By Khorri Atkinson

Law360 (September 24, 2020, 8:45 PM EDT) -- Washington, D.C.'s highest court ruled Thursday it will allow certain recent law school graduates to obtain a D.C. bar license and begin practicing law without taking or passing an exam due to widespread disruptions caused by the COVID-19 pandemic.

The D.C. Court of Appeals' 4-3 order makes the district the fifth jurisdiction — behind Utah, Washington, Oregon and Louisiana — to grant diploma privilege. The online-only bar exam in D.C. is still set for Oct. 5-6.

Under a provisional licensing program, the district has been allowing graduates to practice temporarily and under supervision even if they have not yet taken or passed a bar examination. But in Thursday's order, the majority said provisional licensing is not sufficient due to the substantial obstacles to some applicants the pandemic has presented.

"The court therefore has determined, on a one-time basis, to permit certain recent law school graduates to be admitted to the D.C. Bar without taking or passing a bar examination, under a number of conditions intended to safeguard the public's interest in the competence and good character of those who are permitted to practice law in the District of Columbia," the order said.

The provisional licensing program temporarily allows recent graduates to practice law in D.C. while awaiting their bar exam results, while diploma privilege allows recent grads to obtain a waiver to skip the bar exam, but they have to meet certain requirements to obtain a license and practice law. Those granted provisional licenses must eventually take and pass the bar exam to stay licensed, while graduates seeking diploma privilege would not need to take the exam.

The waiver program applies to 2019 and 2020 graduates from American Bar Association-accredited law schools who already signed up to take the D.C. exam next month or next year, the order said.

Some of the conditions laid out in the order include that applicants can't already be admitted to a bar in a different jurisdiction or have failed a bar exam. Applicants must also be certified by the dean of the law school they graduated from as being of good character and competent legal ability, and they have to practice in the district for three years after admission under the direct supervision of an enrolled, active member of the D.C. Bar.

The order also lists certain conditions supervisors must meet, including that they have practiced law in the district for at least five years.

Applications for an emergency D.C. bar exam waiver may be submitted from Jan. 11, 2021, through April 30.

Some members of the public who submitted comments in response to the appellate court's July order for feedback to establish a procedure allowing diploma privilege had assumed that permitting bar admission based on an examination waiver "will lead to near-instantaneous admission of those who qualify," the majority noted on Thursday. "That is not feasible."

The order emphasized, among other things, that the court has limited staff to address time-sensitive obligations, including administering the October exam, "which at present has an unprecedented number of applicants," as well as "getting that examination graded; conducting character and fitness reviews; and certifying successful applicants for admission."

"Court staff will give priority to handling the applications of those who take the October Bar examination. Although court staff will work diligently to process applications based on an emergency examination waiver, that process includes character and fitness review and can be expected to take a number of months," the order contended. "The court has chosen to permit expanded temporary practice under supervision in part for this reason."

Meanwhile, the judges in the minority, including Chief Judge Anna Blackburne-Rigsby, wrote in a statement accompanying the order that they're not convinced the case for bar exam waiver had been made. 

"We understand that the COVID-19 pandemic has created unprecedented circumstances, but we believe that the other steps the court has taken (offering a remote examination, negotiating reciprocity agreements with twelve other jurisdictions to accept the scores from the remote exam, and expanding the opportunity for temporary supervised practice) are sufficient accommodations," the statement said.

If there's a waiver, it should only be extended to applicants who demonstrated they have experienced significant hardship relating to the pandemic and for whom taking the October 2020 remote bar examination is infeasible, the statement added. 

"Such a nexus is important to balance compassion for applicants most adversely affected by the COVID-19 pandemic, with the court's responsibility to protect the public," the judges added. "To that end, in addition to meeting the requirements set out in the new rule, emergency-examination-waiver admittees should be required to attest that they have completed the required period of practice under supervision."

Diploma Privilege for D.C., a chapter of the nationwide United for Diploma Privilege movement that advocates for automatic admission to the bar for qualifying law graduates in the wake of COVID-19, said in a statement the group "did not fully succeed" with its mission to get diploma privilege for all 2020 applicants to the D.C. bar.

The group, which had asked the court in July to amend its requirements for D.C. bar admission, said Thursday's order "provides for a small, narrow, restricted version of diploma privilege that excludes the vast majority of those we were advocating for."

The COVID-19 pandemic has forced states to alter their bar exam policies amid caution from public health authorities over large in-person gatherings. While some states are considering whether to offer diploma privilege to aspiring attorneys or grant temporary licenses to practice law, others have moved to hold bar exams remotely.

Proponents of diploma privilege have lodged a string of petitions nationwide, arguing that the pandemic has caused delays and uncertainty surrounding the test that they say amount to an unconstitutional burden on examinees.

--Editing by Alanna Weissman.

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