State Bar Committee Votes to Expand Access to Licensing Program Amid Pandemic

Several recent law school graduates protest the California Supreme Court’s refusal to make the state bar exam’s new lower passing score retroactive. (Courthouse News photo / Maria Dinzeo)

SAN FRANCISCO (CN) — A State Bar committee voted Wednesday to extend a temporary licensing program to anyone who took the California bar exam in the last five years and earned a score that meets the new minimum standard.

The program essentially functions as an apprenticeship. Participants must be employed by or have an offer from a law firm based in California, and must practice under the watch of a licensed supervising lawyer in good standing with the bar. 

While candidates need not have taken or passed the bar exam to participate in the program, they must refer to themselves as provisionally-licensed. The program will end in June 2022, and for now, participants will still need to pass the bar exam to become fully licensed.

The State Bar’s provisional licensure working group created the program at the direction of the California Supreme Court, which lowered the passing score for the bar exam from 1440 to 1390 in July, but only for those taking the test in October 2020 and beyond.

Its decision prompted a flood of letters and petitions for retroactivity to past bar exams, culminating in a state Assembly resolution asking the court to apply the lower passing score as far back as July 2015. The court declined to do so, and has no plans to revisit the matter. 

The Bar’s board of trustees approved the program for 2020 law school graduates in September. The California Supreme Court will still need to give its blessing and is expected to take it up next week.

On a video call Wednesday, working group member Dolores Heisinger said she felt compelled to express her frustration at the circumstances.

“The levels of unfairness are astounding. The moment the Supreme Court lowered the bar, that threw a whole new bunch of questions up in the air,” Heisinger said. “For instance, a February 2020 graduate who scored 1390 must go through the provisional licensure program in order to receive licensure. Nine months later, someone taking the October 2020 exam and getting a 1390 score will move directly to licensure. That’s one of the many many questions of unfairness that this automatically raises.” 

Her view was shared by Robert Barrett, another member of the working group who also said he had heard no principled argument for why anyone who scored 1390 in the past shouldn’t be eligible for provisional licensing, regardless of when they sat for the exam.

Group chair Hailyn Chen said some have raised a concern about waning legal knowledge with the passage of time.

“It’s been awhile since those folks were in law school or studied for the bar exam, so basic legal principles might be far out of their mind,” Chen said. “So that’s one argument, I suppose.”

Representing the high court’s view, Supreme Court senior attorney Greg Fortescue, urged the group to consider the State Bar’s primary mission of protecting the public. 

“We want to make sure these people are competent to practice law,” he said.  “I would be hesitant to unleash those people into the legal practice without having some sense of whether they have maintained competency.” 

No one seemed opposed to making eligibility retroactive to at least three years, 

based on a Supreme Court reference to a “standard setting study” from 2017 that it used to inform its decision to lower the passing score for the exam.

The group then went further, voting to open the program up to anyone who took the exam in July 2015 or later, a time period based on State Bar Rule 4.17 allowing admission to the bar up to five years after taking the exam.

Neil Gupta, the principal attorney to Chief Justice Tani Cantil-Sakauye, said the vote will render roughly 2,000 eligible to participate.

On hearing this, Barrett said, “I’m less concerned now about making room for these folks. The numbers are not enormous.”

The group stopped short of recommending provisional licensure as an alternative pathway to becoming an attorney, vowing to revisit the issue at a meeting later this month. The group will have to move quickly to have something for the Board of Trustees to vote on when they meet Nov. 19.

Carol Langford, a group member and adjunct professor at the University of San Francisco School of Law, said it will take a while to figure out how such a pathway to licensure will work without the bar exam. 

“The Supreme Court has spoken. We know that they are worried. We have to pay attention to that. The Supreme Court has the ultimate authority to discipline lawyers to deal with licensing, to everything. They’re saying they are concerned about lawyers who haven’t practiced in awhile.”

“It’s going to take a little time, we may have to have another meeting to figure out what that program’s going to look like,” she added. “I’m sorry to tell you another meeting, I know you folks wanna tie it up.”

Some proposed rigorous supervision requirements for participating law firms to ensure that the program doesn’t amount to just “gentle hazing with pay.”

But Chen cautioned against making it too burdensome for law firms to take part in. 

“It’s great to provide guidance as to best practices for supervision. My concern is that level of supervision is something that a robust agency or firm could provide but if we require it, it could be too onerous for small organizations, solo practitioners and small firms,” she said.

The no-nonsense Langford agreed, saying the program could fail if it saddles employers with too much work. Firms might only accept a select group of friends and relatives, or bypass participation altogether in favor of candidates who have passed the bar.

“It’s going to be a lot of those smaller firm attorneys who do this because they’re going to want the help and they’re going to want to be a part of it,” Langford said. “But if you put too much of a burden on small firms and solo practitioners who are already overwhelmed and get disciplined the most, they won’t hire them.”

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