[UPDATE: The Cal Bar says these comments were left in on purpose. See below.]
Next week, the Blue Ribbon Commission on the Future of the Bar Exam will hold a conference call to discuss its report. The commission helpfully included a PDF copy of the report with its agenda. This PDF copy includes all the tracked changes and comments.
If that was the intention… it probably shouldn’t have been.
The Blue Ribbon Commission is supposed to figure out what, if any, changes the state should make to the bar exam. It’s also charged with considering any alternative or additional testing the state might adopt in legal licensing. Could we sit upon the precipice of diploma privilege? The draft report details multiple options that the commission considered and lays out compelling cases for several of them. It leaves the reader with a record that could support at least further investigation into these options and conveys a commission that took its charge to think outside of the box seriously.
… wait, what’s this?
“Please don’t include anything in the report that might make it look like we just rubberstamped the bar exam.” In defense of the commenters, the issue raised about Ontario is important and we’ll discuss it in a second. But first… more comments!
“Evenly divided” and “public comment was also split” or “should be removed, or at most, reserved to a footnote.” There are folks on this commission who really, really want to memory hole the entire discussion of bar exam alternatives.
There are plenty of problems with proposed licensing alternatives. Back in April 2020, when the diploma privilege plus conversation got rolling in earnest, Above the Law laid out key problems with any solution requiring an apprenticeship model:
This isn’t a problem for law school grads with jobs lined up in the industry. An associate’s first year is where most of an attorney’s practical education happens anyway. But for those not planning to work explicitly in the legal services industry or those planning to go solo out of the gate, where are they finding these positions? The law is already a harsh workplace of long hours and occasionally dictatorial personalities. Add in that there is already an unfortunate loophole in the labor laws that allows practitioners to employ lawyers without paying them a minimum wage and the risks to aspiring attorneys of handing considerable licensing power to their supervisors is obvious before we even broach the risk of sexual or racial harassment. Without a solution that protects law school graduates from exploitation, the diploma privilege plus regime will always have this lingering weakness.
This seems to have matched up with the commission’s findings regarding the Ontario model:
But this doesn’t justify downplaying the whole inquiry into alternatives (up to and including the idea of relegating it to a footnote). Going into further detail about these issues helps future reformers craft better solutions. An external apprenticeship raises the prospect of abuse and exploitation. Could diploma privilege plus be limited to law schools that provide a defined period of practical, experiential work? Probably. Someone reading about the specific issues in Ontario might mention that.
And that’s why some of these commissioners get hot and bothered by the mention of alternatives at all. The less said about the second half of the group’s mandate the better! It could give people ideas.
Because the problem with a commission designed to “represent a wide range of stakeholders” is that some of those holders have a stake in keeping everything the way it is.
[UPDATE: Chief of Programs Donna Hershkowitz provided this statement:
“The purpose of the Monday Commission meeting is to ensure that the report accurately reflects the proceedings and actions of the Commission. As will be explained at the meeting, the Commissioners were given the opportunity, individually, to indicate where they thought the report did not reflect the Commission’s discussions or actions. That is what is reflected in strikethrough, underline, or comment bubbles. The meeting on February 27 will focus on the comments in the comment bubbles to reach consensus on how to best reflect what the Commission heard and acted on. Comments that reflect what commissioners hoped the outcome would be, but not what the outcomes were, may be more appropriate for a dissenting opinion.”
It’s certainly true that the strikethrough, underline, and comment are there to facilitate the upcoming meeting. But it certainly throws some of the commenters to the wolves to have a public record of their informal and seemingly off-the-cuff comments — some of which appear to advocate wholesale deletions of the commission even considering alternatives.
Maybe everyone knew these comments would be publicized and wrote them this way anyway, but… I certainly wouldn’t expect lawyers to do that.]
Earlier: Why Attorney Supervision Could Undermine The ‘Diploma Privilege Plus’ Movement
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
