Legal Community Responds to D.C. Court’s Diploma Privilege Order
October 02, 2020
As hundreds of law school graduates prepare to take the remote District of Columbia bar exam on October 5 and 6, uncertainty and confusion continue to linger among prospective lawyers about their pathways to law practice in the nation’s capital.
On September 24, citing the continuing COVID-19 emergency, the D.C. Court of Appeals issued an order announcing that it will permit temporary supervised practice by certain recent law school graduates who have not yet taken or passed the D.C. bar exam. The court is also allowing, under certain conditions, a one-time waiver admission to the D.C. Bar without passing the exam.
“No approach could satisfy all of the various interests that have been identified. These emergency rules reflect the court’s best effort to address the COVID-19 pandemic by balancing the competing interests at stake,” the court said.
At first, Octavia Carson, who graduated in May from Thomas Jefferson School of Law in San Diego, was excited about the news. But after thoroughly reading the order, Carson, as well as so many others awaiting the court’s decision, were left baffled and disappointed. “We believe that the language is pretty convoluted and vague; it excludes so many people,” says Carson, who currently works as a law clerk at the U.S. Department of Justice. “It’s pretty shocking to a lot of employers who have already said that they will not accept it.”
Law school graduates who earned their JD in 2019 or 2020 from an ABA-accredited law school are eligible for emergency temporary practice in the District. They must have applied to take the D.C. bar exam in 2020 or 2021; not have been admitted in another jurisdiction, sat for another bar exam, or been denied admission elsewhere; and passed the Multistate Professional Responsibility Exam, among other conditions. A person practicing under this rule must be supervised by a D.C. Bar member in good standing who has practiced law in the District for at least five years. Those who seek admission to the Bar by exam waiver must be supervised for three years.
Bar applicants who wished to withdraw from the online exam, which is administered by the D.C. Court of Appeals, to pursue either the emergency temporary practice or emergency examination waiver option were given until September 26 to do so.
Joni Wiredu, a professor at American University Washington College of Law, agrees that the order was confusing. “It took us almost a day to really decipher the provisions of the order,” she says. “We just had to be very thorough in our assessment of what the order was saying before providing our students with our own FAQs about what to do.”
Wiredu was also alarmed by the timing of the order. “The timing shook our students,” she says. “To give them basically a 48-hour window on a decision whether to move toward that option was unfair. And it was quite disruptive. We are in the final two weeks of [preparing] for the bar exam. It was already very difficult in helping students maintain focus and motivation because of all the distractions. Throughout the summer, it’s been stop and go. And then to get this, at what I felt like was the 11th hour, created a lot more stress in an already stressful environment.”
“I feel like the [September 24] order was almost written to fail,” Wiredu adds. “I think it was designed to not really be that beneficial.”
Balancing Competing Interests
D.C. Bar applicants who have petitioned the court for diploma privilege argue that the three-year supervised practice stipulation not only puts tremendous burden on law firms — many of which sign two-year contracts with incoming associates — but it also makes it nearly impossible for the federal government to implement because it accepts lawyers barred in various jurisdictions. Also, the three-year period doesn’t begin to run until an associate is employed as a lawyer.
“Three years? That’s like being in law school again,” Wiredu says. “I’m not sure if [the order] is showing a lack of confidence. I think it makes it a lot more challenging, particularly for those students who may not have employment, to be able to seek and find employers that are willing to put in that kind of time and investment.”
Furthermore, three years is a longer period for supervised practice compared with post-pandemic orders regarding diploma privilege in other jurisdictions, including Utah, Washington state, Louisiana, and Oregon.
In a statement, D.C. Court of Appeals Chief Judge Anna Blackburne-Rigsby said, “the full court found that a significant period of practice under supervision, coupled with a clear indication of their license status, was the best way ‘to safeguard the public’s interest in the competence . . . of those who are permitted to practice law,’” quoting the court’s order.
