The COVID-19 pandemic has interrupted every facet of life, including legal education. Normally upon graduating from law school, law graduates must pass a bar exam before they may practice law. However, the pandemic forced states to reexamine how to license new lawyers, many of which have turned to the diploma privilege method.
What Is Diploma Privilege?
Diploma privilege allows law graduates to skip taking the bar exam while gaining admittance to the bar, which allows them to start practicing law. Before the 1870s, many people trained to be lawyers through an apprenticeship with a lawyer or a judge. With the emergence of law schools in the 1870s, many schools offered diploma privilege to lure law apprentices to their schools. With diploma privilege, those individuals received automatic admission to the bar.
Which States Offer Diploma Privilege?
California abolished diploma privilege in 1917, and the American Bar Association expressed opposition to the practice in 1921. Mississippi abolished this practice as recently as 1981. Wisconsin remained the only state that allowed law graduates admission to the bar through diploma privilege as of 2019.
Utah became the first state in April 2020 to grant emergency diploma privilege due to the COVID-19 pandemic as long as the law graduate met the eligibility requirements—the individual must have graduated from an ABA-accredited law school with a bar passage rate of 86% or higher by June 30, 2020, applied to sit for the Utah Bar Exam by April 1, 2020, and not previously sat for a bar exam.
Washington state became the next state to grant diploma privilege in June 2020. Their eligibility requirements stated that the law graduate must be registered for the July 2020 bar exam, but unlike Utah, they simply need to have graduated from an ABA-accredited law school—regardless of the school’s bar passage rate. However, some employers at law firms refused to recognize diploma privilege and wanted their prospective applicants to take the bar exam anyway.
Oregon was the third state to reinstate diploma privilege, just 17 days after Washington state. Their eligibility requirements closely followed Utah’s requirements.
The Louisiana Supreme court offered diploma privilege to graduates on July 22, 2020, with more requirements than the previous three states. Those seeking diploma privilege had to meet the following criteria:
● Registered for the July or October 2020 bar exams
● They had graduated from an ABA-accredited law school in the Spring of or December prior to 2020
● Not previously had not taken the bar exam for any other state
● Complete 25 hours of a continued legal education by the end of 2021
The District of Columbia started offering diploma privilege on September 24, 2020, with similarly strict eligibility requirements as Louisiana. Their requirements were as follows:
● Law graduates were to be registered for the 2020 or 2021 D.C. bar exams
● They had graduated from an ABA-accredited law school in 2019 or 2020
● They could not have been denied bar application or sat for any bar exam
● They must have passed the Multistate Professional Responsibility Exam
● They must have supervision from a qualified attorney while they practice for the next three years
How Has COVID-19 Affected Temporary Emergency Diploma Privilege?
Due to the pandemic, many people realized that the practice of large groups of people taking the bar exam in a confined area when COVID cases continued to surge was not a wise idea. Some states had either postponed the exam or switched to a shorter online version of the test for law graduates to take. However, there were still 20 states, including North Carolina that still planned to do in-person exams.
Emergency diploma privilege is similar to diploma privilege, but there are some key differences. While the emergency diploma privilege allows law school graduates to practice law without taking the bar exam, the American Bar Association and some states still require passing the bar necessary for licensure.
Washington state enacted diploma privilege in June 2020. However, as mentioned earlier, there were law firms that refused to recognize it and wanted their associates to sit for the test anyway. In Washington D.C. the law graduates who chose diploma privilege must have three years of supervision by a qualified attorney admitted to the D.C. bar.
Under the District of Columbia’s provisional licensing program, law graduates are allowed to practice while they wait for their exam results. Those choosing to go the diploma privilege route must also have the dean of their law school certify that they are of good character and competent legal ability. Those who take the emergency examination waiver must undergo a character and fitness review, which takes several months. There are a few judges in D.C. opposed to diploma privilege as they don’t believe that a sufficient case has not yet been made for a bar exam waiver.
Diploma Privilege Moving Forward
Those in favor of diploma privilege argue that the COVID-19 pandemic has created an unconstitutional burden on those who wish to take the bar exam and is a threat to public health as a large in-person gathering. They also argue that the pandemic caused delays and uncertainty, wondering when the pandemic will be over, how they’re going to go through with the testing. Other delays include deciding whether or not to switch to online testing.
As for the state of New York, Senator Brad Hoylman introduced legislation on July 6, 2020, to introduce diploma privilege. As of mid-December, the current bill status is that it’s in the rules committee of the New York state senate. The summary for the bill states that anyone eligible to take the New York state bar examination during the COVID-19 pandemic, complied with section 520.9 court of appeals and has satisfied the fitness and good moral character requisite are admitted into the state bar and can practice law in the state.
As for the Pennsylvania Supreme Court, they have rejected calls asking to adopt emergency diploma privilege. But in early September, a senator introduced one of three bills that would allow law graduates to become licensed without taking the bar examination as long as they intend to practice in Pennsylvania and pass the fitness and character review. As of Mid-December of 2020, there aren’t any members assigned to the committee.
A group called United for Diploma Privilege submitted a petition in early September 2020 for an emergency order seeking diploma privilege in the state of California. The summary of the argument stated that the California bar exam would rely on untested technology that violates privacy and has a history of failing exam takers.
Of the 50 states and District of Columbia, only five states have diploma privilege, with 11 states having no state-level point of contact to move diploma privilege forward into the state senates, including Alaska, Hawaii, Iowa, and Delaware. The other 34 states have active advocacy with petitions, virtual fireside chats, and social media to raise awareness about diploma privilege.
The COVID-19 pandemic forced rapid changes in every aspect of life, exposing just how reliant we are on traditional methods and how slow we are to update methods with the current pace of technology, with states preferring to examine in person rather than already having the technology in place to take the exam online. The NCBE’s announcement of an online Uniform Bar Exam for February 2021 may lead to further changes regarding diploma privilege, so expect changes to come!