might or might not be deferred because of COVID-19. But based on the uncertainty of how long loans will be deferred for, as well as the uncertainty of how long we must wait before the bar can be safely administered, there is a very real possibility that student’s loans will come due before they have the opportunity to become licensed if the bar exam is postponed.
I understand that some individuals might advocate for the extension of the third-year practice rule by claiming that 3Ls can earn income during that intermediate time. But if 3L loans come due and students then have to take 2-3 months off from work to study for a future bar exam, then those exam takers would be placed under a financial burden much more significant than the current burden that students shoulder when studying for the July bar exam. Under typical circumstances students can plan multiple years in advance how they will meet their financial obligations while studying for the bar and awaiting their results. However, postponing the bar indefinitely would pose a significant burden on top of the general economic burdens imposed by COVID-19.
The current COVID-19 situation presents a number of challenges to administering the bar, and there is no perfect solution given current health concerns. However, the Supreme Court’s proposed order represents the best available option to make sure that 3Ls can meet their financial obligations, organizations are able to meet their staffing needs, and clients have access to the legal services that they need in these difficult times. The Supreme Court is doing the right thing with this order.
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.
As a May 2020 soon-to-be-graduate and applicant to the Utah Bar, I am grateful for the proposed solution. I plan to use this opportunity for weekly pro bono hours and to begin work at a nonprofit sooner. The proposed order provides some certainty where an uncertain bar exam date gives anxiety and has put my life in limbo (including my starting a family). I will be able to begin work as an attorney far sooner under this order. My work at the nonprofit will serve low income families, including those who have been impacted severely by the pandemic.
I agree on this emergency proposal (provided applicants fulfill all other requirements and qualified otherwise)
I think that the proposal is a great idea, and am in full support of the proposal.
I am currently a 3L at the S.J. Quinney College of Law at the University of Utah. The college of law provides exceptional legal education to its students. In 2019, 93.4% of the graduating class passed the bar with two years of graduation. I believe this shows that the U provides an exceptional education.
Beyond prior bar passage rates, the College of Law does more to prepare its students for actual practice work that would not be reflected in a two day bar exam. Since January, I have spent a lot of time preparing for the bar exam. This preparation has included memorization, reading outlines, writing practice essays, and answering hundreds of practice multiple choice questions. This is how one studies for and prepares for the bar exam.
In contrast, I have also had the opportunity to work as a law clerk for the DA’s office since the summer of my 1L year. As a 3L I have also participated in the criminal clinic, and worked on a number actual criminal cases under the supervision of licensed attorneys in the office. I have helped by doing legal research and motion writing in cases ranging from drug possession to homicide. Over the last seven months I have done five jury trials, wherein I did everything from jury selection opening and closing statements, and direct and cross examination of witnesses. Even now, with the ongoing crisis, I continue to perform my duties from home, writing motions and participating in team meetings over the internet.
I write about these two experiences to give a contrast to what will be more effective in preparing me for actual practice. Traditionally, I would spend 400 hours preparing for the bar. Memorizing and answering practice multiple choice questions. This is not what attorneys in actual practice do. Instead, the Utah Supreme Court proposes that upon graduation, students can work under the supervision of an experienced and licenses attorney for 360 hours. Nearly the same amount of time. For that time, instead of answering multiple choice questions, graduated students will work in the profession. For me, this means 360 hours working cases: writing motions, interviewing witnesses, and negotiating plea agreements. This means instead of memorizing rules that are not Utah specific, I will be in court, honing my trial skills and learning how to work as an actual attorney.
I believe that one of these experiences is significantly superior for preparing me, as a student, to practice law in Utah.
I am grateful to the Utah Supreme Court for their time and consideration. I am glad that the justices have determined that this is a better option for navigating the current crisis. I believe that the justices have identified the better way for graduated law students to not only learn how to be effective attorneys, but to show that we are prepared to enter the profession upon being licensed.
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.
From an outsider’s perspective, it seems that the bar is another way that students are asked to jump through the hoops of becoming good at test-taking rather than good at their profession. If the same ideas are taught and tested in Law School, why is another test needed? It seems like the real purpose of the Bar is to ensure that graduates have had a thorough legal education. But, a diploma from a qualified Law School should satisfy this concern. If there is large-scale suspicion or evidence that it doesn’t, why would studying and training to pass one additional test fix that fundamental failing in education?
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!
As a current 3L (and Qualified Recent Law School Graduate under the proposed order), I fully agree with Caleb’s comment. The pandemic has created uncertainty and unprecedented challenges for our class, including having to homeschool children and questions about repeated Bar exam delays or having to take time off later during practice to study for the exam. The Utah Supreme Court’s proposed order recognizes these challenges and trusts our applicant class to move straight into practice, with ample supervision. We are ready to rise to this occasion. Finalizing this order will ensure continuous representation for our future clients and allow us to begin working for the community almost immediately. I support the order and commend the Utah Supreme Court for its mindful response to this trying situation.
I agree with the above comment. These students should not face a delay in receiving attorney’s salary.
For Section 1.b.1., if it is the intention of allowing diploma privilege of 1st time test takers that graduated in 2019 or 2020, the May 1st time frame will limit 2019 graduates from being eligible for this. For example, BYU’s 2019 graduation date was April 25th, 2019 and would be prohibited by the May 1, 2019 requirement. I would recommend adjusting date to April 1, 2019 to encompass schools that have an earlier graduation schedule.
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 am concerned that the measures, as currently articulated, may prejudice small law firms and solo practitioners who are seeking to hire their first associate, in two respects. First, the 7 years of practice metric is too long and should be reduced to 5 years. Second, I suggest clarification of the “supervising attorney” role that would allow supervision by a lawyer outside a small firm, if that small firm has no attorney that qualifies (i.e. no lawyer who has been practicing for more than 7 years).
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?
As a third year law student at a school that has had a pass rate over 86 % for each year in the last 4 years other than 2019 when it was 85%, I would advocate for a less focused view on a specific percentage, or that the order be modified to continue with the July administration for all elligible applicants who choose not to, or are unable to fulfill the requirements. If it is true that the vast majority of applicants are from BYU, UofU, or would qualify anyway for the program, then it should be possible to perform the bar exam as planned and social distance the takers since there will be significantly less taking it. I have no fear of not passing the bar, as i am almost 20% complete with my comercial bar prep course, and it is not even May yet. I have already taken my school’s bar prep course as well, and students that have taken bar prep at my school have over a 90% first time pass rate. I would prefer to qualify to receive my liscense by supervised work because I have a very small firm that has offered me work already, that has a lot for me to work on, but would NOT be well served by an extension of the 3rd year practice rule because there are only two full time attorney’s so it is almost 100% duplicative if one or the other must be at all hearings I attend that have even a Class A misdemeanor tied to them indefinately until the fall or even worse February. That is not a good use of client funds indefinately in this time of difficulty, nor is it really even feasible. If I qualify, my hiring attorney has already told me I can work intensively under him for two straight months to get the hours. That would prepare me much better to serve our indigent clients (the firm handles conflict contracts for the county public defender’s office) than any hours spent cramming for the bar. I will be between 75% and 100% complete with my bar prep course by graduation anyway on my current trajectory.
Again, I am happy to take the bar exam in July with much smaller test group made up of those that don’t qualify, or for the qualifications to be relaxed and allow to obtain liscence via apprenticeship. I could take the exam later as many have suggested, but it would likely not serve my clients best for me to have to re study generic principles of law at that point, some of which are generally true on a nationwide scale, but applied differently in Utah anyway because of our local case law. Reciprocity is not as big of an issue as it has been made out to be, because the exam can be taken later for cross admission as is required for a number of attorneys entering utah anyway.
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.
While I am sympathetic to the difficult situation that graduating law students face during this unprecedented time, I strongly oppose this proposal. In doing so, I echo many of the concerns that I have seen brought up in the comments above.
First, I have concerns about the prejudice that lawyers who are admitted to the Utah Bar in 2020 will face. I have taken the time to discuss this proposal with many people (both attorneys and non-attorneys) over the past few days. The most common response has been laughter and a comment reflecting the idea that if they ever need to retain counsel, they will take steps to make sure that any potential lawyer they are looking at did not graduate in 2020. The fact that the public and potential clients would not trust 2020 graduates is concerning to me. While I’m sure that many 3Ls are eager to skip the Bar and quickly get on with their legal careers, they may not yet realize the stigma that they will be carrying with them if this proposal passes.
Next, I’m concerned (as a new attorney myself) about the effect that such a decision will have on Utah’s reciprocity with other states. From my brief research on the matter, it seems like Utah is essentially the only state right now considering this rash option. I would really prefer that Utah lawyers not be looked at as “secondary” for lowering our standards and waiving the Bar exam.
In addition, I’m one of the people who actually believes the Bar exam has a benefit on one’s legal practice and education. This may be an unpopular opinion, but I actually learned a great deal during the hundreds of hours that I spent studying for the exam. I think, as a test of minimum competency, it’s a necessary evil. And at the end of the day, people do fail the exam. Believe it or not, it’s extremely easy to pass law school. You have to almost try to fail out of your classes. It’s not so easy to pass the Bar exam. Should we really allow an entire graduating class to skip this requirement? I know that many commenters have emphasized that they learn much more from internships/externships than from simply memorizing principles in books and lectures. However, I for one learned a great deal during my school and Bar studies. These things have helped me during my first year as an attorney. Moreover, I also think that it will be hard to monitor which people are actually doing “good” attorney work during their 360 hour requirement. I would prefer for an entire class to not be rubber stamped into the field of law just because they worked a certain amount of hours.
Finally, I’m also concerned about the problems with the proposal as currently written, which have been detailed by many other people in these comments. If this proposal really is going to pass (it should not), then it needs to be fairly applied and take into consideration attorneys coming in from other states, people who have sat for the Bar exam before, people from law schools with lower Bar passage rates, etc.
I have seen many comments applauding and commending this proposal for being a “creative” solution to the current situation. With all due respect, I do not think that cancelling the exam completely is creative. I think it’s rash. The Bar exam is still months away, and the coronavirus curve is already showing signs of flattening (with much lower numbers projected in Utah than we had originally feared). All this being said, there are many other options to consider: extending the 3L practice rule, postponing the Bar exam for the fall, offering temporary licenses with a requirement to take the Bar exam in the future, holding the exam in multiple locations with students spread out 6+ feet, holding the exam remotely, etc. I strongly recommend that the Utah Bar put together a committee to come up with a truly creative solution that does not resort to such an extreme measure.
When I was sworn into the Bar last October, I felt such a sense of accomplishment and pride in myself. It was one of the best days of my life. I wish for every law student graduating this year to experience that feeling as well. I do not think that simply graduating from law school and working for 360 hours would have given me that experience.
Let’s not be afraid to maintain a high standard for those entering the legal profession here in our state, even in these challenging times. Please reconsider this proposal.
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!
I support the proposed order. It is not a perfect solution, but I believe it is a thoughtful, compassionate response to the conditions created by the pandemic.
I am a graduating 3L. I already know what type of law I want to practice once I am a licensed attorney, and I feel that 360 hours of supervised work in that field would be much more useful to my professional development than the process of studying for and taking the bar exam.
I understand that aspiring attorneys need to prove competency before joining the bar, but in my view, the bar exam is not the only way to measure this. As long as there is a mechanism for ensuring accurate and good-faith reporting of each applicant’s supervised work, I believe the system proposed here would be an adequate substitute for the exam.
Finally, I appreciate the Court’s willingness to explore alternatives to the exam, given the moving target that would be created by delaying it indefinitely. This order is a fair compromise for this year’s graduating class, and it should start a conversation about how to evaluate future classes. I encourage the Court to finalize the order as it is now written.
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.
BYU, Harvard, University of Chicago, Cal-Berkeley, Yale.
These are the Law Schools that the Supreme Court Justices graduated from…It’s a very impressive list of intellectual Universities, which is why I’m confused of how such a good set of brains working together could come to such a stupid, idiotic, asinine idea.
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.
The measures and procedures outlined by the Utah Supreme Court constitute a fair, measured, and timely response to the unprecedented situation in the country and the world.
Rule 1.1 of the Rules of Professional Conduct requires that a lawyer have or acquire the necessary knowledge, skill and competence to accept representation of a client/matter, or to associate with another lawyer with that knowledge, skill and competence. The Supreme Court’s proposed Order reiterates that requirement, and reinforces it with the 360 hours of supervised work.
Law school is a comprehensive legal education that prepares students to be lawyers; but education, learning, and honing the skills of being a good lawyer are an ongoing, career-long endeavor. New lawyers are generalists, with much to be learned; and most continue into a focused area of law practice, continuing to learn and hone skills and gain knowledge in that more narrow area of the law. Because of the changing nature of the law, through statutes, rules, and court rulings, lawyers must continue to learn, adapt, and sharpen their skills in their focused practice.
Law students have worked through three years of law school and four years of college, to prepare for a legal career. They have learned the basic skills to practice law (and it is truly practice). The bar exam, while being a continuation of training, is perhaps as much an exercise in memorization and test-taking as a learning process. These are skills learned through the post-secondary education of these new graduates, and while there is always more that can be learned through study, these new lawyers will continue their education through the supervision set forth in the proposed Order. It is my belief that most lawyers (myself included), if asked to sit for the bar exam today, would not pass. In actual law practice, the memorization and broad-but-shallow learning is less important than the experience and ability to work through problems – skills grown and refined through experience.
The bar exam is a rite of passage, and while it may continue to be an important culmination to a legal education, in this unprecedented time, supervision and oversight by a licensed attorney can and will act as a reasonable substitute, allowing these students to move forward in their legal careers, to help serve the legal needs of the community.
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.
I am a licensed attorney in the State of Minnesota, and was planning to sit for the Utah Bar in July. This pandemic is destroying livelihoods, MY livelihood. Figuring out a way to HELP a group of people struggling to survive is an appropriate response by the Utah Supreme Court. LIMITING this to only the recent law graduates is a mistake and would be cruel to many of us needing to be admitted to the Utah bar. Graduating law school is not NOTHING. 360 hours working with an established attorney is not NOTHING. Now is the time to be overly inclusive, overly compassionate, overly helpful. Waiting at the window, not being allowed in is devastating. I am 46 years old. I have a job waiting in Utah. I am holding onto that job by the skin of my teeth. For the Utah SC to put limits on those who qualify for this order would be wrong. Their motive is right, now is the time to help EVERYONE. We are all hurting.
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.
My main concern with the proposed order is that it fails to adequately address the uncertainty faced by graduating law students.
The paradigm under the Bar Exam model is that one demonstrates competency, gets licensed, then begins working. Now, whether the Bar Exam demonstrates competency is an open debate, but with the pass rate standard as written in the proposed order, it would appear that the UT Supreme Court is relying on the competence demonstrated by completing a course of study at the handful of law schools whose graduates would qualify. I can’t imagine the number of students that would initially qualify under the order is more than 200.
However, what the proposed order does is shifts the paradigm to demonstrate competency (by graduating from a qualifying school), begin working, then get licensed. While this paradigm may create a better lawyer, it does not address the stated goals of the emergency order. Those students that already have jobs in Utah will be fine, so in some ways their uncertainty is decreased. However, there is a not-insignificant number of applicants who do not have a job as of yet, but at the very least had the certainty of a clear path to licensure. Now, those students are being told that if they want a license to practice law in Utah, they must either get comfortable with uncertainty or do what they have heretofore been unable to do, find a job, which is more uncertain now than ever. Additionally, there are students who have jobs but those jobs would take them out of state, such as clerking or working for the U.S. Military. For these students, they are told that the security they thought they enjoyed in the employment arena has vanished, and that if they hope to be licensed they must put those jobs on hold while they find at least 360 hours of employment in Utah before starting their careers. For these two groups of students, the emergency order only increases the uncertainty in their lives.
If the goal is to ensure that new lawyers receive adequate training, the majority of these new lawyers were already going to be formally trained and supervised during that training, since law school does not necessarily teach one how to be a practicing attorney. Those few that were not already going to be receiving on-the-job training would seek out training and mentorship in other ways.
What the proposed order currently does is take advantage of crisis to experiment with a new approach to licensure in Utah. It moves the goal posts for the most recent batch of law school graduates, and only relieves uncertainty for those that already had less uncertainty than their peers, while increasing uncertainty for the rest.
If the general public needs assurance of the graduating class’s competence, then they will rely on what they have relied on to this point: reputation of firms and word of mouth. Because every legal institution has innate motivation to maintain their reputation for quality work, they will ensure, as they have done for all time, that their new-hires meet their standards. It should be for individual institutions to determine how best they want to maintain quality, as one size does not necessarily fit all.
Therefore, I fully support Diploma Privilege. I am less supportive of the redundant supervised practice portion of the order, but could be brought around on it if the hours were cut down or, at the very least, if some of the requirements for supervising attorneys could be modified to at least not harm those who were hoping to clerk out of state or serve in the U.S. Military.
I agree that some of the requirements would be burdensome on recent law school graduates who are entering military service. Depending on when these graduates begin training, they might not be performing legal work until after the December 31, 2020 deadline has passed for completion of the supervised practice hours. Additionally, it might be difficult for the military to pair Utah-licensed supervising attorneys with incoming law school graduates.
I am a current 3L at the S.J. Quinney College of Law and an applicant to the Utah Bar. As a mother of two children under three years old, I support the proposed order. The proposed order shows a tremendous amount of wisdom and compassion from the Utah Supreme Court and should be supported by the legal community.
For me, taking the necessary 400+ hours to study for the bar exam is a near impossibility in our small apartment in which there is nowhere to study in private and our 3-year-old and 6-month-old are in constant need of attention. Since becoming a parent and especially one in pursuit of a career as an attorney, I have lived by the African Proverb: It takes a village to raise a child. I have relied on our community’s wonderful educators, daycares, babysitters, friends, and family to help me raise my children. With the ongoing COVID-19 pandemic, I can no longer rely on my village. This proposed order shows support for parents, especially mothers.
It is hubris for other states to think they can offer a bar exam any time in the next 18 months. Experts are not able to predict when the pandemic will be completely over. The proposed order shows humility and wisdom on the part of the Supreme Court.
For the same reasons studying for the bar exam without childcare would be difficult, 360 hours of supervised practice might also prove difficult. Completing the supervised practice hours will not be an easy task for parents with young children as long as the pandemic renders our childcare options unavailable and unsafe. However, the supervised practice hours will be more flexible and can be accomplished with a piece-meal approach. The supervised practice hours are also more valuable and useful for both the would-be attorney and the community in need of legal services. This is an adequate and perhaps superior substitute for admission the bar. I have interned in public-interest offices as a judicial extern, in a municipal government, and currently at the Office of Guardian ad-Litem. These experiences have qualified me as a lawyer ten-fold what studying for an arbitrary bar exam would do. Completing the supervised practice hours is a better standard for incoming practicing attorneys than a standardized test.
The supervised practice component of the proposed order also creates an opportunity for more pro-bono and low-bono work. I am hoping and planning to complete my supervised practice hours working in public interest and pro-bono legal work. This is an opportunity I would not have if I had to spend those hours studying for the bar exam.
Those who are opposed to the proposal seem to be making snap judgments lacking the research and information regarding both the outcomes of the bar exam (hint: it’s not that effective in creating better lawyers) as well as thinking through the individual scenarios of applicants to the Utah bar who will be affected negatively by COVID-19 pandemic. I think we would be hard-pressed to find a group of people who has given more thought to this decision than our Supreme Court and the folks advising them.
This pandemic has created a chance for us as a society to reevaluate our current practices: the way we expect parents to work and create unrealistic boundaries that put work above family; our country’s socioeconomic, geographic, and racial disparities; the level to which hunger and abuse affect our children and women; and here, how standardized tests and the bar exam, in particular, are problematic for minorities, women, and people who are poor. Many are excited for life to go back to “normal” after the pandemic is over. I hope it does not. I hope our world changes for the better. This is one such change.
I agree with the BYU’s law school dean, who told the Deseret News: “[S]tandardized tests, and the bar exam, in particular, have problems in filtering out negatively certain groups…Minorities, women, people who are poor, or those who don’t have the ability to take three months off from work and study full time, or those who have other reason may be disadvantaged. And most of those disadvantaged people are the people who can fill the access to justice gaps. We may be putting up barriers to the very people who can help us solve these problems.”
If this proposed order (or some version of it) does go through, I have hope that smart, respectful attorneys will withhold judgment about the abilities of the class of 2020. We have the same amount of control over this decision as you did when someone decided you had to take the bar exam. Let us prove who we are before you assume we are all incompetent because we happened to graduate law school during a global pandemic.
