Impact of COVID-19 on New Attorney Licensing Part 2: Diploma Privilege

This article is going to be a follow up on my previous article addressing the Limited Licensing scheme that has been implemented in PA. Here I will briefly discuss diploma privilege; what it is, how it has been implemented in a few other states, and recent developments in Pennsylvania.

To explain what diploma privilege is and its importance, first you need to understand the process law school graduates would go through in a normal year, and what has actually happened this year. Typically, after graduating in early-May, they would begin a course of study ranging from 8-10 weeks long, designed for the singular purpose of preparing for the bar exam (something law school does not do). Then, on the same two days across the country, thousands of test-takers crowd into a small number of testing centers (rented convention centers, hotel ballrooms, or borrowed law school facilities) in each state. Pennsylvania has two of these centers. In late-April, the Pennsylvania Supreme Court decided that such a gathering would be unsafe during the COVID-19 pandemic and has since postponed the exam twice, and moved it online. Only those who pass the exam are admitted to the practice of law.

This past week on July 28-29, only 23 of the 50 states held their typical in-person exams. Three additional states attempted to hold online exams. One was the victim of a cyber attack that derailed the day’s testing schedule and two were postponed the week prior due to technical issues that could not be resolved in time (NV and IN). Of those two that were postponed, one has decided that the technical problem was unresolvable and will be administering the test through email. Twenty states have postponed their exam to September or October, and many of them have also moved to an online format.

So how does diploma privilege fit in? Diploma privilege is an alternative to the bar exam that admits law school graduates to the practice of law based on their graduation from an accredited law school. There may be additional requirements attached to the admission, like requiring that the student was already registered for the exam, specific CLE (Continuing Legal Education) courses, and/or completing a certain number of hours of supervised practice hours.

This summer, in response to COVID-19, Utah, Washington, Oregon, and Louisiana have adopted some form of diploma privilege. Additionally, Wisconsin has offered diploma privilege to its in-state graduates for roughly 150 years. Several more states are actively considering diploma privilege, and a few have outright rejected the concept. Among the four states that have newly adopted diploma privilege thus far, you can find such additional requirements as: requiring that graduates had previously registered for the exam (all 4); requiring that graduates from out-of-states schools come from a school with a sufficiently high prior bar-passage rate (UT and OR); requiring that graduates complete a certain number of supervised hours of practice (UT); and requiring that graduates have never before taken a bar exam (LA and UT). Aside from Wisconsin, these grants of diploma privilege are temporary and limited only to the July 2020 administration of the bar exam.

Earlier this week, the Board of Governors of the Pennsylvania Bar Association authored a letter to the Board of Law Examiners requesting that diploma privilege be offered to students who graduated from an accredited law school between April 1^st and June 30^th, 2020 and meet certain other limited requirements. However, it should be noted that neither of those organizations have the authority to implement diploma privilege. The power over attorney licensing rests entirely in the hands of the Pennsylvania Supreme Court, pursuant to Article V, Section 10 of the Pennsylvania Constitution.

There are numerous arguments to be raised challenging the efficacy of the bar exam generally, but those are beyond the scope of this article. Given that the in-person summer bar exam has been definitively abandoned and that the online exam now has a 0/3 track record of successful administrations, the July 2020 bar exam (regardless of which month it ends up occurring in), should be abandoned in favor of diploma privilege.

This article was written by a 2020 graduate of Vermont Law School who holds a Limited License to Practice Law in the state of Pennsylvania, and reviewed by Attorney Joshua Prince. The information above is presented for educational purposes only and should not be construed as legal advice.