Philly Bar Pushes Provisional Atty Licensing During Pandemic

By Matt Fair
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Law360 (April 13, 2020, 9:03 PM EDT) -- The Philadelphia Bar Association threw its support on Monday behind a statewide proposal from a group of area law school deans to allow this year's crop of graduates to begin provisionally practicing law even if the ongoing COVID-19 pandemic forces the postponement of the summer's scheduled bar exam.

Chancellor A. Michael Snyder said that the plan, under which 2020 graduates could practice law in Pennsylvania under the supervision of a licensed attorney before taking the bar exam once the outbreak crisis winds down, would allow students to begin their legal careers while also protecting the integrity of the profession.

"These students, who anticipated entering the profession at a time of strong growth, face possible withdrawal of hiring offers, or deferral of such offers, or delays in beginning work, all of which will cause them significant financial hardship," Snyder said. "The deans … have proposed a solution that is cognizant of the temporary challenges presented by the pandemic, but that recognizes the need for consistency in the profession."

The Philadelphia Bar Association's endorsement comes after deans at 10 Pennsylvania and Pennsylvania-area law schools sent a letter urging the state's Board of Law Examiners to look not only at provisional licensing, but also at ways to potentially use technology to help administer the bar exam.

Gregory Mandel, who serves as dean of Temple University's Beasley School of Law in Philadelphia, pointed to the Law School Admission Council's announcement last week that it would begin administering the LSAT to prospective law students remotely in a proctored online format.

"There are lots of alternatives, none of which are perfect and all of which have challenges, that due to COVID-19 we should be thinking about instead of the usual method of bringing together hundreds and hundreds of people in a large room," Mandel told Law360.

He said that online systems could be set up to allow proctors to see and hear test-takers to help protect the integrity of the examination process.

"We have to weigh those concerns against the need for new graduates to get licensed and begin their own careers in order to serve the profession, in order to provide access to justice and to serve the needs of clients throughout the commonwealth," he said.

While Mandel said that no other states have yet set up systems for remote administration of bar exams, there have been moves in other jurisdictions — including neighboring New Jersey — to begin provisionally licensing attorneys even as licensing tests are postponed.

Under an April 6 order out of the New Jersey Supreme Court last week, graduates would have to earn a certification from the court's Committee on Character and agree to apply to take the next available exam.

Meanwhile, the Utah Supreme Court said on April 9 that it was considering an order that would allow certain law school graduates to practice without having to pass the bar. Under Utah's proposal, certain 2019-2020 law school graduates in the state would be able to practice law without ever having to pass the bar exam. In order to qualify, students must have graduated from a school where the first-time bar exam passage rate exceeds 86%.

A similar so-called "diploma privilege" system has long been on the books in Wisconsin.

But the Philadelphia Bar Association said in its statement on Monday that it did not condone a similar approach being adopted in Pennsylvania in response to the COVID-19 crisis.

"It is neither reasonable nor fair to allow a group of students to be exempted from a requirement that has existed within the Commonwealth since 1902," Snyder said. "It is true that these are unique times with unique challenges, but the solution to the problems faced by law students who graduate during the pandemic COVID-19 is not to exempt them permanently from any requirement to take a bar examination."

While a decision has yet to be made in Pennsylvania regarding whether or not to move ahead with its scheduled bar exam in July, officials in New York and Massachusetts announced at the end of March that they were moving their tests to as-yet-unspecified dates in the fall.

Whether or not the test can move ahead could come down to an expected decision from the National Conference of Bar Examiners on whether to provide testing materials in advance of the scheduled July date. The NCBE has said it expects to make a call on whether to deploy testing material by the beginning of next month.

David Fine, an attorney with K&L Gates LLP who serves as chair of the Pennsylvania Board of Law Examiners, told Law360 on Monday that he and his colleagues were still mulling how to handle July's bar examination and any potential changes to licensing requirements in the state.

"The board has heard over the last several weeks from a great many stakeholders, including the deans, law students, bar association leaders, lawyers and our counterparts in other jurisdictions, and we have been collecting up a great deal of information," he said. "This is obviously an unprecedented situation, and we have been working very hard to try and make some determinations, but we are not at a point yet at which we can publicly disclose what path Pennsylvania will take."

Any determinations made by the board on the bar exam or licensing would also have to earn the blessing of the Pennsylvania Supreme Court, Fine said.

--Additional reporting by Frank G. Runyeon and Jeannie O'Sullivan. Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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