It seems self-serving, biased, and almost absurd to grant this provision to BYU and UofU students solely on the opinions of their deans and historical passage rates while totally ignoring the preparation and ability of those from other highly reputable institutions. If a provision is made it should apply to all who are registered for the upcoming exam or no one at all.
Brett’s is an excellent point. I do not think the Utah Supreme Court should implement a policy which has disparate impact.
My only comment is that this benefit should be offered to everyone sitting for the bar. A mentoring program will actually better prepare new attorneys for their careers in the law.
While I agree something should be done to accommodate lawyers seeking licensure in Utah, permanently suspending any examination is shortsighted. I’ve been grading bar exams for about a dozen years. From that experience I can tell you most people are competent and proficient, but a good portion are not. And giving a license to this latter group will only hurt our profession. Incompetence, poor judgment, etc. ultimately mars the bar’s reputation and undermines the trust our public places in us. The bar exam is the means of ensuring everyone is qualified to do the work of a lawyer. I can’t imagine seeing a doctor whose knowledge and proficiency wasn’t tested through board exams. Are the problems, rights, and liberties presented in the legal arena of any less importance?
The better approach would be to grant a provisional license for those already registered for the July bar exam and require the applicant sit for the exam within the next year. These same applicants could work under the direction of an experience attorney. This approach also would not ignore the group of experienced, competent lawyers already licensed in other jurisdictions but wish to become licensed in Utah.
Dear Justices of the Utah Supreme Court:
I fully support your proposed measure to allow May/June 2020 graduates to become members of the Utah bar by way of an apprenticeship. This has been an extraordinary and extraordinarily difficult semester for our law students, who have all worked hard for three years only to have their potential careers placed in limbo by a world pandemic. Your alternative to a bar exam that takes place over a few days — 360 hours, or nine 40-hour weeks of supervised work — is a fair and well-grounded alternative that allows these students to begin their careers without jeopardizing their own or others’ health, even lives. Your proposed solution would also remove the anxiety-inducing uncertainty that currently haunts our third-year law students as they still work to finish their courses and graduate.
I acknowledge that your proposal does not deal with all of the issues regarding this year’s bar exam and the many categories of people who were hoping to take it. However, it does help the largest group of examinees, the graduating students here in Utah who have not yet had ANY opportunity to enter the legal profession despite successful completion of law school. I thank you for your willingness to deal productively with the emergency conditions we all face and encourage you to finalize this option as soon as possible.
Robin Kundis Craig
James I Farr Presidential Endowed Professor of Law
University of Utah S.J. Quinney College of Law
First, I applaud the Supreme Court for their willingness to adapt in these uncertain times. Nothing is normal right now, and any attempt to adjust for the greater good should be appreciated.
Second, I am a graduating 3L and am happy to do whatever it takes to prove that I am practice ready. We all have registered and have planned to spend the coming months studying and preparing. I am fortunate to have a spouse with a secure job and don’t have to worry about finances. However, many of my classmates worry about keeping the lights on and putting food on the table. If the Supreme Court, with all of their combined experience practicing law, believes that 360 supervised hours will have the same effect as a bar exam, then I am in full support.
Third, I am moving to work as a clerk in federal district court in Nevada. I will try to complete my 360 hours of supervised practice before moving, but I believe working for a federal judge, regardless of what state he is barred in, should count toward the required number of hours. The work will be largely the same in Nevada as it would be if I were working at a firm in Utah. I will still be researching, writing, applying the rules of evidence and civil procedure, participating in arguments and trials, and more. I would expand the order to include federal judges to the list of supervised attorneys, regardless of what state they are licensed in.
I appreciate the attempts to move forward during these stressful times.
A change like this requires more study, and less permanence accorded it. A complete departure from a Bar Exam requirement should not stigmatize this graduating class for the purported convenience a world-wide pandemic has inflicted. The diploma license should be granted, but conditional, up to and including the graduate’s taking advantage of the first Bar Examination opportunity and passing.There appear to be no serious arguments about not holding the Bar Exam in July. And I admire the zealous advocacy of the Deans of the Utah and BYU law schools to help their upcoming graduates who plan to practice in Utah to get working as soon as practicable. I also agree that a Diploma license should be provided to those recent graduates who have timely applied for admission and fulfilled all other requirements for admission to the Bar so that they can go to work and start honing their legal skills. But that should apply to graduates of any law school, and not merely those whose passing rates are higher than 85%. I respectfully submit that the graduates, the Bar, the public, and the courts will not be served by eliminating the Bar Exam requirement, even for one graduating class, and perhaps particularly for one graduating class, for the following reasons in no particular order:
– The only “protectionism” inherent in requiring a passing Bar Exam is to protect the public. Passing a Bar Exam isn’t hazing, it isn’t designed to artificially limit the number of people licensed to practice law, for economic or other illegitimate reasons. The Bar isn’t intended to be an exclusive and limited club, particularly in Utah where the passing rate is relatively high. It has been and remains a very reliable means of ensuring that graduates to whom the State tells the public they may trust their affairs have a minimum level of competence irrespective of where they went to law school, and irrespective of their grades there.
– While the Utah Supreme Court has a very legitimate interest in making legal services more accessible and affordable to the public, the public expects and is entitled to a minimum level of knowledge and ability to analyze facts in light of general legal principals, which not all graduates of law schools have.
– A line has to be drawn somewhere, just as it is in law school. The Bar Exam is a great leveler, weeding out graduates from law schools with great passing rates who nevertheless do not have a sufficient command of the materials, and giving opportunity to graduates of schools with lesser passing rates to show their mettle, notwithstanding failures of their graduating peers.
– The Bar Exam is not discriminatory. Knowing the elements of crimes, of torts, the tenets of property and contract law, etc. are a function of study, and not gender, race, etc. Otherwise where can the line be drawn? At law school admission? Law school curriculum? ABA standards for accreditation? No, the integrated Utah State Bar, the Supreme Court, a nationally recognized and adopted multi-state exam and hundreds of volunteer hours by practitioners are best suited to pass on qualifications to practice law in Utah.
– A Diploma-only rule will place in the hands of faculty and deans of private and public law schools the decision of whether someone can be licensed. That’s currently 201 different grading bodies, whose standards and curricula are very different from one another.
– Who is to say that only ABA accredited schools should be the only gatekeepers for getting in the first door?
– Drawing a line at an 86% passing rate for a qualifying law school ensures BYU and Utah graduates will slip through, but does the Court really want to discriminate against graduates from schools whose collective passing rate is just a bit lower? Should law school graduates suffer because a higher percentage of their peers haven’t passed a prior Bar, and thus they are denied for reasons other than their own merit?
– By setting a standard at 86% passing rate for prior Bars, the Court is necessarily acknowledging the legitimacy and reliability of prior Bar Exams.
– Not all law schools are equal, and not all law school graduates are equal. The Bar Exam tests on a variety of subjects deemed across the country, and in Utah, to be essential to qualify someone to have others’ legal rights in their hands. Not all of those subjects are required by every law school. The Bar Exam requires that a graduate further study and gain an understanding on essential topics before taking the Bar Exam.
– These particular graduates who choose not to take and pass a Bar Exam will be permanently stigmatized, with an asterisk by their names. And what of those who go this route, choose to take the Bar Exam, and fail it? They will continue to practice law in Utah under the Diploma rule, but now will have a lesser standing than those who choose not to take the Bar Exam.
– The deference and mutual respect accorded Utah Bar members by the Bars of other states will be diminished particularly towards the 2020 graduates. In a society where transactions and commerce increasingly cross state lines, the reciprocity and mutual respect accorded by other Bars will now require differentiating among those Utah Bar members who have passed a Bar Exam, and those who have not.
– Ultimately requiring a pass on the Bar Exam, but in the meantime providing a conditional license to practice law will not hurt the employment prospects of these coming graduates. All of the time they would put into studying for the Bar in July can be found later, closer in time to when a Bar Exam is ultimately offered. Thus they will devote more time to practicing law this Summer than they otherwise would have, which could even enhance their prospects for ultimately passing the Bar Exam when they do take it.
– Utah does not have to lead out on every departure from what are tried and true means of assuring the public that people who are licensed to practice law have earned the right to that trust. There are likely very good reasons why all but Wisconsin have retained the Bar exam requirement, at least thus far.
– Not all graduates will have ready access to a lawyer mentor willing to devote the time to supervising hundreds of hours of “practice”. Thus the proposed rule will favor graduates going to “lawyer-rich” environments like law firms and government offices, and hurt those who do not. That isn’t fair to anyone.
Thank you for considering my, and others’ comments.
I write to express my concern with the Emergency Proposed Order. I agree generally (if not fully) with the views expressed by Mark Morris, David Leta, and others. Like them, I am concerned by the Emergency Proposed Order’s proposed solution to an unquestionably intractable problem. I have read the many comments on this page, and the Statement that accompanies the Proposed Order. This is a subject on which reasonable minds can — and obviously do — disagree.
We are living in an unprecedented time. And it calls for an unprecedented solution. But my (hopefully) reasonable mind submits that the Proposed Order goes too far. In the balancing of various interests and concerns, I would strike the balance differently. I have no issue with allowing “diploma privilege” for a temporary season. That allows recent law school graduates to begin their careers without delay caused by the pandemic. I would, however, require 2020 graduates to sit for and pass a bar exam within 2-3 years of beginning practice. This extended grace period will both allow the pandemic to run its course and afford 2020 graduates flexibility to determine when it is best for them to study and sit for a bar exam. With that flexibility, they can accommodate the needs of their clients, employers, and others.
The approach I’m suggesting is not novel. It is suggested by a number who have commented on this electronic page. And, from my perusal of multiple media reports, many (perhaps most) states are responding to the COVID-19 crisis by delaying — not eliminating — the bar exam requirement. As the Court is undoubtedly aware, a recent ABA Resolution urges “bar admission authorit[ies]” to postpone the requirement of a successful bar examination and couple it with supervised practice of the kind proposed by the Emergency Proposed Order. However, the ABA Resolution urges authorities to require that “the applicant take the bar examination by the end of 2021.” I submit that the ABA Resolution has it mostly right. I would allow applicants the latitude to take a bar examination by the end of 2022 or 2023.
I appreciate the Court’s careful attention to a difficult problem. I respectfully suggest that the Court reconsider waiving altogether the bar exam requirement for 2020 graduates.
My comment is specifically with respect to the hourly requirement period. I think that it would be beneficial to at least consider allowing the hours to “start” accruing for any of the 3Ls participating in an externship or clinic experience where they engaged in practice under Rule 14-807. Understanding that there needs to be a clear line of when hours can and cannot count to ensure that students aren’t reaching back to their 1L year to accrue time, specifying that the hours were completed post-graduation has only a detrimental impact on students who otherwise have been practicing under the same rule that would apply here.
The time frame would be limited to the 3rd year of law school, would make it clear when hours start to accrue and allow students who have already put in significant time and effort in practicing under the supervision of experienced practitioners to put their skills to use early. This would also increase their ability to acquire or retain employment from employers who may otherwise not be able to hire them on as attorneys under supervision for the period of time it would take to meet the hour requirement.
In addition, allowing students to count the hours they put in under the third-year practice rule is beneficial not only to the students but also to communities who are likely facing unprecedented legal issues at this time. The sooner students are able to join the legal workforce, the greater access to justice there will be for the populations a lot of law students are hoping to serve.
Of note, this will be of no benefit to me as a student, because I will be sitting for the bar in a different state. But, as someone who could have benefitted from this, with many classmates who would benefit by being allowed to count externship hours from their 3rd year, I think it is important this course of action be considered.
Otherwise, I think the diploma privilege will have only a positive impact on the future members of the Utah bar. It will allow each person who is seeking admission to gain real experience as a future attorney under the guidance and supervision of an experienced practitioner. I believe the experience gained practicing under supervision will speak far more to the ability to practice law than the formal bar exam does at this time. What makes me feel prepared to become a full-time practicing attorney are the many hours I have spent in the different externships and clinics I have participated in during law school.
I am grateful for the work and thoughtfulness that has gone into this proposed order. I can only imagine what a weight off the shoulders this is for many of my classmates who are particularly impacted by the current situation we are all in.
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.
The solution is very simple:
1) Allow new graduates to work under a limited license (much like Rule 9 in the State of Washington) and let them take the Bar Exam within the next 24 months.
Assuming the above is not being considered, a licensed attorney in any other state should likewise be able to apply for admission without taking the bar exam, so long as that attorney has more than, say, five years in practice. It’s ludicrous to think that, for example, a California-licensed attorney with 15 years of experience is less qualified than a recent graduate. Absolutely mad. Frankly, that should be the standard anyway.
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 agree with the Order. I think it is unreasonable to expect a student to study while also taking care of children since daycares and schools are closed at this time. I also don’t think a test is the best way to evaluate the skills a potential lawyer(or any other profession) needs to be successful at their job. There is no substitute for work experience.
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 surely understand your statements. This is not directed at you, so much as it is directed to your argument, which has been made in numerous comments.
I am leery at using the economic conditions of the pandemic as a justification for diploma admission to the bar. I have already commented, urging the Court to require more than the 360 hours (which is actually less than hours than that required by a nail technician). But would it have been justified to allow attorneys that attended law school from 2009 to 2013, during the Great Recession, to be admitted to the bar simply because of the difficult economic times? Like you pointed out, during that period, many graduating students had bills to pay and families that depended upon them. Firms were rescinding job offers and not hiring clerks. As a graduate during the worst economy since the Great Depression, I understand the economic conditions. In fact, my only job offer was as a judicial clerk for an appellate court.
Rather, I would dare say that requiring some increased measure of competency, either through a postponed exam or a longer supervisory period, is a necessity during struggling economic times. It is not just law students that have financial needs; a record number of individuals have filed for unemployment claims (though technically, the unemployment rate was still nearly three times higher in the Great Recession). More individuals will be in need of legal services, whether bankruptcy, divorce, or some other need. These individuals will have little disposable income if any. As a result, they will turn to “cheaper” legal services, which have a tendency to be provided by those attorneys that are less experienced (read new graduates). The influx of cases combined with the low required supervision hours are a recipe ripe for disaster. Law school generally does not teach you how to “practice” the law. It teaches you rules, theories, and policies behind the law, but with few exceptions, it does not teach you to practice law. My concern is that these new admittees take on too much too soon and subject themselves to bar discipline. If you’re worried about providing for your family now, consider the possibility of doing so after being disbarred from the practice of law but still being required pay back your student loan.
April 13, 2020
The Honorable Chief Justice Matthew B. Durrant
The Honorable Associate Chief Justice Thomas R. Lee
The Honorable Justice Constandinos Himonas
The Honorable Justice John A. Pearce
The Honorable Justice Paige Peterson
Re: Proposed Order on Emergency Modifications to Bar Admission Criteria
Dear Chief Justice Durrant, Associate Chief Justice Lee, and Justices Himonas, Pearce, and Peterson:
As the immediate past dean of the University of Utah, S.J. Quinney College of Law, and as a member of that institution’s faculty for nearly 26 years (following 15 years of full-time law practice), I write in strong support of the Court’s carefully tailored proposed Emergency Order regarding bar admission for qualified recent law school graduates. I appreciate the Court’s efforts to consider this important issue so thoughtfully, and to seek timely public comments.
Because the Court has already worked with members of the state’s two law schools and other experts to consider these issues, I will only touch briefly on most aspects of the merits of the proposed order. Then, in further support of the Order, I will address in somewhat more detail my professional views regarding the value of the bar exam relative to other indicia of law graduate competence to practice law.
Briefly, the Court’s proposed Order is appropriate and carefully tailored to the current public health crisis for the following reasons:
• An entire graduating class of law students, having worked extremely hard to meet all law school graduation requirements over the past three years, is facing an unprecedented delay in their ability to practice law. The reasons for that potential delay were entirely unpredictable and involve a crisis over which the students obviously have no control (and for which they bear no blame).
• Those students face significant personal, financial, and professional hardships in ways that cannot be mitigated absent an emergency order of this nature. Over my academic career, I have worked with hundreds of law students who were able to juggle academic with family and other responsibilities only because they had the opportunity to secure gainful and rewarding professional employment upon graduation. Denying that opportunity to this graduating class could cause significant hardship to many students and their families.
• Utah continues to face a critical access to justice gap, as the Court knows given its equally valuable work on that issue. Under the auspices of the proposed Order, including its provisions for supervised practice, recent law graduates can contribute to efforts to meet those critical needs during a time when large portions of Utah’s population will face even greater unmet legal needs (evictions, foreclosures, collections, pressing family law issues, etc.). Those practitioners are then more likely to retain the culture of pro bono service throughout their legal careers.
• The proposed Order is appropriately tailored to the circumstances of the current crisis. It is limited in time relative to the ability to administer the next bar exam consistent with public health needs and circumstances. Although any numeric cutoff (the 86% rule) is necessarily difficult to set, it defines the class of eligible practitioners based on rational criteria designed to ensure competence to practice law.
• Part III of the proposed Order would impose appropriate interim limitations on the practice of law. In particular, the supervised practice provision appropriately augments the existing New Lawyer Training requirement during the initial period of authorized practice.
Notwithstanding these compelling reasons in support of the proposed Order, some members of the practicing bar believe that a written bar examination is an essential final check on competence prior to allowing a law graduate to practice law. Having practiced law for 15 years before entering academia, having passed bar examinations in two jurisdictions (and been waived into practice in others), and having taught law students for more than a quarter of a century at two Tier I law schools (University of Virginia as an adjunct faculty member and University of Utah as full-time faculty), I question the accuracy of that assertion.
Like any examination or other assessment method, the bar examination is an inherently imperfect tool. It relies on a massive, timed multiple-choice examination covering a large range of material to test basic knowledge and understanding of three years of law school information, followed by series of timed written essays and a timed practicum. Multiple-choice methodology is an imperfect measure of attorney competence and success, regardless of how well the National Conference of Bar Examiners designs the exam. Indeed, there is evidence of some systemic bias in this and other standardized exams. Some students are skilled at taking this kind of test. Others struggle with standardized exam methodology, despite having excellent knowledge and understanding of the material, often for cognitive reasons that bear little relation to their ability to practice law under real-world conditions. Likewise, although real law practice inherently involves deadlines, it is exceedingly rare that one needs to evaluate and analyze a problem, and write an “answer” to that problem, in roughly an hour-long essay period. Under the vast majority of law practice circumstances, if one forgets a discrete point of law or procedure among the ever-increasing body of “law” to master, it can be researched quickly and accurately. Someone whose brain works proficiently but more deliberatively than others can draft a superb brief or other legal document over a longer period of time than is tested under exam circumstances. In my view, the skills needed to research particular issues of law efficiently and accurately, and the judgment needed to apply that law wisely to particular circumstances, are far more critical to the actual practice of law than the ability to memorize information and to reproduce it under the timed conditions of 2 ½ day exam.
To be clear, these critiques taken alone do not suggest that a bar examination is worthless or irrelevant as a final check on law graduate competence under normal circumstances. That debate can continue at another time. Rather, they suggest that the bar exam itself is inherently both over-inclusive and under-inclusive as a methodology for testing competence to practice law. One applicant might be superb at the necessary exam-taking skills, but lack the kind of sound judgment, client focus, or other skills necessary to make a good lawyer. Another might possess those critical lawyering skills but struggle with examination methods. Thus, even with our historical practice of relying on the bar exam to assess competence, we necessarily admit some attorneys who are less qualified to practice law and deny admission to some applicants who might be superb lawyers. (The remainder fall somewhere in the middle.) We then rely on our longstanding system of attorney monitoring and discipline to address any admissions that turned out to have been problematic.
Given this realization, the critical question for the Court in considering whether to adopt the proposed Order is not whether the bar exam is a perfect or even a good tool to assess attorney competence. The correct question—particularly under the exigent circumstances we face—is whether the conditions that would be imposed during the Order’s proposed interim practice period constitute at least an equally valid means (as the bar exam) of ensuring law graduate competence.
