Exciting news out of Oregon, where the state supreme court approved in principle a pair of alternative licensing proposals that would allow applicants to forego the bar exam altogether. One would allow applicants to complete an apprenticeship program, working for 1000-1500 hours under the supervision of an experienced attorney. The other is a modified form of diploma privilege allowing in-state students to turn their final two years of law school over to a curriculum focused on Oregon practice.
The vote only directs the bar examiners to continue working out implementation details, but clearing this hurdle puts on the momentum of the side of reform.
For years, state bar gatekeepers in cahoots with the $125M “non-profit”
lobbyists testing professionals at the NCBE maintained that only the bar exam could protect the country from a tidal wave of unqualified, scam attorneys. That this decision conveniently deposits over $17 million each year into the tax free coffers of the only participant in the bar exam market is purely happenstance.
Experts long warned that the bar exam as currently constituted does little to assess an applicant’s competency to be a lawyer. Its generalist approach is antiquated in the contemporary legal market and its obsession with closed book testing flies in the face of the core value of a common law legal system. If the practice of law is a constant, open book exam, why is the test a memory dump of subjects you’re never going practice?
The pandemic proved a turning point. Licensing reform predated COVID-19, but the urgency of a national lockdown a few months before the July administration forced even passive observers to consider alternative licensing options. Some alternatives are better than others, but the important thing is people were finally open to considering other ideas.
Well, except the NCBE, which let students know that state bar examiners might just block their licenses if they questioned them.
But now we’ve got two tangible proposals on the table.
Apprenticeship is a time-honored path to the bar. Despite the NCBE’s public relations efforts, “bar exams” weren’t a monolithic licensing standard for most of the country’s history. Unlike Kim Kardashian’s ongoing legal journey or the path taken by legal luminaries like Justice Cardozo, the Oregon proposal isn’t using apprenticeship as a replacement for a law degree, but as a replacement for the exam. Kim and Cardozo both apprenticed for their right to take an exam without degrees, while Oregon is letting law school graduates prove their worth through working.
I’ve expressed concerns about mandating apprenticeships as part of a bar exam alternative. While undoubtedly effective, jobs in the industry for unlicensed applicants can be scarce, leaving some in the cold — with a high risk of falling along existing race and gender discrimination lines. The quality of supervision will need some kind of oversight, and there are serious risks of labor exploitation where apprentices work at the mercy of their supervisors.
That said, as one of many components, apprenticeship is worth a try. With proper mentor vetting, this route could provide an unintended boon to applicants starting their careers off with a built in support network.
The other route closely tracks my preferred solution to licensing long-term. Students pay
hundreds, thousands hundreds of thousands of dollars to get a law degree that states refuse to trust as providing basic competence. At the point examiners demand a law degree, licensing should be leaning on law schools to provide results for all that money. If this means rethinking curricula and cracking down on diploma mills, then so be it. To my mind, a law degree and a (better) bar exam should function as “either/or.”
Oregon’s proposal is the perfect trial balloon. Law schools don’t have to radically reorient the whole program, but those students looking to practice in the state can take a practice-oriented curriculum. With success, maybe this curriculum can expand and bring in law schools in logical reciprocity jurisdictions like Washington and Idaho.
In any event, there’s a long way to go before implementation and the committee working on this will doubtless face unexpected obstacles before it’s all over, but right now Oregon’s seizing the opportunity presented by COVID to develop a licensing system that actually reflects 21st century lawyering.
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.