Considering the problem in this way, the proposed Order includes conditions that are as or more valid as the bar exam in assessing the competence to practice law. The supervising attorney will observe and evaluate the applicants over a much longer period of time than is possible in a bar examination, and under actual practice circumstances. They will assess the applicant’s ability to ascertain what legal knowledge is needed to represent and counsel a particular client under particular circumstances, and their ability to understand and apply that information effectively. (By contrast, the bar exam merely tests information and abstract analysis, recognizing that the applicant has crammed much of the material to reproduce under timed exam circumstances.) Attorney supervision will combine formative and summative assessment methods in ways that are likely to produce even better-trained and better-mentored attorneys. We can leave for later discussion whether the assessment methods included in the proposed Order are actually superior to the bar exam in assessing new law competence. Each method probably has some advantages and some disadvantages relative to the other, but neither our current method nor the proposed method is likely to be perfect. As to the critical issue facing the Court under these exigent circumstances, it is sufficient to conclude that the proposed Order contains at least as valid a method as the bar exam for purposes of evaluating competence to practice law.
Finally, having taught law school for 28 years (including two years as an Adjunct Professor at the University of Virginia), nearly a decade of which has included service as Associate Dean for Academic Affairs and as Dean, in my opinion current law graduates from the S.J. Quinney College of Law, and from many other excellent law schools, are better trained and prepared to practice law than at any time in the past. During my years on the faculty, I have witnessed continuous improvement in our curriculum, particularly in our efforts to blend instruction and training in legal doctrine, theory, skills, and ethics rather than inappropriately exalting any one of those teaching goals over the others. In addition to a strong basic doctrinal curriculum, we have an extensive and superbly supervised program in practice skills through a combination of simulation training courses and live client training. Through my interactions with other law school deans, associate deans, and faculty members, I know that similar improvements have been made at law schools throughout the country.
Therefore, the Court’s proposed Order will pose an extremely low risk of admitting poorly trained and qualified attorneys. More pertinently, it poses no greater risk than is true under the current system, which is also inherently imperfect. As is true under the current system, procedures remain in place to discipline or, in appropriate cases, to disbar those who do not meet the high standards of the legal profession.
Thank you again for this opportunity to comment on this proposal.
Robert W. Adler
University Distinguished Professor of Law
University of Utah, S.J. Quinney College of Law
383 South University Street
Salt Lake City, UT 84112
“Although any numeric cutoff (the 86% rule) is necessarily difficult to set, it defines the class of eligible practitioners based on rational criteria designed to ensure competence to practice law.”
Come on, just say it how it is instead of trying to justify their decision because it benefits all of your students at your law school, they literally took the precise number that made it so that BYU and Utah would both qualify for the diploma privilege while keeping the most out-of-state law recent graduates from qualifying.
I support the proposed rule for the reasons so articulately stated by Dean Alder. Extraordinary times call for extraordinary measures, there are sufficient safeguards built in to assure this crop of lawyers will be competent and qualified to practice.
In support of Dean Adler’s statement, I would like to submit my story as a case example.
All my life, I have struggled with standardized exams. And yet, I graduated from high school with a 4.0. I graduated with Honors from the University of Utah with my Honors B.S. degree in Biomedical Engineering.
This past year, I graduated from the SJ Quinney College of Law with the following accredations and experience:
– Graduated with Honors;
– Utah Law Review Executive Footnotes Editor;
– Giles Sutherland Rich Moot Court State winner and Regional Semifinalist. Award for Best Team Brief, Best Team Oral, and Best Individual Oral;
– Summer internships with both a Government Contractor’s in-house counsel and a well known and respected intellectual property firm during my 1L and 2L summer. And at both, I was consistently praised for a work product that was on par with a beginning associate, not a law student;
– Judicial Intern for Justice Constandinos Himonas of the Utah Supreme Court;
– Presenter at the Race and Intellectual Property Conference hosted by NYU;
– CALI Award recipient and Leary Scholar; and
– Biolaw Fellow.
And yet, I still struggle with standardized tests. As such, I did not pass the Bar my first time around. This was not due to lack of studying (I completed the entire Barbri Course, including over 1500 practice multiple choice questions, all the recommended essays, etc). Nor was it due to a lack of material knowledge or an inability to perform the legal responsibilities of a new associate, as I quickly learned with my law firm.
Rather, as was pointed out to me consistently while working at my law firm and studying with the faculty for the February Bar, the issue was quite simple. Namely, I am an overly thorough reader and as such I struggle speed-reading and speed-writing essays. Thus, my practice for the February bar was what one professor aptly put as “dumbing down and speeding up” my writing style. Becoming far less thorough, pumping out a mediocre but good enough essay with bullet points rather than complete sentences, and doing the exact opposite of what has earned me praise with every legal position I have ever held.
By adopting this “dumbed down and sped up” writing style, my writing score increased by over 30 points and I recently passed the February Bar with a score that would qualify me in any UBE state. My MBE score stayed almost the same as July, which was significantly above the national average. Thus, the sole change adopted and reflected in the score was the writing approach. But as that same professor mentioned, the moment the Bar is done, forget the method, take my time with my work and do a good, thorough job. Nothing in my work product has changed due to my preparation for the Bar Exam. Nor has more studying for the February Bar made me a better practitioner than I was while studying for the July Bar. I simply adopted a “standardized test” writing approach rather than a “practicing attorney” approach. An approach which would get me into significant trouble if I actually used it in my daily practice.
To those stating that the Bar Exam is a clear demonstration of “minimum competence,” I would remind you of the following things:
– As Linda Smith stated, utilizing the Bar Exam methodology in practice is the opening for a malpractice suit.
– The Bar Exams tests a number of areas which will never be used by a wide majority of practitioners in their respective careers. For example, given my area of practice, I will most likely never again be required to be intimately familiar with Family Law, Secured Transactions, and Trusts & Future Interests. And if I do, I certainly will not rely solely on memory to provide legal services.
– In the last two exams, the Bar has selected several MEE topics that were highly specialized and rarely practiced areas of law, even in the “core concept” topics. When attorneys, many of whom are senior or name partners at their respective firms, heard what the topics were, they laughed and said that they had never done one of those cases in their decades of experience. Requiring knowledge of such topics from memory is not “minimum competence.”
– 400 hours of legal practice and mentoring is just as much of a stress test and immersion method as the recommended 400 hours of Bar Prep. However, it is also more tailored towards the area of law the individual is actually practicing. My knowledge of the law developed tenfold the second time around. Not because I was studying more for the February Bar than I was for the July Bar. Rather, it developed because I was working for a premier law firm under an incredible mentor and I was working on cases that incorporated Contract Law, Torts, Civil Procedure, Criminal Law and Procedure, Evidence, Agency law, and so on. For several of the Bar Exam questions, I had a relatively close case comparison from my work to relate to.
I believe both the pros and the cons of the Order have been well-addressed by the various comments above. While I personally support the Order, I can understand the hesitation of many others in regards to its long-term impacts. However, the assertions made in regard to the Bar Exam as an effective demonstration of minimum competence are flawed to a degree. Thus, I recommend that such arguments not be given weight when considering the Order.
You make this eloquent argument concluding with a statement that explains how this method of admitting persons to the bar is seemingly as adequate as the bar itself. Yet, it seems you are content to only serve YOUR students. This program should not exclude others trying to be admitted. Are your students more deserving? Are they in a greater crisis? Are they the only ones with jobs waiting? How does this “pose no greater risk” to only those fortunate to attend a Utah Law school?
“Left in the Cold”: This is exactly right. He is self-serving and the Utah Supreme Court is self-serving too. I feel sick for the 2020 graduates from ABA Accredited schools that aren’t included in this because they chose to go to an out-of-state school. To be 100% honest with you, in my experience, those out-of-state graduates are better suited to practice law in the state of Utah. The Utah students are still stuck inside the “bubble” of Utah. I know that people joke about the “bubble” for Utah, especially Utah County, but it is a real thing and it affects a lot of lawyers who went to BYU and Utah. A lot of these kids have never left their parent’s teat other than for the 2-year LDS Mission that they served. This is unfortunate and absolutely disgusting that the Utah Supreme Court would discriminate against those out-of-state 2020 law graduates by setting a biased requirement at 86% that allows EVERY SINGLE BYU and Utah student diploma privilege but keeps out many who are more qualified than them.
I support the proposed rule and the comments provided by Robert Adler. For fifteen years, I was very active in the Bar’s Admissions-related activities. I served as Chair of Character and Fitness, Bar Examiners and Admissions Committees. I then served two terms as a Bar Commissioner and was a strong supporter of Admissions issues that came before the Commission.
I now have a long perspective of the role of the Bar exam and how it serves our community. After the COVID 19 emergency has passed, I hope that the Court and the Bar Commission will conduct a new evaluation of the value of the exam. I believe that the exam in its current format is largely unnecessary.
Over my many years of involvement with Admissions, I have come to conclude that the exam mainly continues because it serves as a rite of passage and a way to control the number of lawyers practicing in Utah. I have known lawyers who failed the exam, passed on the next try, and then went on to have highly successful legal careers. In all these cases, passing the exam on the second try was not a result of these people becoming better prepared to be a lawyer. Rather, they were better able to take the exam. In most respects, the Bar exam tests the ability of people to be successful in exam taking and it is not a complete test of their legal knowledge or abilities. Steps like adding practical essay questions have been helpful, but the exam still isn’t a complete predictor of someone becoming a successful and contributing member of the Bar.
I have practiced in a large firm, as a corporate attorney and now as a government attorney. I closely work with law students who clerk in our office. Law students today are different than when I graduated from law school. They are much more interested in helping our community and more aware of matters involving access to justice. Our community needs these people to become members of the Bar as soon as possible.
I expect there will be little impact on the legal practice in Utah that will result from admission of the group of applicants who would be affected by the proposed rule. During this time, I would much rather see the Bar and the Court err on the side of compassion for the applicants and Bar staff by admitting the applicants through the proposed process. I also think our community will immediately benefit from having new attorneys who are ready to help those in need.
Thank you for considering my comments.
Outstanding work by the USC. One adjustment must be made. This privilege needs to include any qualified applicant who is eligible to sit for the bar regardless of a previous bar exam or date of graduation. This pandemic has devastated so many, we need to exercise humility and kindness.
Please consider extending this to anyone eligible to sit for the Utah Bar. Be an example. The requirements for completion will weed out anyone not fully committed to becoming a quality member of the Utah bar. This is a measured appropriate response. INCLUDE everyone and then press forward.
I agree great leadership by Court, but please include all applicants approved to take the July exam. The current approach fails to address career changers whose plans were long in the making, and who made a significant investment. Please allow regardless of bar exam or graduation date.
I would ask that the required years of active practice for a supervising attorney be set at 5 years instead of 7. Or alternatively that if the supervising attorney doesn’t have 7 years of active practice, that a committee can still approve the supervising attorney ad hoc based on other factors that indicate sufficient experience.
I am the founder of LawHQ.com. I was admitted in 2012 to the Utah Bar. I have been licensed for around 8 years with the Utah bar, however, 100% of that hasn’t been active. For around 2 years I was inactive while I worked on another company I co-founded. During this time I was “inactive” with the Utah bar, but I was still handling legal issues. My other company was involved in multiple legal issues during this time and I worked closely with our outside counsel. This included a $1 million+ breach of contract suit, and a $250,000 arbitration with a company out of Hong Kong.
With my law firm LawHQ we currently have lawsuits against 9 state bars in federal courts around the United States for violations of attorney free speech in prohibiting law firm trade names. We also have over $100 million+ in mass torts that we have filed for violations of the Telephone Consumer Protection Act in federal district courts across the country. We have a network of attorneys in over 20 states working with us. We also have clients in 47 different states. I’ll be the first to admit that there are many attorneys who have much more experience than I do. Yet, I feel that to be disqualified as a supervising attorney given our breadth of work would be disappointing.
We currently have an individual working for us who will soon graduate from a qualifying law school. If the rule passes as it currently stands, I either have to lose this person, or I’d have to be a bit liberal in the construction of the requirement of 7 years of active practice to become his supervising attorney.
For these reasons, I’d respectfully ask that the required years of active practice for a supervising attorney be set at 5 years instead of 7. Or alternatively that if the supervising attorney doesn’t have 7 years of active practice, that a committee can still approve the supervising attorney ad hoc based on other factors that indicate sufficient experience.
I also failed to state that as a younger law firm we are really attempting to innovate how people access legal services. We’re a technology focused law firm. We’re newer. And hence we are younger.
I’d hate to not qualify as a supervising attorney when I feel my experience is sufficient, and when we are working towards goals the Utah Bar has also been promoting, namely, access to justice.
I appreciate your consideration.
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.
I think a blanket waiver of the bar exam is goes too far. The National Council of Bar Examiners has already stated they will offer a fall bar exam for jurisdictions that cannot or choose not to move forward with July examination. I believe that allowing recent graduates the ability to practice for a year to 18 months under attorney supervision is appropriate, but any longer is unnecessary.
I think a supervised practice program similar those adopted by the New Jersey or Tennessee is more appropriate. These programs allow students who were scheduled to take the bar exam in July to practice under supervision until November of 2021, but requires they take the first available bar exam.
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.
While I see the benefit to retain Internet anonymity for some, I question whether or not this comment was submitted by any current 3L law student at the S.J. Quinney College of Law based on my personal conversations with each of my fellow colleagues.
Seeing as all of these comments are tied to an email address, I trust that the moderator, members of the Committee, and Justices will be able to give the appropriate weight to these anonymous comments.
“A total of 88 semester hours of credit (90 hours of credit beginning with the class of 2022) with a cumulative GPA of 2.5 is required for graduation.“
-The SJ Quinney Student Handbook
Good thing you need to have a 2.5 cumulative GPA to graduate from the SJQ College Of Law. Nice try with the inflammatory, ridiculous comment.
I am a current 3L who would be affected by this, and this proposal is beneficial to many of us. I do not have kids so I didn’t think that COVID-19 would affect me too much, but I was wrong. I had to leave my home because I lived with someone with a compromised immune system and my work hadn’t ended at that point. I then discovered that my elderly father is suffering from what I believe to be early stages of dementia. When I came to check on him, the electricity was shut off in his home and he couldn’t remember the last time he had eaten. I haven’t been able to get him to the doctor because his case is not considered an emergency. I am now staying with him to take care of him. I am without internet so I’m using my mobile hotspot to complete my finals, which is increasing my phone bill. I don’t believe I would be able to do Bar prep on such limited internet. Further, I only had enough money saved to get me through the July Bar, and now that I am taking care of my father, my savings are draining quickly. It would be a tremendous help to get back to work in a few weeks rather than waiting for an unknown amount of time for the Bar to be administered. Many of us have taken most of the Bar tested courses in anticipation for the Bar and have taken/passed the exams; we have proven that we are competent in these areas. I believe it is beneficial to allow us to work 360 to gain experience, especially in a time where many people are going to need Pro Bono help. I know many of us really appreciate the Court’s willingness to be flexible and find better solutions during this time, and this proposal is the best solution.
I applaud this effort and add one suggestion:
February 2020 exam results just came back and 29 bar takers failed (a surprisingly high 37%).
For those 29, there are no real options at present. They can’t take the July exam because it’s been cancelled and they can’t utilize Diploma Privilege under the proposed rule. This essentially leaves them in legal limbo for a whole year.
Why not allows those 29 to also pursue diploma privilege? If they’re truly incompetent, their supervisors should be able to detect it. If they’re competent, the industry will have gained an additional cadre of lawyers who can support the economy during these troubling times.
Why can the Bar not simply provide provisional licenses to new graduates and lawyers transferring from other states, with a requirement to take the bar exam once it is practical again? The proposed approach seems to go far and beyond what these circumstances require.
I am a third-year law student at the University of Utah and have family members who are trying to fight or recover from the Coronavirus. I would like to thank the Supreme Court for the compassion and consideration it put into the Proposed Order. The Court’s commitment to equity and its openness to public comment is particularly welcome at this time.
I have read all the comments submitted so far, and the Proposed Order is the best solution to a genuine problem. The Bar exam does not effectively ensure minimum competency, legal practice is an adequate substitute, and postponing the Bar or holding it in different settings would be impractical and harmful. Students, employers, and the public have little to lose from this Proposed Order.
The Proposed Order Responds to a Genuine Problem:
Many comments have suggested that the Proposed Order is an overreaction to the COVID-19 pandemic. Some have even suggested that the pandemic will be over soon. This seriously undermines the severity of this pandemic: international organizations, national governments, and federal and state governments have indicated that normality will not return anytime soon. A vaccine will not be ready for another year, and further waves of the pandemic are possible if not inevitable. It is impossible for anyone to confidently predict that conditions will return to normal.
Not knowing when the Bar exam will take place can harm students. Aside from any mental toll, employers may rescind offers or at least postpone hiring. Students today carry significant student debt, which is the second-highest consumer debt in the United States. Creating a liquidity problem for graduates carrying huge debts will contribute to an impending student debt repayment crisis.
Some commentators have suggested that lawyers in previous graduating years had to overcome difficulties to pass the Bar and are also now figuring out how to navigate the pandemic. Some suggest that the present challenges are character-building. Others argue that the Bar exam is an important tradition and rite of passage and that 2020 graduates should have to pass it just like every other Utah lawyer. First, I fundamentally disagree with the view that we should expose people to hardship when a solution is readily available. Second, the fact that lawyers are suffering does not mean we should refuse to allay student hardship. Third, repeating a questionable practice when doing so makes little sense in the current context is not a symbol of the Utah community’s commitment to self-improvement.
Graduates can become Competent Lawyers without Needing to Pass the Bar Exam:
Commentators argue that the Bar exam provides a minimum level of competency among lawyers by (i) developing and testing legal knowledge; and (ii) testing essential legal skills.
I work in consumer protection and do not want to expose clients to incompetent legal representation. However, students are required to take classes in most/many of the areas tested on the Bar; passing the Bar is therefore simply revisiting content often learned at school already. Law classes alone do not prepare us to practice the law independently, and even those classes are far more in-depth than the knowledge necessary to pass the Bar. Passing the Bar involves a lot of superficial learning and memorization that will not necessarily make us better lawyers.
Testing skills-based competency in exam conditions is not an effective way to guarantee that graduates have those skills. Strong exam performance is not the same as proficiently writing a motion, negotiating a settlement, conducting a deposition, or doing due diligence work to complete a transaction. Most students have experienced the difference between understanding the law and performing in exam conditions. And bar preparation companies teach that passing the Bar exam (including by emphasizing memorization) is a skill distinct from legal practice.
The Proposed Order provides a more effective means for ensuring basic competencies: practical training. Some commentators cautioning against the Order analogize to the importance of exams in medical, pharmacy, and other professions. But practical training plays a vital role in these professions. Any practical skills and real knowledge (as opposed to memorized facts stored in the short-term memory) I have developed at school have overwhelming come through internships and externships.
Practical training is also the bedrock of ensuring legal competency in other jurisdictions. For example, within United Kingdom jurisdictions, students complete vocational training courses in which they take most of the same courses that are already mandatory in U.S. law schools. The focus is then on one-year (barristers) or two-year (solicitors) work placements. In many cases, students only take a 1-year law degree before doing their vocational training course. Although these training periods are longer than 360 hours, those 360 hours are still a better guarantee of competence than the Bar examination.
The appropriate question seems to be whether the supervision itself will be effective. I think students should complete a given number of tasks from a list approved by the Court, perhaps including motion writing, participating in depositions, interviewing clients, conducting due diligence on deals, and so on. I do not think an attorney will approve filing a low-quality court motion written by a graduate if the attorney is involved in the case. Nor would an attorney be comfortable having a client sign a contract written by a graduate without reading it first. And supervision of graduates will be similar to an employer’s supervision of first-year lawyers.
Attorneys should be able to flag poor performance with the Bar, and the Court could establish a process for monitoring those graduates more closely. For example, the Court could require further hours of practice and under the supervision of a different attorney. Some commentators suggest that graduates will ‘cheat the system’ by working with attorneys who care less about a graduate’s performance. I do not think we can assume that attorneys are willing to bring truly incompetent graduates into legal practice. If there are such lawyers, we have a deeper problem that a Bar exam does not solve.
Finally, I do not think there will be a shortage of experienced attorneys willing to take on supervising graduates. Law graduates are still somewhat useful; the supervisor’s burden is not without reward, and it is the same burden that employers take on when hiring recently-licensed lawyers. Employers also have nothing to lose from the Proposed Order: there is no requirement that existing lawyers take on recent graduates. Graduates who cannot find placements can simply take the Bar whenever it is next administered. Further, the notion that mostly the wealthy and connected will get placements implies that this inequality does not already exist in our profession (and does not extend to paying for Bar exam training). Besides, schools will do a lot to help students find placements because their reputations will suffer if they do not.
The Fear of Stigmatization and Losing Reciprocity is not Well-founded:
I am not concerned either about being stigmatized for not taking the Bar exam or about reciprocity with other states. If I feel stigmatized or want reciprocity, I will take the Bar the next time it is held. The Proposed Order does not prevent taking it at a later date after already being licensed. And if an employer holds not having taken the Bar exam against me, I do not want to work for them.
Proposed Alternatives are Inadequate:
Many commentators have suggested holding the Bar exam in a large room, holding it remotely, or postponing it for anywhere between a few weeks and a few years.
The first suggestion is inconsistent with all health guidelines on pandemic and ignores how COVID-19 spreads. If we take the exam in a large room, we will be breathing into a common area with ventilation systems that circulate air around the venue. And using full medical gear as protection takes away short-supplied protections from front-line medical staff who need them.
Holding the exam remotely is impractical. Not all students have access to a room that has good internet, quiet, and no children. I am also well aware that Examsoft frequently fails and IT support will be minimal. Taking the exam in smaller settings also ignores the same health problems mentioned above. Further, even if we sat the exam in small groups, this would require the Bar to find and pay for a large number of venues that are still open, willing to house us, and meet the internet, electricity, and health requirements that the Bar must guarantee.
Postponing the exam will put pressure on graduates to work full-time while studying for the Bar. Employers may be unwilling to give the time needed to study adequately and will be wary of that when making hiring decisions. And again, we have no real idea when this pandemic will end—we could end up postponing the exam for another year, during which time employers may not pay us lawyer salaries.
I understand the need for flexibility in these time. But this could be accomplished with a provisional license, or even just allowing students to continue practicing under the third-year practice rule.
The urgency of this proposal is overstated. It seems that this is urgently necessary only for the law schools, which are worried about this negatively impacting their numbers. But in reality, the vast majority of the market is in a hiring freeze. If a graduating student loses their prospective job or is unable to get a job, it will be because of the market downturn, not because of their lack of immediate licensing.
The court should postpone the exam until it is safe to administer it—whether that be in person or remotely. Other standardized tests are already being conducted remotely (LSAT, GRE, etc.).
The bar exam may be a “formality,” but it is the last stop-gap of ensuring competency. There is nothing wrong with considering alternative arrangements, but they need to be well-thought out and well-regulated.
360 hours of supervision could be a possible option one day—perhaps as an alternative to the last year/semester of law school, where it could be well-regulated and actually supervised. But, as written, there is no way to ensure that supervision occurs. No practicing attorney has the time to meaningfully supervise a single student for 360 hours, let alone two entire graduating classes. This would be even more meaningless in the current environment where everyone is working remotely.
Postpone the exam. Give provisional licenses. Take the time to ensure this is a well-regulated process.
One final thought. Nothing requires someone to hire a student who is licensed but has not passed the exam. I imagine many employers would be hesitant to do so. And this completely eliminates reciprocity.
I would also like to add that I find it wholly inappropriate that the law school sent out an email encouraging students to submit “supportive feedback.” It highlights the fact that this serves to benefit only the law schools—under the guise of supporting students.
Completely agree. Why is there a rush to get people past the bar? Graduating students can practice under supervisory rules already in place. This order suggests that COVID ought to be treated as some kind of free pass for a select few, rather than an epidemic that affects everyone. Continue with supervised practice, pick a date as soon as reasonably possible (providing 2-3 months notice so we can appropriately study), and lets just get on with life. I have heard comments from deans and professors advocating for this change suggesting that this is Utah being “innovative” and at the forefront of change. This is laughable. The unnecessary knee-jerk reaction is pathetic; other states have already started to see it as such. Delay the exam and let us continue as normal. If not for justice, do it for the class of 2020 — even those of us planning to take the exam when it is offered will forever be labeled as a 2020 diploma privileged attorneys if the order is approved.
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.
Agree the bar exam is not critical to either success as a lawyer or to establishing the trust of the public, and agree graduation from UU/BYU + 360 supervised hours is an adequate way of assessing fitness for the profession. Why not waive the bar exam requirement permanently for all law graduates of top 100 programs?
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.
*As a BYU student…
As a member of the Bar for more than forty years and a member of the Bar’s Admissions Committee for fourteen years I have never believed that the bar exam effectively measured the ability of a candidate to practice law in Utah. The fact that this proposal would only benefit a subset of those planning to sit for the 2020 exam is not an argument against implementing this Proposed Order. Those who do not meet the definition will be no worse off than they would have been otherwise. The exigent circumstances, secondary to Covid-19, justify the court implementing the proposed order.
An added benefit is that admitting “Qualified Recent Law School Graduate[s]” will create a cohort of lawyers whose careers the Bar may analyze in considering the implementation of diploma privilege generally for all qualifying applicants.
The Court and Bar are to be commended for their foresight in considering this knotty problem in a timely fashion.
This is unfair to practicing attorneys who need a Utah bar license sooner rather than later. Why are we only allowing new law graduates to skip the exam? In this COVID-fueled economic environment, EVERYONE needs access to the same bar license equally.
I graduated from a top tier law school and was on its law review. I have practiced for over 30 years as a member of the Utah State Bar. In all of my experience, I have not found anything that I learned while studying for the Bar Exam to be of any worth to me or my clients. The notion that passing the Bar Exam shows professional competence is a myth. Professional competence is gained through diligence and hard work after graduating from law school and grinding it out as a practitioner. Merely passing the Bar Exam is not an indicator of who will turn out to be a “good” lawyer. The Utah Bar Journal is full each month, in the Attorney Discipline section, of the names of folks who passed the Bar Exam but did not measure up to the standards of the Bar. All that the Bar Exam shows it that for a two day period someone with “test smarts” was able to regurgitate facts by rote that happened to be on that version of the Exam.
In my experience, I have met several persons who had/have marginal legal skills, yet they passed the Bar. On the other hand, I know people who successfully completed three years of law school who never passed the Bar Exam because they did not test well. However, they would have made excellent attorneys if given the chance.
I applaud the proposed admission waiver rule with a few modifications.
First. We all know that some in the defined group would fail the Bar Exam if they had to actually take it. Thus, a number of people will be waived into the practice that would otherwise not make it in. As a result, to be fair, the pool should include those who have taken the Bar but not passed it. Surely, many of them are as smart, or even smarter, than those who be admitted gratis. Their only failure is the inability to perform well on a test that has no practical value other than to restrict the number of lawyers that are allowed to practice in Utah.
Second. The pool of candidates should include those from all A.B. A. accredited law schools. To restrict it to a few of the “top schools” is elitist, and stereotypes those who went to lower-ranked schools as less fit to practice law. B.Y.U. is ranked 37th, Utah is ranked 45th. There are many reasons why someone would go to school out-of-state that do not relate to intelligence or legal acumen. Finances, family obligations, curriculum not offered in-state, weather, and medical issues are a few. If the A.B.A has accredited the school that should be good enough for the Utah State Bar.
Third. The qualification period from May 1, 2019, to June 30, 2020, seems reasonable. But, those who have taken the Exam previously should not be excluded. They should either be waived in with the rest or the passing score for the previous exam should be reduced to 250. This will allow those who almost made it to come in with the group knowing that there are those in the group, who are unidentified, that would probably get scores lower than 250 if they had to take the exam, yet they get admitted.
4. The Bar should adopt an alternative route for admission, other than the Bar Exam. Supervised Practice seems to be a good alternative. It would probably be a better predictor of legal ability and ethics than a two-day test. In addition, it provides a secure route to a license so that law school graduates can make plans with a clear path to the future without the angst of the dreaded Bar Exam; or a way of picking up the pieces after a failed Exam knowing that their dream of being an attorney is still possible. Quite frankly, I believe that in the future a significant number of applicants may take the alternate route because they can take jobs, obtain housing, and make similar commitments without the fear of not passing the Bar Exam.
This is a horrible idea on so many levels. Completely unjust to the rest of us who actually had to take time off of work and study and pass the exam. Also concerned about the quality of work these new lawyers will provide the community. But foremost, this smacks of inequality. Perhaps the worst idea in the history of the bar other than the decision to let paralegals engage in the practice of law.
As a graduating law student I am extremely determined to ensure two things: 1) That I obtain a license to practice law as soon as possible; 2) that no matter how that license is obtained, that I offer the best legal representation possible to clients. For some attorneys this preparation meant taking the bar exam before launching their career as attorneys. For me, based on this order, I may have to put in extra work later on to ensure that the people I serve don’t notice any difference between the two options. I am confident that I will do what is necessary to ensure that this alternative provides all the benefits for Utah and its legal consumers, without any of the fall-out that some are concerned with. If I had to take the bar, I would. This alternative will allow me to keep as normal a plan as possible in face of the inevitable changes COVID-19 will bring.
This will allow me to become an active participant in Utah’s legal field as soon as possible getting a jump start on providing those legal services that will be valuable to people in need and to my employers. For us this change will also make a significant difference for us financially and as we move towards a normalized employment and career. It will allow me to more quickly establish a relationship with a long term employer and will allow us to put that time towards economic benefit which will allow us to help rebuild the economy.
One difficulty I find is that my current employer is a legal-tech startup. Both the attorneys I work with are relatively young, and unless the 7 year practice qualification for supervising attorneys is reduced to 5, I will be required to find new work in order to meet the supervised hour requirement. Having to find new employment would not be my first choice in such a tenuous time. An adjustment would go a great way toward making this as easy as possible.
It should be noted, that whether I stay with my current employer or am forced to find an alternative way to complete the 360 hours, this option is far more beneficial for launching my legal career than having to wait longer to obtain a license.
Thank you for taking the time to consider the impact on recent graduates as a result of the COVID-19 Outbreak. I would like to suggest one modification to the proposed Order. Please consider requiring recent graduates to take the Bar Examination during 2021. This would allow recent graduates to be fully employed and practice with supervision, but also ensure that any 2020 graduate is appropriately qualified to practice in Utah. The benefit of studying and passing the Bar is important for the recent graduate to consolidate three years of learning into a workable knowledge. Thank you.
I am a 3L at the University of Utah set to graduate in May. I applied to sit for the July 2020 bar exam, and I will be admitted to practice law in Utah without taking the bar exam if the proposed order is finalized. The proposed order directly affects my future and career, and I am in full support. I support the proposal because I believe it is the most equitable solution for recent Utah law school graduates. The proposal is not a “free pass” or a way to get out of studying as most of my classmates, and I already have put in significant amounts of time to prepare for the exam.
The main reason I support the proposal is due to the uncertainty in the next 3 – 12 months surrounding COVID-19 and its repercussions. I could quickly get sick or have to care for a sick family member. A member of my household is required to go to work as an essential employee and comes into physical contact with multiple people per day. Further, two of my family members are severely at risk for contracting COVID-19 and live with another family member who works at a hospital as an essential employee. As hard as we try to stay healthy and prevent transmission, my house and my family are not COVID-19 proof. If a member of my family gets sick, or I get infected with COVID-19, my study abilities would diminish entirely due to caring full time for sick loved ones or being sick myself.
I do not think it is fair for recent graduates to have to choose between studying for a bar exam or tending to sick family members. A delayed exam is not the solution. The impacts of COVID-19 are more than a time delay. There are financial burdens, emotional effects, as well as possible physical manifestations that are unique to a pandemic and will carry on long after the pandemic is officially over.
The comments that recent graduates are getting an “easy out” are offensive and hurtful to me, to my classmates, and to the S.J. Quinney College of Law. Those comments miss the point of what it means to be well-rounded and educated in the legal profession. A bar exam does not equate to a three-year law school education or experiential learning. Instead, it insinuates that a test score defines an individual’s ability to be a lawyer.
I firmly believe experiential learning has prepared me far better for real-life lawyering than any exam ever has and ever will. Throughout my law school education, I participated in several externships (Disability Law Center, U of U Risk Management, Judicial Externship), provided over 100 hours to the Pro Bono Initiative, and worked in the public interest sector during law school. Additionally, if law students graduating in May 2020 don’t have basic competency to be an attorney in Utah after three years of law school, the community needs to reassess why Utah requires a law degree from an ABA credited school as a prerequisite for sitting for the Utah Bar Exam or why Utah allows third-year law students to practice with supervision.
Further, the other comments stating that the bar exam is a rite of passage are callous. Time and time again, ineffective practices and ideals have been abolished. We are in an unprecedented time, and I am grateful the Utah Supreme Court understands, listens, and advocates for law students.
I trust the Utah Supreme Court and fully support the proposed order.
Unusual times call for unusual actions. I support the Court’s proposed order, and feel due to the Covid 19 pandemic, it is affording many educated students the opportunity to proceed with their chosen profession, in a time that there are so many life altering restrictions upon us. There is a crisis of unemployment in our country today and not allowing these individuals to proceed with their profession will only add to the crisis.
This is an outstanding action to take in an unprecedented time. I am very much in favor of the Proposed Order and am impressed with the Utah Supreme Court’s logic, courage and humanity. Every discipline, industry and organization in our country are taking drastic measures to see our country through this pandemic and its devastation to life, economy and contentedness. This measure addresses all those areas. Considering the fact that the Bar will not be held in July this year, this will launch these bright and promising people from becoming a part of the problem to becoming part of the solution. Let’s get them employed and working.
This is not a time to be thinking about ourselves and if it is fair that we had to take the Bar and they do not. There is nothing fair about this pandemic. Let’s pull together and do what we can to promote the recovery of our families, communities, Utah and this great country. God bless the USA.
The emergency order raises the fundamental question of whether there should be a bar examination at all. If the bar examination is nothing but a right of passage, then it should just be eliminated entirely and replaced with an internship program similar to that set forth in the order for all current and future law school graduates. But if the bar examination is more than just a right of passage and is considered an important tool for assessing the fitness of a bar applicant to practice law in the state of Utah, then any relief afforded in the order should be interim and temporary. Specifically, any bar license granted under the emergency order should be temporary and expressly conditioned on the holder of the temporary license passing the state bar exam sometime in the future (i.e, by the end of 2021).
I am a 3L at the University of Utah and will qualify for this waiver if the order is finalized. I express gratitude to the justices of the Utah Supreme Court and those who advised them for carefully considering this issue and for creating a reasoned and compassionate response.
Simply waiting to take the bar at an unspecified time down the road will cause undue financial and emotional hardship to graduates who had planned and prepared to take the July 2020 bar exam. This is an unprecedented situation that is fraught with uncertainty. Our careers and wellbeing, in addition to the livelihoods of those who depend on us, are at stake.
The Court’s proposal, while not perfect, is our best shot at satisfying the need for competency for clients, certainty for graduates, and access to legal services for those struggling—especially those struggling in the wake of the pandemic. The justice gap will continue to widen as the pandemic rages on. If the proposed order is finalized, graduates will be able to fulfill the part or all of their required 360 hours of supervised practice in pro bono or low-bono settings. These graduates’ contributions would add to the efforts being made to closing the justice gap, while also providing the graduates with real-life legal training.
I am saddened by the implications in a number of comments that graduates in my class are lazy, entitled, and unfit to practice law or that potential employers and clients will go out of their way to avoid hiring 2020 graduates. It is disheartening to see that hazing mentality of “I had to take the bar, so you should too” has led to the threat of discriminatory hiring practices. Frankly, I would much rather take the bar exam in July than deal with a global pandemic during my last semester of law school, but that decision was out of my hands. This is not a free pass. Graduates will have to put in the work of completing 360 hours of supervised practice, in addition to passing the MPRE, character and fitness probes, and a criminal background check. Along with a supervising attorney, they will acquire the real-life skills necessary to practice law—taking depositions, interviewing clients, questioning witnesses, drafting motions, etc.—rather than pour over flashcards for 400+ hours to prepare for a two-day examination.
Throughout this pandemic, members of my class have continued to study, attend classes, work, complete internships and fellowships, and deal with unique and challenging personal circumstances. The dedication, hard work, and competence that has been displayed by graduates in our three years of law school and during this last semester will continue through the 360 hours of supervised practice and into the rest of our careers.
As a graduating 3L, I am so grateful for this proposal and that it is receiving serious consideration. I hope that the order becomes final so that graduating law students can continue to plan for their futures with minimal disruption.
This is not an excuse to sneak into the legal field because we are lazy. If there was an option to take the July bar as usual, I believe most of us would take it. We came to law school expecting to do just that. But these are uncertain times, and we cannot put off practice by waiting out a virus that is completely unpredictable. How do we know it will be safe to take the exam in the fall? Next February? Next July? The longer we wait, the more we cripple our legal system by not providing the yearly influx of lawyers it needs.
A lot of the comments against the order seem to be by barred attorneys who feel that the bar examination is a necessary gateway into the legal profession, and that because they took the bar, we should too.
We are not in the same situation. When past attorneys prepared for and took the exam, there was not a worldwide pandemic going on. Unprecedented circumstances call for unprecedented solutions. Additionally, it is clear to me that a simple exam is inadequate to weed out attorneys unfit to practice. Many barred attorneys are still incompetent and become subject to discipline, so an exam will not guarantee competent attorneys anyway.
Doing the work of a lawyer seems to me the best way to learn how to be a good one. How is cramming material for twelve weeks by using online videos or outlines a superior alternative to getting hands-on experience under a seasoned attorney?
The diploma privilege should be adopted in Utah because it makes the most sense in dealing with the issues brought on because of COVID-19. After all of this dies down, we will need lawyers more than ever and we cannot be held back because the incoming lawyers had to comply with an empty tradition.
I am a BYU Law Class of 2020 graduate who accepted a job offer to work as a law clerk for the Clark County DA’s Office in Las Vegas, Nevada. My plan was to take the Nevada bar in July 2020 and start the law clerk position in September.
Unfortunately, I just received a call today that the Clark County DA’s Office is potentially rescinding all of their law clerk offers for the Fall. They advised that I should start looking for a job elsewhere. This throws an absolute monkey wrench into my plans.
Since I was planning on taking the Nevada bar, I did not apply for the Utah bar. According to the rules of the Proposed Order, I am now barred from receiving the benefit of diploma privilege + 360 supervision, despite the fact that I am graduating from a qualified institution. It is unfair that I, a BYU Law graduate, will not be able to benefit from the diploma privilege just because I missed the April 1 deadline. I did not foresee the effects of Covid-19, and if I had not been promised a job in Las Vegas, I would have no doubt applied for the Utah bar instead.
My argument is as follows: Not allowing U of U and BYU Law graduates to benefit from the diploma privilege just because they did not originally apply for the Utah bar puts them at a great disadvantage, especially if their job offer out of state was rescinded or the out-of-state bar was pushed back.
As for me, I have no other real connections in Las Vegas besides the DA. My real connections are here in Utah, where I have gone to school for the past three years. BYU Law Career Services also likely has a better vantage point for jobs in Utah than it does in Las Vegas. Furthermore, Covid-19 has completely devastated the Las Vegas economy. It is unrealistic to think that any other firms or government agencies would be hiring in Las Vegas at this time. I have a much better chance of finding a job here in Utah than in Nevada.
This news about my job has put me in great hardship. It is unknown whether the Nevada bar will be offered in July. Nevada released a statement that it will decide by May 22 whether to push the bar back or not.
To reiterate, Las Vegas has no real job prospects because of the downturn of the economy, I now cannot receive diploma privilege in Utah because I missed the April 1 deadline (which is where I have many more connections and potential job opportunities), I have student debt that I will be forced to defer for at least a year if I do not get a properly paying position, and it is unlikely that I will be able to apply for other state bars, such as Tennessee (my home state), since those deadlines have already passed as well.
I am unsure of where to go from here and I feel immense anxiety for how and where I am going to get a new job during this time. I worked so hard to apply for and receive my job offer at the DA—I worked there as an intern during both my 1L/2L summers in hopes of acquiring this very law clerk position. From there I planned on being a prosecutor for the DA. Now, in one moment, it seems like all of my hard work has vanished into thin air.
I am pleading with the Court to extend the Utah bar application deadline so I, and other U of U and BYU Law students like me, can benefit from the Proposed Order. These graduates would then be able to search for jobs in Utah through the existing connections we have, as well as through our well-connected Career Services programs. This would give us some sense of security in knowing that we are at least licensed in the State that we have called home for three years. Please think about the minority of Utah graduates who will be severely burdened by the Court’s decision not to extend the deadline—the students who were blindsided by this virus and lost their job offers in its wake, and now feel like they have nowhere else to go.
In conclusion, the Proposed Order is supposed to provide some sort of certainty for graduates in uncertain times. It is supposed to “temporarily adjust some of its rules and practices to address the reality we currently confront.” Therefore, it only makes sense that the Court should adjust its bar application deadline to compensate for the uncertainties that Utah graduates now face for job prospects out of state. We are just as deserving and well-qualified as the graduates from the Utah law schools that met the April 1 deadline, and we are surely just as committed to “preserving the excellence and high ethics” in the practice of law, whether in Utah or elsewhere.
I echo Taylor’s words and confirm her account. I have known her for our entire BYU Law School experience as her peer, her job offer at the Clark County DA’s office was her entire reason for coming to law school and their DA office was were she spent every summer of law school. Her dream is slipping away due to no fault of her own, no lack of preparation, no missing credential or want of skill. Taylor has worked so hard in law school for a job that COVID-19 took away in an instant. She will still take the Nevada bar when it is offered this year in order to remain a candidate for a Clark County DA law clerk position next year, but she is too much of an asset to this profession to let sit on the sidelines for a year while Las Vegas heals. Granting her the ability to serve the Utah legal community, her community, would help her retain and grow her legal skills and help insure that the job opportunity she has worked so diligently for is still an option in a year.
If the deadline for applications to the Utah bar cannot be extended to allow Taylor to apply, I ask the Court to consider allowing for exceptions in cases such as hers of demonstrated duress. Thank you.
I, too, can confirm all that has been said about Taylor. She is a perfect example of someone who has been disadvantaged under extreme, unforeseeable circumstances. It is clear that she is serious about her work as a future attorney and there is evidence in her application for the NV bar.
Graduates like Taylor should be given a chance to apply to the Utah bar.
I also echo Taylor’s words and confirm her account. Taylor has been one of the best friends I have had in Law School and for the entire three years that I have known her she repeated that the reason she came to law school was so she could fulfill her dream of working for the Clark County DA’s office. Taylor was so committed to fulfilling this dream that she spent two summers at the DA’s office in Clark County. I think it would unfair and cruel to allow her dream, a dream she worked so hard to achieve to slip away without even the possibility of granting her diploma privilege in Utah. With her job offer that she worked so hard to pursue being rescinded, and her having signed up for the Nevada Bar, she would now have to wait until next fall in order to practice and this would be devastating. Taylor is too much of an asset and too talented of a student and future attorney to have her talents wasted without even the possibility of allowing her to make an impact upon the legal community she spent three years learning from in Utah. Why should she be punished for doing everything right and forced to “red-shirt” for a year in Las Vegas, when she is extremely capable of starting her career as a lawyer in Utah this year and further polishing her skills. Granting her the right to practice in Utah under the diploma privilege, a right she has earned by investing so much time and money at BYU Law School would allow her to further grow her legal skills and also guarantee her success both in Utah and Las Vegas. If the deadline for the applications to the Utah Bar is extended to allow Taylor to apply and exercise the diploma privilege, the court would be using its authority to grant an amazing student, an amazing person and a talented legal mind the right to preserve her dreams.
I completely agree that the proposed order needs to be modified to address Taylor Stokes’ concerns. Sticking to the original deadline for the bar application would be illogical and unjust. Given normal circumstances, it makes sense to pick a deadline for the Utah Bar application. But, given COVID-19, our circumstances are anything but normal and changes need to be made accordingly. No student should be penalized for the fact that they never could have foreseen a pandemic of this scale and scope.
Prioritizing an arbitrary deadline over the wellbeing of Utah’s law students and the Utah legal community at large is unfair, and it delegitimizes the idea that graduating from one of Utah’s law schools is a “sufficient indication of an applicant’s competence.” No Utah law student “whose professional plans and future livelihood depend on receiving a license to practice law” should be forgotten in this proposed order.
Further, there is no benefit to keeping talented individuals, like Taylor, from receiving the same benefits any other BYU or U of U Law graduate would enjoy. She is just as qualified as any other Utah law student, and she, and other similarly situated individuals, have so much to contribute. Due to the fact that COVID-19 has, and will likely continue “widening the existing access-to-justice gap in our community” the Utah Bar should not be in the business of turning away completely qualified individuals who have now decided to join the Utah legal community. And, even if such law students don’t ultimately continue to practice in Utah–something that is never a guarantee for anyone who chooses to start practicing in Utah–they will help provide critical legal services to Utah citizens at a time when it is especially needed.
I commend the Utah Supreme Court for its proposed order. But, without providing opportunities to all Utah law students, the Court’s goals of ensuring fairness, certainty, and enhancing access to justice cannot be achieved.
Dear Honorable Members of USC,
I recently stumbled on an article about the proposed order that could allow 2020 law student graduates to forgo the Utah Bar Exam, and instead complete 360 hours of supervised practice. I am not an attorney, but have benefited plenty of much needed help from some fine attorney’s for business and personal matters in the last several decades. I believe allowing the proposed order for these fine students is a fantastic idea. These are some of the smartest people in our State. I don’t think the exam itself can speak for the years these exceptional students have completed. I am in full favor of this proposed order. I appreciate you all for upholding our judicial system, and for being the smart people of the world.
I am a graduating from law school this year and will be taking advantage of this Emergency Modification when it is enacted. First and foremost, I want to thank the Utah Supreme Court for taking this leap and for all it will benefit me, my classmates, and Utah as a whole. We all find ourselves in trying times, where what was normally hard and difficult has only become more so. Having the opportunity to have a definite path to becoming barred right now does loads for my mental health but also for my financial stability and safety. Taking two months off work to pay thousands of dollars for a bar prep class and bar fees is something I knew I was going to have to do, but as a first-generation college graduate it is something that comes at a great cost. Every cent I must pay before working comes out of loans. The higher my loans get the more I am forced to seek employment with a high paycheck rather than doing the nonprofit work I would prefer. This new path means I will spend less money and I am in the work force even faster. I am hoping to work with Encircles legal council after graduation both as a job but also to get my hours of practice to be barred in Utah. There is so much work in our local communities that we lawyers can help with and this Emergency Modification will help greatly with that. Given the country’s current predicament it is of actual great need.
When I first heard about this proposal, I was quite shocked. I figured that the establishment would have no incentive to change because change for most would mean the devaluing of their bar exam experience. Every attorney in Utah had to suffer through taking the bar and subsequently needed to justify to themselves that it must have had great value else what was the point. The fact that the USC can look at the facts before them and make a well-informed decision on this matter makes me prouder than ever to make Utah my home. Change is uncomfortable and to pretend we will get everything right the first time is a mistake. An even bigger mistake would be to let this opportunity to make a difference slip through our hands.
I have enjoyed my law classes, probably more than most. However, that has not in anyway come close to preparing me for actual practice. However, the jobs I have had during law school have done a lot to prepare me to be an attorney. To give you an example, I am a very risk adverse person. I avoid anything at all that might be risky and do not attempt it until I have thoroughly investigated it. Before law school I heard of people starting their own law firm right out of law school and I thought that was crazy. After getting through two years of law school I thought the idea to be even more crazy. Now at the end of my law school experience I have given serious thought to opening my own practice. It still is not my first choice but from all the experience I have had practicing law I have found that although still terrifying, it is something I could do if needed. If I had just taken classes and then studied for the bar without actual work experience, I would never have felt this way, even if I had passed the bar. Having an additional 360 hours of practice before I am barred instead of having to study two months for one last test will do even more to prepare me to work as an attorney than any bar could.
Again, words are not enough for me to express my gratitude for implementing this Emergency Modification. As I have said to many of my friends this has made this last month of hell worth it.
I wish to thank the Utah Bar for this proposed order. I will graduate from the J. Reuben Clark Law School this April. I am married with two children. Before I share how this proposed order would benefit me or my classmates, I first wish to say that I do not consider myself to be more deserving of help than others. I understand that countless lives will be affected from this crises, and those lives are all important. We lived in Las Vegas and purchased a condo near the end of 2006, near the peak of housing prices. We watched as the value of our condo dropped by close to 75% as a result of the housing crash and recession of 2008. We worked hard, and fortunately were able to hang on to our condo. I witnessed many friends lose their homes and their jobs. This results of this pandemic certainly have the potential to be even more devastating than the recession of 2008.
This order would benefit my family and I in multiple ways. It would relieve some stress. I fully planned to prepare and study for the bar full time for 400 to 500 hours over the next three months. Not having to do so, closed in our apartment, would certainly relieve some burdens. The order would also save us a significant amount of money. The savings from the cost of a bar prep course alone would allow my family and I to cover our normal expenses for approximately one month. I saved throughout law school to pay for the bar prep course. It is comforting to know that we may have another month’s worth of money to pay for our minimum living expenses. This would also allow me to possibly find a full time job sooner and be able to provide for my family sooner. I know of other students who would also benefit from this proposed order.
I also wish to say to those worried about this proposed order possibly hurting the public or that new graduates should have to pay their dues: I appreciate those thoughts and concerns. I can only tell you that I personally will not use this proposed order to game the system. I am still studying fully for my final law school exams (at the same time that my first grader and fifth grader are doing their school lessons, and while my wife teaches an after school class for elementary school children). I will do my best to find meaningful employment. I will work hard and be an honest and contributing member of society. I will work diligently to complete the 360 hour supervised practice requirements. Once licensed, I will complete my CLE requirements. I will do my best to show gratitude for this order, by being the best attorney that I can be. I will also remember that others had a harder path, and may not have been so fortunate. Those are things that I can and will do to show appreciation for this opportunity.
The first sentence should read: Utah Supreme Court instead of Utah Bar
Speaking as an individual to whom the proposed Order applies, I cannot imagine a more equitable solution to our current crisis. I applaud the Utah Supreme Court for finding an innovative solution that allows qualified candidates to gain admission, all while protecting the integrity of the Utah State Bar by adopting a supervised legal practice requirement. The proposed Order will provide young attorneys countless opportunities to provide public service in place of studying for the bar examination. As a result of the proposed Order, I will likely have the opportunity to work for a nonprofit organization that provides relief to individuals in crisis before beginning my career with a private firm.
I echo the critiques of the bar examination that have grown louder on the heels of declining bar passage rates (after preparing for the bar examination myself). The proposed Order provides an opportunity to test the previous criteria for admission. I am convinced that all Utahns will applaud the Utah Supreme Court’s decision as admitted candidates rise to the occasion (including the 62 BYU Law graduates to whom the proposed Order applies). My only request is that Utah considers adopting a more permanent measure to allow future candidates to take advantage of similar criteria for admission once the class of 2020 proves their worth.
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 support the proposed order. I’ve got a friend who would be taking the exam and the fact that he may not be taking the exam does not discount the incredible amount of dedication, sacrifice, and effort he has given to get himself to this point. He would have already proven himself competent and well-qualified, despite an exam. The virus has created a unique situation which therefore calls for unique measures. We shouldn’t put students lives in danger and risk increasing the spread just because some of those who were previously required to take the exam might feel slighted.
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.
I support the proposed order. We are currently facing unprecedented times. The ability to assess, adapt, and respond compassionately to the unique needs of current law students would bode well for the legal community. Although I understand any potential frustration or feelings of unfairness being felt by current lawyers, the reality is that taking the bar under current circumstances is neither realistic nor an accurate representation of competence as it has been for past examinees.
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 am currently a 3L at the University of Utah, and I am grateful for the Court’s careful consideration about this issue. Unsurprisingly, I have been thinking about how COVID-19 will affect the bar exam and my class’s ability to begin our careers after spending three years in law school. I believe the Court’s proposal is the best possible outcome in a challenging situation.
First, I believe a degree from a quality law school plus supervised practice will be as good as or more effective than the bar exam in providing quality, competent attorneys. Students traditionally spend 400+ hours studying legal subjects broadly, many of which students will never use again in practice, to pass the bar exam. Alternatively, supervised practice will allow new graduates to spend a similar amount of hours continuing to learn the law (as all attorneys do throughout their careers) while using it in practice to help clients in need. This, unlike the bar exam, will allow new graduates the opportunity to use their knowledge in a way attorneys actually do in real life practice. As a note, I believe the Court should consider the efficacy of the bar exam and determine whether it truly tests a potential lawyer’s competence. The supervised practice model might prove to be better at producing competent and effective attorneys. But this is a question the Court might consider at another time when there is not an emergency.
Second, there are numerous practical challenges to having the bar exam at an undetermined time in the future. Because graduation is coming up, I have been trying to plan a study schedule for the bar exam, but, like everything else at this time, the exam date is uncertain, so it has been hard to plan adequately. Normally, new graduates study on a rigid schedule for two or three months before the exam. At this time, it is not clear when the exam can be held safely, so new graduates would have to study an uncertain amount of material every day for an indefinite amount of time. This presents the possibility of burnout or inadequate preparation if there is not more than 3 months’ notice of the new exam date. In addition, I have accepted a position as a judicial clerk that will begin at the end of the summer, so I might be beginning a brand new job at the time the bar exam becomes possible again, which could present additional practical challenges. Though possible, relying on an uncertain rescheduling of the bar exam does not seem like an adequate solution to the problem at hand.
Finally, I would also ask the Court to include clarification in the final rule that judicial clerkship hours meet the requirements for supervised practice hours. Judicial clerks do many of the things attorneys do such as researching the law, writing, and understanding and applying legal arguments. These positions are as valuable to learning the law and legal skills as other kinds of supervised practice, so clerkship hours should be sufficient to meet the supervised practice hour requirement.
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.
You “neglected to apply for the bar”? That is a major difference between you and your peers.
Thank you for giving me an opportunity to clarify my comment. When I say “neglected to apply for the bar” I am referring to neglecting to apply for the bar because of circumstances which have changed, not simply neglecting to apply for the bar out of forgetfulness, apathy, poor planning, or an oversight of the like.
If the bar application were to be reopened this would give myself and similarly-situated students the opportunity to also apply for the bar, as did our peers.
“Neglecting” to apply for the bar exam is not quite as insignificant as you claim. The purpose of this order is to allow for those students that were relying on the July exam to practice. If you were not relying on the July exam then you have not been harmed. You’re still allowed to take the next bar exam.
I understand your point and see the reasoning behind only allowing those who planned to take the bar to gain privilege. However, I feel as if the purpose behind this order is to assist Utah law school graduates whose lives have been affected by the virus. The effects go beyond those who applied for the bar, and I simply make my comments in an effort to assist similarly-situated students. If the bar disagrees with my reading of the purpose I can accept that, but only hope to point out what some students are facing for consideration.
I disagree with the order’s disallowance of students from receiving the benefits of the order simply because they did not apply for the bar prior to April 1st. 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.
JD Candidate 2020
University of Utah
I am a 3L at BYU in a similar situation. I plan on taking a JD advantage job after law school, and so I did not originally apply to take the July bar exam. I would still like to participate in pro bono work, however, and feel that the difference between applying for the bar by April 1 and choosing to wait is small.
As such, I agree with the proposal put forward by Brittney MaLynn Herman below, which would reopen the application period for recent graduates. This would afford individuals like myself the same benefit as our peers, while also allowing us to serve the public and the State of Utah.
Why not consider an appeal process for either (i) extreme circumstances warranting a delay in application or (ii) where a recent graduate could prove they have a job lined up in Utah (to demonstrate their intent to use their Utah bar admission forthwith)?
If a recent graduate does not have a job or has not been actively pursuing work in/related to the legal profession, it seems like that graduate is trying to take advantage of just being barred somewhere for the sake of being barred.
In the alternative to reopening of applications I agree with the comment expressed here by anonymous to allow for an appeals process.
The fear of students ‘gaming the system’ does not take into account that graduating students who did not apply for the bar have fulfilled the same graduation requirements as those students who did apply for the bar and are now receiving benefits under the order. But for these non-applying students failure to apply for the bar, they would receive the benefits of this order. This minor difference should not prevent the students from the benefits their peers receive. As such, I support the Utah bar if it chose to re-open the application period for these students.
I agree. There are a number of reasons a graduate would not have applied for the July bar.
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.
In addition to the aforementioned, I would also suggest that the Utah Supreme Court clarify the proposed order in the following way. I suggest that the Court include explicit language along the lines of “nothing in this Order shall preclude an employer from requiring passage of a bar exam as a prerequisite for continued employment.”
It is likely that no such language is required, but by including this language, or substantially similar language, the Court may reduce the amount of employment-related lawsuits regarding a situation where a law firm requires a new hire to show passage of a bar exam.
I think the comment by Jeff Enquist articulately highlights my main concerns with this proposed rule.
While I have a great amount of respect for the Court and the numerous people involved in putting together this proposed rule – some of whom personally taught me in law school – I believe that postponement of the bar exam is a much better alternative to this rule. In addition, I fully support the ability for recent graduates to practice law with supervision until they can take the exam.
If inexperienced lawyers don’t need to take the bar exam, it would only make sense for much more experienced lawyers not to have to take it either.
I agree. Especially attorneys licensed in other states that would like to motion into the Utah bar.
Thank you to the Utah Supreme Court, the Utah Bar, and all of the involved parties that came together to discuss solutions for licensing attorneys in these uncertain times. I am a third-year law student at the S.J. Quinney College of Law who is signed up to take the July 2020 Bar Exam. This order directly affects me. I recognize that the hardships of a global pandemic are impacting everyone so I am grateful for the efforts that are being made to address this specific problem. I support the order because it alleviates issues that my peers and I are facing with current circumstances.
Because of this order, I will be spending my post-graduate time earning real-world experience and dedicating pro bono hours to improving my community. I plan on focusing my pro bono time on employment-related issues. I prefer this option over a delay in the exam because it offers important flexibility for employment and it lets me focus my time on working for clients who need help.
I believe that there are multiple ways to adequately license attorneys, and the bar exam is just one of them. In choosing a diploma plus privilege, I think the court is accurately weighing the different interests in licensing while carefully considering the need for modifications. I strongly believe that my peers are prepared to practice under supervision and, upon completion of hours, practice without supervision. Any stigma will be erased as soon as we show the legal community and our clients what we can do.
Again, while I understand that everyone is facing problems at this time and that issues regarding COVID-19 will eventually pass, this order will help us get through it.
I support the Order; thanks to those who worked on it. One question. If this is in part an access to justice issue, are the applicants required in any way to spend their 360 hours actually helping those in need? Or is that just a hope? Will BYU and Utah’s pro bono programs and Legal Aid, etc. be able to help coordinate this?
I completely agree with the comments here proposing that the requirements of (a) recent graduation and (b) having never taken a bar exam are counterproductive and counterintuitive, as they would exclude attorneys who have been practicing for many years (even in Utah) but who for one reason or another need to take the Utah bar.
The proposed order would give preferential treatment to brand-new law graduates while requiring house counsels seeking full licensure to continue to wait out the current crisis.
I do agree that the order should only apply to timely applicants for the July 2020 exam given that that is the only exam to date facing COVID-related disruption.
Thank you for considering my comment.
The order cancelling the bar exam for new attorneys is an excellent idea in this anno rabidus. However, it should include all candidates for the bar who are, or are expected to be, residents of Utah. Attorneys with several years of practice in another state but have recently moved to this state will need to practice and in the absence of an exam will be unable to work. Moreover, such candidates, having passed another bar are a good bet for a successful and helpful practice in our pretty great state.
April 14, 2020
The Honorable Chief Justice Matthew B. Durrant
The Honorable Associate Chief Justice Thomas R. Lee
The Honorable Justice Constandinos Himonas
The Honorable Justice John A. Pearce
The Honorable Justice Paige Peterson
Re: Proposed Order Regarding Utah Bar Admission
Dear Chief Justice Durrant, Associate Chief Justice Lee, and Justices Himonas, Pearce, and Peterson:
I am writing to support the Proposed Order based on my twenty-two years of law teaching, three years of teaching bar review courses for Kaplan, five years of practice experience, and three years teaching at Marquette University Law School in Milwaukee, Wisconsin. Based on these experiences, I have full confidence that the Proposed Order will not endanger the public in any way and will not diminish the competence of the practicing bar. In fact, the Proposed Order will benefit the public greatly and reduce resource disparities among our law graduates. The arguments against the proposed order seem to be (1) because I had to take the bar; (2) because everyone else has to take the bar; and (3) because there is some tenuous connection between the bar examination and being a competent attorney. I believe (1) and (2) are irrelevant, and I disagree with (3).
Teaching and living in Milwaukee, Wisconsin, I experienced first-hand the diploma privilege at work. Marquette students worked hard in law school and did not “skate through” because they knew that they just needed to graduate to be practicing lawyers. Once graduated, attorneys who were admitted without examination practiced law in exactly the same ways as attorneys who did take an examination. My husband, who had practiced at Baker Botts in Houston and then was a partner at Godfrey & Kahn in Milwaukee and saw no differences between “bar examination attorneys” and “diploma privilege attorneys.” I had a former student from the University of Houston Law Center who moved to Foley & Lardner in Milwaukee, and she never groused that she knew more than her colleagues because she had sat for a bar examination. The people of Wisconsin did not complain that they were offered sub-par legal services. Malpractice was no more rampant than in other states. The diploma privilege serves Wisconsin well and should be a model for other states.
Having been a law professor for twenty-two years and, perhaps more importantly, having taught bar review classes for Kaplan, I do not feel that the bar tests the core competencies of being a lawyer. However, as the comments suggest, the practicing bar is full of attorneys who feel that everyone should overcome the same barriers that they did. In addition, an entire industry has grown up around bar examination preparation and extracts profits from our law students who fear failing the bar. The topics tested on the bar are generally topics that are testable, but not necessarily relevant to practice. For example, in Business Organization, bar examinations often test rare or obsolete topics such as ultra vires, the de facto corporation doctrine, and the rarely-successful-in-real-life theory, piercing the veil. I often tell my students that there are real-world business organization issues and “bar exam” issues. The bar exam also focuses heavily on first-year course topics, testing them a full two years or more after the law student took that course. I do not believe that a multiple choice test on a wide array of legal topics chosen not for relevance but for ease of testing accurately assesses whether a law student has the core competencies of a practicing attorney.
As the Associate Dean for Faculty and Curriculum at Brigham Young University J. Reuben Clark Law School for four years, I have obsessed over our bar examination results. What I can tell you is that at BYU, almost everyone passes the Utah Bar the first time, and almost everyone who failed the first time passes the second time. In the meantime, the bar has taken hundreds of hours and thousands of dollars from each bar passer. Because of this, the bar works mostly as a tax on admission. Those who can pay for expensive bar preparation courses and can incur the opportunity cost of their preparation time are admitted easily. Those who cannot are admitted with more difficulty. Furthermore, the students who fail the bar the first time often have life experiences between graduation and the bar examination that make the costly preparation impossible. The bar examination seems to be assessing privilege and access to capital more than legal competence.
Finally, I would like to applaud the Court for being willing to consider alternatives to merely postponing the July bar to the Fall. Though postponement seems like the easiest answer, the inability to be admitted to the bar for an additional number of months post-graduation will fall hardest on our students with the fewest resources. Graduates going to work at large firms will be staffed on teams, and the fact that the graduate cannot sign a pleading or appear in court will not hinder the team. These firms will adapt to having their entering class have to take the bar in Fall. However, graduates going into public service, government service, or smaller firms will find that a postponed bar exam will be more difficult. Graduates who had difficulty postponing employment for a few months to focus on the July bar will face even more challenges taking the time to prepare for the bar in Fall. The gaps in resources that the bar examination highlights will be even more visible with a postponed bar examination.
I hope that Utah will lead the country in innovation and creative thinking in this area. Just because we have always done something in one way does not mean that we have to continue doing it the same way. The people of Utah will have serious legal problems in 2020 and beyond because of the COVID-19 pandemic. Providing them competent counsel sooner rather than later benefits everyone. Thank you for your hard work on this issue.
Very truly yours,
Associate Dean for Academic Projects and Interim Dean of Students
George Sutherland Chair and Professor of Law
Brigham Young University
J. Reuben Clark Law School
I agree with measures to prevent the spread of an infectious disease. I see value in administering a bar exam. Don’t think these concepts are mutually exclusive. I am confused as to why the exam is not administered online or postponed. Doesn’t this feel like a premature decision? Why not wait a month to see where we stand. Delaying it would just give an extra month or two for law students to better prepare for it.
These other comments may be of some value:
“I failed my bar exam last year. I lost thousands of dollars preparing for the exam, not being able to work during that time. Because I failed the bar exam, I could not get a job, took out loans, worked part time at a retail place. I was getting ready to retake the bar and now I’m not eligible to take it, will have to wait many months for the opportunity to take the exam? Other students who graduated from my same university will be practicing law before I do, just because they graduated a year later. Is this fair? I think it’s just another example of institutionalized racism, elitism, and failed leadership.”
” I don’t understand why I am being punished for graduating a year early? Also, staying at home during a Pandemic is rough. Ok, guess what, Practicing law during a pandemic is rough too, and we are setting them up for failure when the real world doesn’t baby them whenever there is an issue. I’m sorry but we all struggled through a lot being at home last year and still took the bar exam. This year’s students have been at home, without finals, with their loved ones, posting on Instagram how much they love their lives now, give me a break, they can study for the bar, take it virtually, take home exam, etc. The schools could administer them online. It’s lazy and easy to just cancel the bar and not put the work to come up with a solution that doesn’t privilege the students who graduated this year.”
” I guess all it took to get 100/100 is the world to end. We didn’t need Dean X to run a marathon.”
Although I responded to critiques and concerns of others generally in my own comment, I feel compelled to respond to this comment in particular. Despite the proponent’s assertion otherwise, these comments are of no value. The level of sarcasm and disrespect for the hardships that several 2020 graduates are currently facing is unwarranted. And honestly it is disappointing to read coming from someone whom I know personally.
While there is space for legitimate criticism of aspects of the draft Order, these comments (particularly the second) serve no other purpose than to disrespect, provoke, and purport inaccuracies.
Now back to studying for my exams (which, contrary to someone’s belief, we do all still have to take).
I am a 3L at the University of Utah, and I support the Supreme Court’s proposed order. Briefly reiterating my classmates’ comments, I support the Supreme Court’s proposed order because:
1) I do not believe that the Bar exam reflects competency.
2) I believe that gaining practical experience to prepare for the practice of law is substantially more valuable than studying for a standardized test.
3) I believe the standards the Supreme Court has adopted to ensure students receive adequate supervised practice are sufficiently high enough that they should appease even the most skeptical naysayers.
a) In fact, the standards are so high that I believe the Supreme Court can lower the requirement for supervising attorneys to have seven (7) years of experience to five (5) years to help smaller practices and organizations that may not have such highly experienced attorneys.
4) I believe that cutting out law schools that do not have a passage rate higher than 86% is reasonable.
5) I believe the University of Utah and Brigham Young Universities are excellent institutions that have prepared their students to practice law in Utah. The University of Utah requires its law students to take a course on the major subjects that the Bar exam tests and to pass these courses with a satisfactory grade.
6) I believe the Supreme Court should and is acknowledging the financial and emotional hardship that indefinitely postponing the Bar exam will have on a significant number of law students, their careers, and their families.
7) I believe the Supreme Court should and is acknowledging the growing demand for legal representation in our community. The Supreme Court is addressing this by giving law students the opportunity to obtain their license through supervised practice and hoping law students will use this opportunity to address the gap for justice. And, I believe law students will rise to the occasion and provide such pro bono or low bono work to obtain their hours.
8) Lastly, I applaud the Supreme Court for its forward-thinking and compassionate handling of the situation.
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.
Thank you for the opportunity to comment on this proposal.
It is not clear whether the first-time rate is specific for Utah, specific for all first-time July 2019 takers, or cumulative for all Feb and July 2019 takers. Clarity on that would be helpful.
It also appears that this method could favor in-state law school attendees. This would discourage future lawyers who intend to practice in Utah, having an impact on the access to justice gap, and would be devastating to those law students who went to another school outside of Utah but planned to return. This has the potential to penalize them for going to a non Utah school (despite going to those schools for a myriad of reasons, whether financial, etc.).
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 greatly appreciate the creativity and thoroughness in this order to combat the current, rare situation we find ourselves in. It is a gracious and thoughtful move on behalf of those test-takers whose careers are affected by the closure of testing centers.
As Mark H. states, “I also agree that the order should be expanded to permit lateral attorneys moving [or who have moved] to Utah (who are members in good standing of the Bar in another state and have submitted a timely application for the Utah July 2020 bar exam)” should also be approved in UT, not just new graduates.
These are individuals who passed their states’ exam, and many have been practicing for years! We should be considering all of Utah’s citizens, not just Utah’s law program graduates.
I know individual(s) who are currently in-house counsels, and their career options will remain limited until they’re able to be fully barred in Utah, which they cannot do if the exam doesn’t happen and they are excluded from this order.
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 write in support of the proposed policy; I hope that my unique perspective as someone with both a long and varied practice background and a lengthy career in law teaching adds at least a little value to this discussion.
By way of background, I spent ten years practicing law full-time before becoming a law professor in 2006, and I have continued to practice on a more limited basis since. Moreover, I have practiced law in a variety of different contexts–I spent time as an associate at an international law firm, as an associate and partner at a regional law firm, and as an associate in a small insurance defense practice as well. Perhaps most important, I have practiced law in two different states, including one that has thus far always required bar passage (Texas) and one that has long had a diploma privilege for students graduating from one of its two in-state law schools (Wisconsin). Although the 14 years I have spent as a law professor also inform my perspective on the proposal to some degree, much of what follows is based upon my observations from practice.
The limited diploma privilege embodied in the Utah Supreme Court’s proposed emergency modification is a necessary and appropriate response to the extraordinary dislocations occasioned by the COVID-19 outbreak. Moreover, most of the standard criticisms of the proposal are rooted in some combination of ignorance, jealousy, or thinly-veiled self-interest. As a result, those criticisms are largely, if not entirely, misplaced. The Court should implement the emergency modifications as proposed.
As a threshold matter, it is worth considering precisely what the bar exam tests, what bar passage is intended to demonstrate, and what it actually demonstrates. The Uniform Bar Examination (adopted by Utah in 2013) is a survey instrument, testing the examinee’s surface-level black-letter legal knowledge across an enormous range of subjects (Business Associations, Conflict of Laws, Constitutional Law, Contracts, Criminal Law & Procedure, Evidence, Family Law, Federal Civil Procedure, Real Property, Secured Transactions, Torts, Trusts & Estates). Bracketing for the moment the UBE’s three-hour Multistate Performance Test component (about which more below), the UBE as a practical matter suffers from a serious “Goldilocks problem.” That is, it simultaneously tests both far too much and far too little.
Most Utah lawyers–even so-called “general practitioners”–will ultimately specialize to a significant degree. The great majority of attorneys will thus rarely if ever encounter the majority of bar exam subjects again after the test. And for those exam subjects that are relevant to a given lawyer’s practice, the bar exam demands too little. Applicants can pass by parroting back what amounts to superficial knowledge of basic concepts. No attorney could ever provide competent legal advice on the basis of the knowledge she acquires while studying for the bar, yet she must spend countless weeks drilling that largely meaningless information into her brain.
Notwithstanding the Goldilocks problem, the official line in most jurisdictions is that the bar exam is intended to ensure that aspiring attorneys demonstrate some “minimum competency” before being admitted to practice law. This may indeed have been the original purpose animating the adoption of bar examinations when they first began to appear in the U.S. in the late 19th Century. But modern law practice and the realities of modern standardized testing together suggest that the bar exam in its current form simply is not up to that task. Instead of testing “minimum competency” in any meaningful fashion, bar exams in the 21st Century at best test some combination of (1) memorization skills; (2) a peculiar form of “diligence” that rewards those whose lives are arranged such that they can devote unbroken focus to their studies for a period of many weeks leading up to the exam; and (3) a limited and only marginally useful form of time-pressured legal reasoning skill that effectively has no analog in the actual practice of law.
Unfortunately, it would be both time- and cost-prohibitive to create and grade a bar examination that would in fact ensure “minimum competency” in newly-licensed attorneys. Such an exam would necessarily have to mimic actual law practice to a far greater extent; for example, it would at a minimum include components (1) assessing the applicant’s ability to research complex legal and factual questions effectively, (2) evaluating the applicant’s diligence in staying on top of the day-to-day responsibilities of the practicing lawyer (rather than evaluating that characteristic indirectly and decidedly imperfectly by equating successful traditional bar exam studying with such diligence), and (3) quantifying in some way the applicant’s ability to engage in the slower, more deliberative forms of legal reasoning that characterizes actual law practice. This is a tall order for any bar exam in any state.
I am struck, however, that the proposed emergency modification—and in particular its requirement that applicants successfully complete 360 hours of supervised practice—comes far closer to satisfying the goals of a properly-designed bar exam than any current traditional testing paradigm. Indeed, the supervised practice requirement will effectively require applicants to perform—repeatedly and with real-world consequences and implications—the tasks associated with the one genuinely valuable component of the UBE: the Multistate Performance Test. And the applicant will have to demonstrate the competencies tested in the MPT over the course of 360 hours rather than just three.
The supervised practice component of the proposed emergency modification thus addresses two of the major shortcomings of the traditional bar exam. First, it will reduce or eliminate the possibility that the small sample size on the MPT (two 90-minute questions) will yield inaccurate results. Second, it will provide genuinely useful indications regarding the applicant’s diligence and level of personal responsibility, in a form far more directly analogous to the actual practice of law than two months of cramming black-letter law into short-term memory ever could.
I turn now to the parade of horribles offered by critics of the proposed emergency modification, and in particular to claims that the limited diploma privilege contemplated in the proposal will somehow put Utah clients at risk. With all due respect, such claims are ridiculous.
I spent three years litigating civil cases in Wisconsin, the only state in the U.S. with a diploma privilege for students graduating from one of its two law schools (the University of Wisconsin and Marquette University). Importantly, the Wisconsin diploma privilege is far more liberal than the version contemplated in the proposed emergency modification; it requires only that applicants (1) satisfy a traditional character and fitness evaluation; and (2) graduate from either school having taken certain core courses, the substantial majority of which are required courses at every law school in the country. There is no supervised practice requirement.
Moreover, the diploma privilege applies to both Wisconsin graduates and Marquette graduates. The University of Wisconsin is traditionally ranked in the same general cohort as the two law schools that generate the majority of Utah bar admissions (this year, Wisconsin is ranked #38 by US News, one behind BYU at #37 and seven ahead of Utah at #45). The same cannot be said for Marquette, which traditionally ranks somewhere between the mid-80s and low 100s.
Nonetheless, in three years of practicing daily both with and against Wisconsin and Marquette graduates, I never once saw even a hint of lower quality among the “diploma privilege” lawyers who dominate the Wisconsin bar relative to the “bar passage required” attorneys with whom I practiced in Texas. If anything, the arrow went the other direction. In seven years of Texas practice, I encountered more than a handful of genuinely unqualified and incompetent attorneys; I did not meet a single Wisconsin lawyer to whom I would apply either label. Many of those Wisconsin lawyers attended Marquette for law school, and thus took no bar exam.
To further put things into perspective, consider that most of the schools in Marquette’s rankings cohort have bar passage rates of well less than 86%. With this in mind, here is what I am really saying: Based upon my (admittedly anecdotal) experience, even a school that would in all likelihood generate a bar passage rate of substantially less than the 86% required in the proposed emergency modification still generated lawyers that are at least as qualified and capable as those who managed to pass the Texas bar.
I will be blunt: To this point, the vast majority of criticisms I have read to this point seem to come from ignorance (much of which may well be excusable, given local attorneys’ lack of experience in the one U.S. diploma privilege jurisdiction), from jealousy akin to the sentiment that makes it so difficult to get rid of fraternity hazing on college campuses (“If I had to go through it, so should you!”), or from either direct or indirect self-interest (including those with a financial stake in the bar exam industry and those who would simply prefer to erect barriers to entry to additional lawyers). In light of the extraordinary nature of the current situation, I see little reason to indulge these perspectives. There may be better arguments against the limited diploma privilege the Court has proposed, but I cannot imagine a circumstance in which they overcome the overwhelming tide of arguments favoring the proposed emergency modification.
Professor Paul Stancil
J. Reuben Clark Law School
Brigham Young University
The vast majority of criticisms you have read have come from other attorneys who basically want recent grads to take the bar because of the “if I did it, you have to do it” mentality? Really? That’s vast majority of criticisms that you see? You must have skimmed over the comments pretty quickly and remembered only what you wanted to remember. To be blunt…this is the same self-serving mentality that The Utah Supreme Court, BYU faculty/administration, and Utah faculty/administration showed when they advocated for the 86% threshold as part of the requirements to qualify for this diploma privilege. What about the countless criticisms from attorneys and 3L students who aren’t in agreeance with the arbitrary, biased, and discriminative 86% threshold? Ironically, that 86% first-time bar taker passage rate is the perfect number to allow all BYU and Utah grads and keep the most non-BYU and non-Utah students out? What about the countless criticisms from the already licensed attorneys, who are moving to Utah or have already moved to Utah to practice here, that have to take the Utah Bar Examination and are excluded from this automatic licensure in Utah?
I am a third-year student at the University of Utah and I support the proposed order. I am grateful that the Court and the Bar are thoughtfully addressing this unprecedented situation. As we all know, there are still countless variables and other unknowns surrounding the consequences of the COVID-19 pandemic. I feel fortunate to live in a state and be part of communities that have, by and large, responded to this global challenge with seriousness, dedication, and compassion. I am, however, hesitant to speak directly to my individual hardships for two reasons. First, I have seen in some of the comments above a genuine lack of respect and callous response to individual circumstances. For whatever reason, comment boards—especially those that allow for anonymity—somehow tend to bring out the worst in us sometimes. However, most importantly, I think the proposed order is much more than a merciful response to a particularly affected group of people. The proposed order is good policy and it is capable of benefiting the legal community far beyond the graduating students. To this end, I would like to make several comments.
Delaying the bar exam to some unforeseen date does, in fact, work a tremendous hardship on graduating students and it also negatively impacts the employers of these students and Utah’s broader legal community. Of course, students who would benefit from this Order are experiencing varying degrees of hardship due to the Pandemic. That said, by the time things are sorted and life is more or less back to normal, each 2020 graduating student will have suffered some form of significant hardship due to the Pandemic and its consequences. These hardships are unlike any hardship faced by students in the past and hopefully, they will be unlike any to come in the future.
That said, no one is asking for a “pity party”. There are many in our community, our country, and around the world whose suffering is immeasurable, and our thoughts, prayers, and unity should be for them. More to the point, the proposed order is a common-sense approach that upholds the integrity of Utah’s legal profession, ensures that entering lawyers are sufficiently competent to navigate the day-to-day practice of law—something the bar exam simply does not do—and is responsive to the reality of the moment: that each of us in our various capacities should be trying to simplify, rather than complicate, life for ourselves and for those with whom we work and interact. Yes, graduating students are not the only ones harmed by the consequences of the Pandemic, but it does not logically follow, just because students are only one part of an entire society in pain, that we should not consider options that reach similarly optimal outcomes and that makes life a little less complicated and easier for this subset of the population. Not only do I support measures like this for myself and the students here, but I would support them for others in other circumstances.
I would also like to make a point to the valid concern that the bar exam serves as a barrier to incompetency and “weeds out the bad apples”. To some extent, it very well may. However, the competency that it tests is not really a competency at all; the exam tests the taker’s drive and determination to work hard. Having already begun to thumb through my bar prep materials, I would point out that the bar prep provider makes clear in its introductory pages that the goal of the preparer is less about applying the knowledge and skills he or she has acquired throughout law school, and more about learning how to take a particular test. The preparer must learn a new skill: how to pass the bar exam. And like any other situation, in order to develop that skill to the required standard, one must dedicate sufficient time to learn and practice. I agree that hard work and self-discipline are fundamental to the practice of law; however, the bar exam is not the only way would be attorneys can demonstrate these skills. A mandatory set of hours under the tutelage of an experienced and competent attorney(s) is another way graduating students can demonstrate these necessary skills. I don’t think there is any debate that the bar exam, and more importantly bar preparation, is more valuable to a new attorney’s professional development or that it somehow benefits the attorney’s employer more than actual supervised work. If hard work and self-discipline is the standard we’re looking for then the first semester or two of law school (at least at the University of Utah) probably does the most to weed out those who are not interested in putting in the necessary time to do the job right.
Over the past three years, I have had the honor and privilege of getting to know most, if not all, the students in my graduating class and even some from BYU. I can say with confidence that these individuals have the competencies to begin adding value to the legal profession immediately. Even if one or two were to sputter and flinch along the way, it will not be caused by a lack of competency; if anything—barring external circumstances—it would likely result from a lack of effort. To this point, like the bar exam, the 360 hours of supervised legal work will tend to weed out those who are unwilling to put in the time, However, unlike the bar exam, requiring 360 hours of supervised legal work, and allowing graduates to start implementing what they know and learning what they don’t, directly benefits not only the students and their employers but also the underserved and the legal community overall.
I am not afraid of hard work. I am not afraid of the bar exam. However, I am also not afraid to stand up and say: hey, maybe there’s a better way. I hope, regardless of the decision made for 2020, that the Court and the Bar will do some real analytical research into the bar exam. If it is the only, or best measure for regulating entrance to the profession then at least we’ll know; however, it very well may not be and now might be the right time to change it.
I would also like to voice my support for making the proposed order more inclusive. I recognize the legitimate concern of quality control; however, I believe that the better approach would be a back-end approach (maybe more hours for different tiered schools) rather than a front-end exclusion.
Wow, you might be the first BYU or Utah 3L on this whole comment thread that recognizes how bad the situation might be for an out-of-state 2020 grad from a school that doesn’t qualify under the biased 86% threshold set by the Utah Supreme Court. Most of the in state grads are so over the moon happy about this proposed order that they don’t take the time to sit back and realize the extremely negative impact that this order could have on those graduates from “non-qualifying law schools” who have applied for the July 2020 Bar Exam, if the Order is applied as written. Moreover, the majority of those out-of-state law school graduates would probably still be considered residents of the state of Utah because they probably moved to a new state solely for the purpose of going to school with the intent to return to Utah to practice law and live life. I commend you for your ability to look past something that benefits you and to think about how it affects others that find themselves in a less-favorable situation than you find yourself in.
I am a current 3L student who would qualify for the diploma privilege. I would be extremely grateful to see this order adopted because it will allow me to spend this summer serving people who will sorely need my help. I work for the Utah County Public Defenders Office in the Juvenile Court division. The pandemic and the resulting economic crisis have hit our clients with extreme ferocity. Many have lost jobs; some are trapped at home with an abusive spouse or partner. Some of our clients with substance abuse issues have relapsed or are suffering withdrawals. Many have experienced difficulties with continuing their weekly visitation with their children. In short, our clients’ difficulties have not been put on hold, and there is likely to be an explosion of activity in our court when it reopens this summer.
The effects of these harms will be felt by our clients long after the pandemic is over. By qualifying for the diploma privilege, I will be able to spend the summer engaged full-time in helping these people rather than having to focus on preparing for the bar exam. My office would sorely miss my contributions if I had to focus my time on bar preparation. The income from this extra work will also allow me to support my wife and several family members who have all lost jobs recently. I went to law school to help the less fortunate, and with the diploma privilege I can begin serving them right away.
One last note: I believe that I will be far better prepared to enter my profession by spending this summer working full time at my office rather than studying for the bar exam. Most of the subjects covered by the bar exam are of limited relevance to my practice area. The experience I will gain by working in my office full time, however, will be an invaluable tool to prepare me for my professional practice.
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 am a BYU 3L graduating with a JD/MAcc (joint Juris Doctor and Master of Accountancy). I plan to apply for Diploma Privilege under this proposed order. BYU Law School encourages students to seek work opportunities outside of Utah when possible, and I have accepted a position with KPMG, Los Angeles, to start work in the fall. Despite working out-of-state, due to the nature of the work, I can be licensed in Utah rather than in California. This was my plan, and I had registered to take the Utah bar this summer. KPMG’s Los Angeles office has many active licensed attorneys, but none have ever practiced in Utah. This raises the concern that I may not meet the 360-hour requirement. Students going to work for a Utah firm with Utah attorneys will easily reach their hours, but without a Utah licensed attorney in my office to supervise my work it is impossible for me to do so.
Possible solutions to help students in my situation are 1) to allow any attorney who has been licensed in any state for 7 years to qualify as a supervisor, 2) to include a provision that allows an out-of-state attorney to coordinate with a Utah attorney to supervise the prospective attorney’s work, or 3) to allow a qualifying Utah licensed attorney to supervise the work performed by a prospective attorney working out-of-state.
Another concern is the likelihood that many students’ start date will be pushed back to late 2020 or early 2021, which some firms have started doing. After speaking with hiring supervisors with my firm, and in discussions with fellow classmates, it appears the first action employers will take before cutting salaries or layoffs will be to delay start dates. If a start date is pushed to late 2020 it may be impossible for students to complete the 360 hours by the December 31, 2020 deadline. A solution to this likely problem would be to simply change the deadline for the 360 hours to April of 2021, or approximately 1 year after graduation.
I appreciate your consideration and endeavors to help us navigate these tumultuous times. The unprecedented opportunity for Diploma Privilege will allow me and my fellow classmates to better prepare for the inevitable economic hardships that will come as a result of Covid-19.
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.
With regard to your criticism of a “How to Pass the Bar” class. In the future if the bar exam continues to be a requirement for licensure, I assume it is because the knowledge the bar tests is highly valued and prioritized. Therefore, I fail to see why a class dedicated to solidifying this knowledge is objectionable. It offers exactly what you say you want, that students “learn the law.”
I also take issue with the criticism of law schools offering Mindful Lawyering. The ABA has made it well known that mental health is an issue within the legal community. I appreciate that the Utah Bar and S.J. Quinney have taken the issue to heart. As an outsider, it is easy to criticize a class in which you have not partaken. Please recognize that not all classes are dependent on intellectual rigor as a teaching tool. This does not mean the class does not teach and is without benefits. Mindful lawyering required a mental buy-in and consistent, whole-hearted emotional effort.
As a participant in Mindful Lawyering, I will say the class was one of the few classes that gave me practical lawyering skills. I developed a better awareness of my stress level and how to care and respond to those stress levels. My single most important takeaway was a mindful listening exercise that I honed by practicing on intakes with pro bono clients. The exercise taught me to give my full attention to clients while reserving judgement and offering empathy. Since the class, I often use “mindful listening”during stressful situations. So far it has helped me in my oral arguments for Appellate Practice, a mediation competition, and meetings with professors and judges.
If we want to optimize legal education, we need to be receptive to different types of learning and different measures of competency.
If you think “mindful lawyering” is providing the best practical experience in how to competently practice law then I think you’ve just made the point that law schools are not adequately preparing students for practice. Listening to clients is of course a fundamental aspect of practicing law but you don’t need graded credit hours to tell you that.
I think this is an extreme and misguided alternative to simply delaying the bar exam. It is unfortunate that we are in this current situation, but having a graduate be “supervised” is not the same thing as proving they have the competence to be an attorney. There are numerous issues with the proposal. First and foremost, a number of examinees will be permitted to practice law who would have failed the bar. Second, it unfairly limits who would qualify. If someone were planning on opening their own practice they will be forced to be unemployed until the February bar. Third, if someone had taken the February bar and failed, they are excluded so they must wait a whole year to get admitted? I could go on and on but the biggest issue I see is there is already a mechanism for new graduates to work. Rule 14-807 already permits a recent graduate to work under the supervision of a licensed attorney. Why not simply add additional testing dates in the end of summer/fall. This will give new graduates a way to work and gain experience while still maintaining the requirement that you must pass the bar to be a licensed attorney. I strongly oppose this proposal.
Does passing the bar exam prove competence to be an attorney? Either answer with a yes or a no.
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.
Ivan Meitus Chair and Professor of Law
Brigham Young University
J. Reuben Clark Law School
I recently mailed a letter to both the Utah and California state bars, obviously before I was aware of this proposed order. (See April 3 letter inserted below, received by these state bars on April 6.) The contents of my letter and request articulated therein are self-explanatory. I believe it is reasonable to assume that if anyone would be qualified and entitled to practice law under these circumstances in a new state, it would be currently licensed attorneys, like myself, who have been actively engaged in the practice of law in good standing for a sufficient amount of time in a sister state such as California. I strongly believe that all the reasons voiced and advanced for this proposed rule applying to recent graduates apply as well to currently admitted attorneys in other states who have recently permanently relocated to and are seeking to practice law in Utah.
April 3, 2020
VIA OVERNIGHT MAIL
State Bar of Utah
645 South 200 East
Salt Lake City, Utah 84111
State Bar of California
180 Howard Street
San Francisco, California 94105
Re: Robert David Vogel
California State Bar No. 63091
July 2020 Utah and California Bar Examinations
Dear Sir or Madam:
I am currently an equity principal in the national labor and employment law firm of Jackson Lewis PLLC and have been a member in good standing of the State Bar of California for over 45 years since December 1974. I am 69 years old and given my current medical condition, I am extremely vulnerable to COVID-19.
For the last 19 years, I have been actively engaged in practicing labor and employment law in Jackson Lewis’ Los Angeles office. For most of that time period, in a part-time capacity, I have also been an arbitrator affiliated with the American Arbitration Association.
Jackson Lewis’ Salt Lake City office historically has had four (4) attorneys. Until October of last year, the only equity principal who worked in the Salt Lake City office was Conrad Shawn Kee. In October 2019, while on vacation, Mr. Kee suffered a major stroke and died at the Helsinki, Finland airport. His sudden tragic demise necessitated my law firm placing a partner in the Salt Lake City office as soon as possible. Knowing that I attended college in Utah (BYU) and had present family connections there, my firm and I discussed the possibility of my leaving Southern California and relocating to Utah for the purpose of managing the firm’s litigation practice there. I ultimately agreed to relocate knowing, that in doing so, Utah’s current rules for the admission of attorneys licensed to practice law in other states would require I take and pass a bar examination like any other current law school graduate. I am currently registered to take the Utah bar examination on July 28 and 29, 2020.
I permanently relocated to Lehi, Utah at the end of January of this year and am primarily working out of my law firm’s Salt Lake City office handling cases on a pro hac vice basis even though I still spend approximately 30% of my time servicing Southern California domiciled clients in California.
Utah State Bar Rule 14-705 states that a currently licensed attorney in another state like me may be admitted to practice law in Utah on motion if the state in which I am licensed (California) provides reciprocity to attorneys currently licensed to practice law in Utah.
It is my understanding that California is one of only 13 states that does not accept reciprocity from other states, like Utah, whose attorneys are licensed to practice in those states, actively engaged in the practice of law and have been in good standing for a sufficient amount of time.
It is also my understanding that in California, if an attorney is licensed to practice law in another state, like Utah, has been in good standing and actively practicing for at least the prior four (4) years in that state and, like me, desired to practice law in California, he/she would be required to take a one (1¬¬) day attorney’s examination.
Employment Law 360, a LexisNexis company, who distributes a daily periodical to attorneys, like me who are actively engaged in practicing labor and employment law, recently published the enclosed article that addressed the adverse impact COVID-19 is having on upcoming bar examinations throughout the United States.
I assume you are also aware the National Conference of Bar Examiners recently announced that it would make a decision on or about May 5, 2019 whether to delay the MBE, MEE and MPT late July examinations to a presently later unknown date in the fall and that New York and Massachusetts have both already announced their intentions to delay their July bar examination dates because of COVID-19.
I believe it is reasonable to assume that if anyone would be qualified and entitled to practice law under these circumstances in a new state, it would be currently licensed attorneys, like myself, who have been actively engaged in the practice of law in good standing for a sufficient amount of time in a sister state such as California and Utah.
I am sure I am not the only one who has a similar compelling story to tell who has been adversely impacted by these unique circumstances beyond our control.
As a result, on behalf of everyone similarly situated, and given the current and future unknown risks and consequences associated with COVID-19, it is respectfully requested that, at least for purposes of the July 2020 bar examination, the California State Bar modify its current regulation and not require currently practicing out-of-state attorneys in other states such as myself to take and pass the one (1) day attorney’s examination who seek to actively practice law in California and are registered to take the summer California bar examination and the Utah State Bar, consistent therewith, temporarily amend its Bar Rule 14-705 and accept and acknowledge California’s reciprocity agreement or, alternatively, temporarily suspend that requirement for purposes of those attorneys currently licensed to practice law in California who have been actively engaged in the practice of law in good standing for a sufficient period of time in California and are registered to take the July 2020 Utah bar examination.
Your courtesy in seriously considering this request under these unique circumstances would be appreciated.
Very truly yours,
JACKSON LEWIS PLLC
s/Robert D. Vogel
Robert D. Vogel
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,
Please. This is a solution working for a problem. The bar exam is until the last Tuesday and Wednesday of July. Barbri and the other bar review companies haven’t even begun sending out their study materials. Of the three different state bar exams I have taken, two were taken when I was working full-time as a partner at a law firm. This includes when I took the Utah bar exam.
The 360 hour requirement is a joke. Ironically, that’s roughly the same amount of time between the exam and when the results being published. The reality is that at most law firms a first year lawyer will spend 40 hours to write a motion. If the Supreme Court really wants to make this in anyway equitable, the requirement would be somewhere on the order of 800 hours. My experience is that when you’re studying for the bar generally it’s about an eight week process doing that full-time. So probably about 320 hours just to study for the bar exam with no guarantee of passing the bar exam.
I just find it very interesting that this has become such a huge issue when the reality is is that the bar takers would be in quarantine anyways while they’re studying for the bar. Barbri’s bar review is totally online all the classes all the test everything can be done remotely. So, there’s no hardship at all.
The other problem I have with this solution is that it penalizes people who were licensed attorney’s in other states. I know of one specific attorney who is dying to move to Utah and who is signed up for the July bar exam. They have practiced for over 20 years in the other state, have an impeccable record of achievement, and would be an outstanding addition to the Utah bar. However, because they are barred in a non-reciprocal state they have to take the bar exam. I would much rather have someone in that situation rather than some new lawyer who’s never practiced law and hasn’t even taken a bar exam before get admitted to the Utah bar.
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 support the proposed diploma privilege order. Considering the current pandemic, I feel this is the appropriate course of action.
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.
Although I recognize the need for an accommodation, I oppose the proposal. At the outset, I agree with the comment of Jeffrey Enquist. In particular, I agree that 360 hours of supervision is an insufficient amount of time to prepare a newly minted law school graduate to practice law without supervision. This places clients at risk. It is notable that while one of the current justifications for the rule is to provide access to justice – including for those harmed by the current COVID-19 induced environment – those individuals may be susceptible to additional risk posed by inexperienced counsel.
I urge the Utah Supreme Court to reconsider the Emergency Modification. As mentioned, some accommodation is necessary. But permitting untested graduates to have the unfettered ability to practice law after just 360 hours of supervision poses not only a risk to the public, but also to the inexperienced lawyers themselves. Indeed, passing the bar exam generally requires months of intense study of practical and pragmatic areas of law, and providing a path to licensure without this extensive study and with just several weeks of supervision seems insufficient. The Court should, instead, consider accommodations such as those outlined by the April 7, 2020 report and resolution of the American Bar Association’s Standing Committee on Bar Activities and Services Law Student Division. That Resolution, available here, https://www.americanbar.org/content/dam/aba/administrative/news/2020/04/bog-040720r.pdf, proposes the authorization of the limited authority to practice law as an emergency measure. It suggests that courts or bar admission authorities consider such things as direct supervision, disclosure to clients and courts of the limited authority to practice law, taking of the bar exam by the end of 2021, and revocation of the applicant’s limited authorization to practice law if the applicant fails the bar exam. These types of proposals seem more appropriate for an emergency measure, instead of one that takes the form of a permanent pass for an entire class of persons.
Although I have sympathy for those facing these difficult times, many graduates entered the profession during 2008, 2009, and 2010. Those graduates, too, faced uncertainty, challenges, bleak job markets, and more. But these lawyers were forced to find a way to move forward, and I expect many of them were better and stronger because of it. I am confident that those who are about to graduate from law school will also find a way to face uncertainty, obtain their licenses, and practice law. In doing so, however, they must be adequately prepared for the practice. Without a bar exam, without the intense study that the exam requires, and with just 360 hours of supervision, I fear these graduates will not be adequately prepared and will place themselves and members of the public at risk.
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.
I am a third-year law student (3L) at the University of Utah and I am in full support of the proposed order. First, I would like to thank the Utah Supreme Court for coming forth with such a measure that will serve to benefit the community at large. As has been said countless times before and will continue to be said, these are unprecedented times. Unprecedented times call for creative measures and this proposed order is not only a creative measure, but its benefits may extend far beyond COVID-19.
The reality of these times and the circumstances of the 3Ls- who are people with families, bills, and mouths to feed like everyone on this thread- are real. When we entered law school three years ago, we had plans and deadlines as to when the financial strain on our families would end. While none of us were naïve about how our plans may have needed to change, none of us could have ever predicted COVID-19. Now, those plans have been indefinitely delayed. Many of the 3Ls are will be left with debt, maxed out loans, no jobs, and no ability to provide for our families. Unlike the millions who have lost their jobs, we can’t even apply for unemployment. We are truly left with few options to get jobs in any area, much less the legal field, if something is not done.
The criticism of such a measure is understandable. However, I am not trying to avoid the bar. In fact, I have spent the last semester of law school in a Bar Preparation class, which would have been on top of my summer preparation that I have already purchased and started. I have already spent thousands on bar preparation in class credits that I will never get back. I am up for the challenge, I am ready for the bar, I am not afraid to take it and given the opportunity- I would much rather have everything back to normal and be able to take the bar in July. That is not the reality of the current state of affairs though. The argument “I had to do it” or “this is how its always been” falls flat in a pandemic. The situation is not the same. In the past, preparing for the bar had a hard date and a guaranteed preparation time. In the past, graduates could give their employers answers as to how much time would be needed to prepare or when the estimated time of licensing would be. Preparing for the bar did not mean studying locked in a house with screaming children, no child care, and a partner working from home in the desk beside them. Preparing for the bar did not mean planning for an unknown date that may never come in 2020. The country is looking for options to cope with COVID-19 and the legal community should do the same.
The last three years that I, along with my cohort, have spent in law school has not been futile. We have undergone hours rigorous academic study, we have worked with attorneys, trained, utilized and honed our skills. We have done the work and in the 360 supervised hours, we can continue to demonstrate or our hard work and dedication to the practice of law.
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 have a family member who is currently trying to prepare for the bar with the current conditions and restrictions is proving difficult and stressful. From the onset of the pandemic he and his wife have been diligent in maintaining social distance and staying at home to protect the health of their high-risk child. There must be many other law students at this time who are in similar circumstances and I believe it would be best to waive the requirement for this year due to our unprecedented circumstances.
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.
I am in support of the Proposed Order. During these unprecedented times, it seems as though many opportunities are being taken away. I appreciate the long hours the Utah Supreme Court deliberated in order to come to this conclusion. Due to these unusual circumstances, I believe this unusual decision is required.
I have the privilege of associating with 3L’s from both the S.J. Quinney and J. Reuben Clark law schools. Each of these individuals have asserted their best efforts during their time studying law. It would be a great detriment to these candidates and their employers to delay their admission to the bar. The Utah Supreme Court is granting these individuals a great opportunity to start their legal careers during this time.
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.
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.
I am strongly in support of the proposed order by the Utah Supreme Court and see the Utah Bar and our Supreme Court. It demonstrates a large amount of foresight by creating an alternative route to licensure.
These are unprecedented times, and the amount of uncertainty in our current world demands adjustment on every front. As a graduating 3L, I can tell you that this order provides comfort and support in a moment when both are sparse. We have no way of knowing when this crisis will calm. The moment that we will feel safe gathering in huge groups is still potentially very far off. I will still take the bar at the earliest time that I can safely do so, but in the meantime, knowing that I am still able to begin the career that I have worked so hard to enter is a massive relief. It adds a huge burden to already stressed students to request that they postpone their professional lives indefinitely. It is untenable to ask employers to not only hire new graduates without a license, but also to allow them the months off necessary to study at an undetermined future date.
To those concerned about competency and needing a test to weed out those unfit to practice, I ask that you read the Proposed Order more closely. First, this is not a pure diploma privilege and it requires 360 hours of supervised legal work before one can be sworn in. Second, this order only provides a route to licensure for those who have already submitted the rigorous application to take the bar, including references, background checks and notarized sworn statements. This order does not eliminate all checks to becoming an attorney. Arguably this order creates a more thorough apprenticeship program that better assesses actual ability and competence. I hope the Court will take this opportunity to research the efficacy of standardized tests in assessing ability or predicting success.
I think it is easy for those who had their final semesters, graduations, and bar exams go according to a specific and well-oiled plan to sit from a place a privilege and judge. Yet those of us going through this process right now are being denied, the ability to plan our future careers with any certainty. This would go a long way in remedying that denial. I would also implore everyone to consider the impact of uncertainty on those who are in difficult financial situations and have children, spouses, or elderly parents at home. I am personally dealing with a lot of stress trying to plan for a different financial future as my loans come due and rescheduling surgeries and recovery periods. I can’t even imagine how difficult it would be to have to plan and take care of a family at this time. This order strikes a reasonable balance and considers, both the need for a rigorous entry process into the bar and the new realities of a post COVID19 world. I truly believe that through the lens of hindsight our Court and legal community will be thankful for this order.
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.
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)
Respectfully, I found none of the above arguments persuasive. You might consider checking your math– but no one will hold that against you, that’s our professional stereotype, right? You seem very concerned about BYU and U of U grads entering the profession here in Utah (these two schools are by far the largest source of 1st year attorneys in Utah). As a graduate yourself of BYU Law, who also took classes at the U during the summer in order to graduate early, I hope you’ll agree that both institutions produce excellent attorneys. I hope you can also understand that one exam should not be the defining barrier between a graduate and the opportunity to practice. For this reason, you can take the bar exam many times, year after year, even if you continue to fail.
It might help to remember what you once said in an article published by BYU Law “Any tree is known by its fruit. In this case, law school graduates’ lives are the fruits of the J. Reuben Clark Law School tree. And over the years, this fruit has been good.” The fruit is still good. In fact, ask any professor at the Y (and I would assume any professor at the U), and you will hear time and time again that the current classes are the best the schools have ever had. Consider, for example, the requirements for entry in the first law school class at BYU. Frankly, the standard was abysmal. Today, BYU is a top 40 school with increasingly competitive admissions. The fruit keeps getting better Bruce. I’m sorry you had to go through hell, but I’m even more sorry that you feel compelled to drag others with you.
I support the proposed diploma privilege order. It’s not practical to administer the bar given current social distancing guidelines, and churning out a bunch of graduates in the state with no way to practice their chosen profession is setting them up for financial and professional failure.
First, I would like to thank the Justices for their dedication to finding the best solution under these difficult circumstances. It is reassuring to know that the Court prioritizes the best interests of its future bar members. As a 3L who has always worked hard to do well and prepare for challenges, I will do whatever is necessary to become licensed, including taking the bar. However, I strongly believe this Order is the best option available in these difficult times. I am one of the bar applicants currently affected by the Coronavirus pandemic.
Currently, both of my parents have tested positive for COVID-19 and are in isolation. This has been a difficult time for me as my dad has underlying health conditions and has experienced many symptoms. I have had to check in with them constantly and make sure they have access to food. Further, I have been placed in isolation because I was exposed to the disease. It has been one of the most stressful times in my life. I am worried about my family and the uncertainty of when this will end. Worrying about what the beginning of my career will look like only exacerbates this difficult situation. I imagine there are many others in a similar situation. The effects of this pandemic have definitely impacted my physical and mental health.
Requiring students to take the bar exam at a later undetermined date will only unnecessarily add to the uncertainty and stress of these times. Many of my peers, who do not yet have a job, will be less likely to find a job. I believe an employer would be more willing to hire a student under this proposed order than under a postponed bar date because it allows the employer to train the student and ensure she becomes licensed. If bar applicants are forced to take the bar exam at future, undetermined date, an employer will have to risk hiring a student potentially a year before she takes the bar exam, investing a year’s worth of resources into her, only to later find that she did not pass the exam. Although I am confident in all of my classmate’s abilities, I imagine employers will make those sorts of calculations. Investing a year in a person is a lot to ask when it is unclear whether they will become licensed and when an apparent recession is approaching. The uncertainty will definitely impact those that do not have a job yet and are relying on licensure to obtain one.
Further, for someone like me who, as of now, does have a job lined up, I am concerned about having to leave my job months after starting it to study for a bar exam. It is more than inconvenient. All of my work and cases, no matter how important, will have to be put aside while I study. Further, my class will likely need to study for more time than a recent graduate would normally have to study for the exam given that we are taking it long after taking the relevant courses. This will only extend the time we have to be away from jobs.
Finally, although the bar exam has been administered for many years, “tradition,” does not justify doing away with this Proposed Order. There is nothing traditional about these times. Time spent caring for my family, and the additional stress that has come with these times, have severely impacted my ability to prepare for the bar, and I am not the only individual affected by this. The impact of the pandemic affects our entire graduating class. No one knows how long this pandemic will continue, but I personally believe we will not bounce back from this as easily and quickly as many think. Even if I am wrong, to leave recent graduates in limbo as to when we can become licensed is cruel.
I have full confidence that the proposed order addresses many of the concerns regarding the competence of 2020 graduates. I feel like it is the best option in these difficult times. During my time in law school, countless practicing lawyers have told me that a lawyer’s ability arises from real-world training and experiences. I know my skills have improved mostly because of my practical experience at work, clinics, and other practical experiences, not any test I have taken.
Hello – I support allowing licensing through supervised practice however it is a disadvantage to out of state graduating students. I am not a Utah resident but graduating from another law school in another state. The 86 percent requirement should either be lowered or should be removed. There are alternatives however that apply fair. The hours requirement is fair because it can apply across the bar applicants.
I disagree with the proposal. Every profession has a “Gatekeeper” of sorts to protect the public. Doctors, psychologists, even beauticians and real estate agents have testing and requirements in order to be licensed. We have licensing and gate-keeping functions, like the Bar, to protect the public. The profession of attorney is rarely a happy one. People turn to us when they need help estate planning, when they have injuries, or when they’re accused of a crime. We owe it to them to ensure the attorneys they hire have been vetted. We have all worked with an incompetent attorney, and the Bar exam is one way our legal community can help try to reduce the amount of people who are not fit to practice law from entering the practice.
Many other states are postponing their Bar exams. I think that is a fair proposal considering the circumstances, but an all out pass for student who happen to be graduating this year is short-sighted and unnecessary.
While the Utah Supreme Court should be commended for recognizing the emotional and financial strain that the COVID-19 pandemic is causing for the upcoming law school graduates, the Proposed Order has several limitations which should be reconsidered.
The Proposed Order does not adequately consider the concept of portability of a license to practice law in different States. Utah is one of 36 States or jurisdictions that participate in the Unified Bar Exam (UBE). As is described on the National Conference of Bar Examiners website, the UBE “Results in a portable score that can be used to apply for admission in other UBE jurisdictions.” The Proposed Order also does not adequately consider complexities associated with the decision regarding which State in which to take the UBE. Although a student may have intended to pursue employment in multiple States including Utah, the decision regarding which State to apply to take the exam, up until now, was relatively inconsequential, as the score could be transferred to any UBE jurisdiction. A student’s decision regarding which State to take the exam may have been based on many factors including cost, passage rates, potential employment opportunities, etc.
There are two groups of individuals who may be negatively impacted by the Proposed Order. The first is a small number upcoming graduates of Utah law schools who applied to take the UBE in a State other than Utah. These individuals could not have reasonably anticipated the pandemic, nor could they have anticipated that the Proposed Order would include a requirement to apply for the UBE in Utah. Given that these individuals have made a huge investment of time and money to attend law school in Utah and given the unforeseen consequences of the pandemic, these individuals should either be allowed to apply for the Bar Examination in Utah and therefore become eligible under the Proposed Order or the State could simply accept their UBE registration from that other State as sufficient to be eligible under the Proposed Order.
Secondly, any individuals who are anxious to take the UBE in order to maintain the ability to become licensed in other States should have that opportunity. The longer an individual waits to take the UBE, passage of the exam becomes more difficult due to the increased time since law school and also due to limitations on study time as the individual will likely be employed. For these reasons, the State of Utah should reaffirm the commitment to hold a Bar Examination as soon as safely possible and make any necessary concessions that would allow the exam to be administered safely.
Why not put these (small) groups of people into the Licensend Paralegal program until they can take a bar?
The pandemic is hurting solo and small practitioners right now, just like any other business. Why do we need more unqualified competition right now?
The Utah Supreme Court has loosened the rules of who can practice in Utah very considerably lately. So-called “DREAMERS” now get to apply. The Licensed Paralegal Program. Now no bar exam at all?
What about the person who graduates top of their class from, say, the Cooley school of law–why can’t they be an attorney here in Utah while the bottom of the barrel graduate from the University of Utah who floated through school in an alcoholic haze (for example) and just barely escaped being expelled gets to practice? Wouldn’t that be an equal protection concern?
I am a third-year law student at Duke Law School and, although I am not planning to apply to the Utah bar, I strongly support Utah’s proposed order granting diploma privilege. Other jurisdictions would be wise to follow in the Utah Supreme Court’s footsteps. Although I and most other graduating law students would be happy to take the bar exam, offering the exam as normal would unreasonably endanger public health. Requiring bar applicants to take the exam while indefinitely refusing to offer it unreasonably harms would-be lawyers, their would-be clients, and the economy as a whole. The only sensible solution is to permit some path to bar admission—such as diploma privilege—while our nation grapples with the COVID-19 pandemic for potentially a year or more.
There are 11 ABA accredited law schools that are below an 86% first-time bar taker passage rate that are higher ranked law schools than the University of Utah Law School. 7 of those 11 schools are higher ranked than BYU as well. It is a joke that the Utah Supreme Court has written this Proposed Order to accommodate all the 2020 Law School grads from the In-state law schools without any regard for students from higher ranked (BETTER) out-of-state law schools. I hope that the Supreme Court realizes that their Proposed Order was not well thought out and if they do pass it as written I hope they understand how many lives they possibly could be ruining because of it. It’s almost guaranteed that if this passes as written they won’t administer the Utah State Bar examination until February 2021. That would mean that there would probably be around 100 or so currently licensed attorneys who are trying to transfer to practice in Utah or 2020 graduates from out-of-state “non-qualifying” schools that won’t be able to work for roughly seven months while their student loans are still accruing interest rates. That’s potentially hundreds of thousands of dollars lost in salary and compounding interest by those who are negatively affected by this biased Proposed Order. I would love for the Supreme Court to explain why they think that an out-of-state law student should be punished because other people who previously went to their law school could not pass the bar examination.
This Proposed Order needs to be amended by removing the arbitrary, biased and discriminative 86% first-time bar taker passage rate requirement. If you graduate from an ABA accredited law school and had already applied for the 2020 July Utah State Bar Examination you should be included as a “qualified recent graduate.” Further, those already licensed attorneys from a different state who had already applied for the July 2020 Utah State Bar Examination should be included with those who are automatically licensed (even without the need to do the 360 hours of supervised service). If the Supreme Court wants to make the recent graduates whose schools don’t currently meet the 86% bar passage rate do more hours of supervised service to be licensed that would be a fine adjustment as well.
Another option is that The Supreme Court could altogether do away with this Order and do what most other states are doing and administer the bar exam when it is “safe” to do so. (Side note: they could safely administer the July 2020 exam if they were somewhat innovative in their thinking, but for some reason they don’t want to entertain ideas of how they could do that).
*Data taken from USNEWS
Before this proposed order, I was getting ready to lose the job I had lined up well before the pandemic due to the economic downturn my employer is experiencing.
Under the proposed order, I will be able to help my employer recover from his recent economic losses by working for a reduced wage to fulfill my supervised work requirement, all while avoiding unemployment myself.
Like many of the other commenters, the Criminal Appeals Division of the Utah Attorney General’s Office (Division) commends the spirit behind the proposed rule. It provides a way to mitigate challenges facing recent graduates who registered to take the July 2020 bar that has now been cancelled due to the COVID-19 crisis.
But also like many other commentators, the Division believes that the emergency rule is underinclusive. The proposed rule, together with the emergency decision to cancel the July 2020 bar exam, neglects whole classes of persons able to help increase the number of lawyers available to provide legal services to Utahns. In particular, the rule’s focus on a path to admission for recent graduates does not account for the admission in Utah of experienced, qualified attorneys who are already licensed in another state, but who have not yet reached 5 years of law practice sufficient to qualify them for reciprocal admission to the Utah Bar under the Bar’s existing rules.
The logic and fairness underlying the provisional admission, under supervision, of recent graduates makes sense as far as it goes. But it makes no sense to provisionally admit only recent graduates who have never practiced law, while at the same time prohibiting similar accommodation to experienced attorneys who have practiced for many years as a member of another jurisdiction’s bar.
To illustrate the problem, the Division recently extended an offer of employment to an attorney licensed in New York. That attorney accepted the offer and planned to begin employment with the Division in the Fall of 2020. Because the attorney has been licensed in New York for four years, he is one year short of eligibility for admission to the Utah Bar by reciprocity. And under the existing rules, he cannot count the time working in Utah toward the 60 months he needs to qualify for reciprocal admission. So he timely registered to take the July 2020 bar exam and assume full attorney privileges upon swearing in in October 2020.
But because the July 2020 bar exam is unexpectedly cancelled, the first bar exam available to him is in February 2021, which will delay his admission until May 2021. And under the proposed rule, that will be his only route to admission even though he is nearly eligible for reciprocal admission and has practiced law as a licensed attorney in New York for many years.
It would seem that the same logic and fairness that justifies extending an alternate route to admission to new graduates who registered for the cancelled July 2020 bar exam should justify extending a similar alternate route to experienced, licensed attorneys who also registered for the same unexpectedly cancelled bar exam. The unfairness to them is no less. And the benefits for Utahns are clear: it is not hard to imagine that a prospective client choosing between hiring as a lawyer either (1) a new graduate with 360 hours of supervised practice, or (2) a lawyer who had passed another jurisdiction’s bar and successfully practiced law there for many years, might well prefer the latter option.
The Division proposes an addition to the proposed rule that would allow admission on application and on a case-by-case basis for experienced attorneys—persons who have passed another jurisdiction’s bar and successfully practiced in that jurisdiction—who timely registered for the July 2020 Utah bar exam. The Division believes that this will be a small class of potential admittees. A more generalized catch-all exception will avoid denying admission to someone who doesn’t meet a technical criterion, but who in fairness should be afforded leniency under these unprecedented circumstances.
I am supportive of some type of accommodation to the traditional licensing requirement due to this
While I agree with most of the proposal, I am concerned with the 86% first-time bar passage rate that is
included in the proposal. I feel that this unfairly favors graduates from Utah law schools. Other, high
ranking law schools, have a lower first-time bar passage rate. These graduates would not be permitted
to take advantage of this proposal.
For example, a law student that graduates last in their class from BYU or U of U law school would be
admitted to the bar. Yet, a student that graduates first in their class from a comparable, or even higher ranked law school
would not be eligible to earn admission until the pandemic allows a traditional bar exam to take place.
I am a 3L at the University of Utah S.J. Quinney College of Law set to graduate in May 2020 and I fully support the Utah Supreme Court’s decision to change the requirements to practice law in Utah by offering a diploma privilege to recent graduates. I first want to thank the Utah Supreme Court and all the others who worked in conjunction to create such a plan. I know that countless hours, meetings, and discussions have gone into determining the best path for all of us to take as we sift through what is becoming a new normal. For that, I commend you!
I support this decision because of the uncertainty that we are currently in. We do not know when social distancing will be relaxed or when the economy will be returned to what is considered normal. If this order were not adopted and recent graduates were still expected to take a bar to be admitted to practice, we would be in limbo for an undetermined amount of time. I know from my personal life, this would create difficulties. Being forced to wait an unknown amount of time for a potential future bar exam would be financially difficult as savings and student loans can only be allotted for so long. Additionally, in a time where social distancing is the new norm and unemployment applications are skyrocketing, it would be incredibly difficult to find any job during the limbo period, let alone a job where I would be able to support myself and pay back student loans when the time comes. Allowing recent graduates to currently practice only to take a future bar would not alleviate this financial stress. Studying for the bar requires an immense amount of time, too much time for the recent graduate to take off of work in the future without receiving repercussions from their employer. Allowing the recent graduate, including myself, to work upon graduation and not have to stress about taking time off in the future to study for the bar will help alleviate these financial burdens.
I also support this decision because, I can say from personal experience, that real world practice and experience is a better tool to measure competence than a test that has no relationship to what the actual practice of law is. I firmly believe that supervised practice will ensure competence over an individual test that focuses more on memorization and timed responses than well thought out, crafted solutions to real world situations.
Given that, I do think the supervision requirement should be modified. If the supervision requirement is meant to ensure the recent graduate is competent to practice law (analyze statutes, regulations, and court decisions and apply those legal conclusions to a current, real world situation), then what qualifies to meet the hour requirements should be expanded. I, along with many of my classmates and other recent graduates, will be pursuing and accepting JD advantage jobs in Utah, potentially ones that are policy analysts. These positions, while aren’t required to have a JD and bar license, perform many of the same tasks that a lawyer with such qualifications would perform at a firm or in another traditional lawyer role. In a JD advantage position, I would analyze statutes and regulations and discuss the conclusions I have drawn with members of the organization I work with. We would not specifically be giving legal advice but would be completing very similar tasks to those that do. Additionally, the supervisors for these JD advantage positions are often attorneys with practicing experience, though may not be licensed in Utah. However, I find it reasonable to conclude that these individuals are just as competent and capable of supervising a recent graduate and instilling in them the best practices of law as any attorney licensed in Utah is. Simply being licensed in a different state does not take away their ability to instill good practices and provide competent supervision.
Ultimately though, I believe the court is on the right track in trying to produce the most equitable solution in a troubling time. I thank you for your consideration of my comments and suggestions.
Way to go, Utah! As a graduating 3L, it has been difficult to transition to remote learning, not have a graduation, be unsure about grades, and plan for the future in the midst of this pandemic. This shows a level of trust in our ABA-accredited law schools and students. We are in the midst of a pandemic, so things cannot be business as usual. I hope other jurisdictions follow suit for this administration.
The Honorable Chief Justice Matthew B. Durrant
The Honorable Associate Chief Justice Thomas R. Lee
The Honorable Justice Constandinos Himonas
The Honorable Justice John A. Pearce
The Honorable Justice Paige Peterson
Re: Proposed Order on Emergency Modifications to Utah Bar Admission Criteria
Dear Chief Justice Durrant, Associate Chief Justice Lee, and Justices Himonas, Pearce, and Peterson:
Thank you for your leadership of the legal profession in Utah in unprecedented and challenging times.
I am writing to comment on the Proposed Order on Emergency Modifications to Utah Bar Admission Criteria. In particular, I am writing on behalf of Utah residents who left the state to go to law school and now seek to return to Utah to practice law. The graduates of UNLV Boyd School of Law will not be eligible for the diploma privilege option under the current conditions of the proposed rule. I can personally testify that I know these graduating students well and that the state of Utah would benefit from the expeditious licensing of the outstanding members of the Boyd School of Law who have applied to take the Utah bar exam in July.
I applaud your intention to offer a diploma privilege in light of the uncertainties surrounding the July 2020 bar exam. The requirement of supervised practice in addition to a law school diploma protects the public by establishing the competence of new attorneys in Utah.
The UNLV Boyd benefits from a small but steady stream of students from Utah, and Utah benefits from having our graduates return home to practice. Boyd graduates have a first-time pass rate of over 90% in Utah over the past ten years.
The graduates of UNLV Boyd, despite the school’s strong record in Utah, are not be eligible to practice under the proposed rule. Our school’s first-time pass rate in Nevada is not at 86%, but instead is roughly 80%. I know that of course the Court needs to draw the line somewhere, but respectfully suggest that the proposed rule fails to take into account the fact that bar exams are not of uniform difficulty across the country. In particular, Nevada uses a “cut score” of 138, resulting in a more difficult bar exam than Utah’s, which uses a 135 cut score. This more difficult bar exam has naturally resulted in a slightly lower pass rate in Nevada than in Utah, and the proposed rule will disadvantage students seeking to return home.
We respectfully suggest that 75% provides an objective cut-off that reflects the differences between Utah’s and other jurisdictions’ bar exams. As you know, ABA accreditation standards currently require a 75% ultimate pass rate (after two years). Adjusting that number to first-time pass rates provides a high standard of quality well beyond mere accreditation. Using the 75% figure from national accreditation standards is easy to justify while providing more openness to graduates of out-of-state law schools situated in states with more difficult bar exams.
Alternatively, we suggest the addition of a petition or waiver process for extraordinary members of the Class of 2020 who can show exceptionally strong academic and professional records.
Thank you for your consideration of these concerns and proposals. Please contact me if you have any questions or if I can be of assistance in any way.
Daniel W. Hamilton
Dean and Richard J. Morgan Professor of Law
UNLV William S. Boyd School of Law
I am in full favor of the proposed order for 2020 law grads forgoing the bar, and instead require them to work 360 hours supervised. As a logical, emotional human being (and NOT an attorney) – I understand the frustrations of the good attorney’s who have commented in this chain strongly opposing the proposal. It’s pride, and we all have it. But that