The court determined that a three-year supervised practice for recent law graduates who have not passed a bar exam is a “significant accommodation that, together with notice of the basis for their bar admission, both recognizes the needs of recent law graduates in the circumstances of the pandemic and protects the public as consumers of legal services,” Blackburne-Rigsby said.
A day after the court issued the order, the group Diploma Privilege for D.C. petitioned for an emergency amendment, asking the court to reduce the three-year period of supervised practice to six months, and to move the deadline to withdraw from the remote bar exam to October 2, 2020. The court rejected the petition on September 28 without explanation.
“The court’s order . . . provides for a small, narrow, restricted version of diploma privilege that excludes the vast majority of those we were advocating for,” the group said on its website.
Turning to crowdsourcing, Diploma Privilege for D.C. has started a running list of law firms, legal aid organizations, government agencies, and other legal employers and their position on the three-year supervised practice rule. “There are about 25 firms and governmental organizations that have given their incoming workers a hard no,” says Carson, a member of the Diploma Privilege for D.C. coalition.
In a statement, Venable LLP, one of the firms listed on Diploma Privilege for D.C.’s document, said it “expects each incoming associate to take the bar exam and not rely on provisional licensure exceptions. We have also encouraged any incoming associate who has extenuating circumstances that will prevent them from taking the exam, or who did not complete the registration for the October exam, to let us know. None have done so to date. We continue to monitor the situation and consider the circumstances of our incoming associates on a case-by-case basis.”
Hogan Lovells US LLP said it “encourage[s] incoming D.C. associates to take the remote bar exam, which enables law clerks to become licensed to practice law sooner and provides other logistical benefits. We also invite those who anticipated difficulties in sitting for the bar exam in October to reach out to the firm and discuss the possibility of seeking a waiver.”
Another concern of prospective lawyers is the mandate that those who will practice under the emergency temporary practice rule must specify in all business documents that they are under the direct supervision of one or more D.C. Bar members and that they are not members of the Bar.
Carson compares the requirement to wearing a stigmatizing “scarlet letter.” “Law firms don’t want to deal with that,” Carson says. “They don’t want an attorney with a stigma. They don’t want a pseudo-attorney.”
Wiredu says those distinctions may come with some economic consequences. “Maybe the firms won’t be able to bill you out to their clients. [Law firms] may have to bill you out differently. All of those distinctions and factors come into play.”
Accruing Debt & Narrow Path to Practice
One of the strongest arguments for diploma privilege and the expansion of emergency temporary practice is that they help alleviate the mounting financial debt of recent law school graduates. On Diploma Privilege for D.C.’s Twitter account, some graduates have vented about spending between $8,000 and $20,000 in preparation for the bar exam, covering cost of living expenses, study materials, and bar exam registration fees, among others.
“My law school cost me about $186,000 — that’s a total for my three years. From May until now, I’ve definitely spent a little more than $15,000 studying for the bar exam,” Carson says. “So, you go from $186,000 to tacking on about $15,000 more. Now, I’m more than $200,000 in debt for my legal education. [The September 24 order] makes you feel that everything that you’ve worked for amounts to nothing.”
Those advocating for diploma privilege also argue that the bar exam has long served as a barrier to people of color, women, and economically disadvantaged law graduates entering the legal profession. Others question if it truly protects the public from incompetent and unethical lawyers.
Jordan Couch of Palace Law LLP in University Place, Washington, released a comprehensive proposal on June 28, 2020, in favor of diploma privilege, citing data from the Washington State Bar Association’s Discipline System Annual Report from 2017 to 2019 and the American Bar Association’s “Profile of Legal Malpractice Claims: 2012–2015” study.
“For the past three years in Washington, almost 60% of the ethics complaints against attorneys relate to professional misconduct, communications, diligence, safeguarding property, and termination. The bar exam does not test any of these professional requirements,” Couch argued. “RPC 1.1 (Competence) is the only ethical rule which the bar exam can be said to test. Competence violations account for about 1% of ethics complaints annually.”
The ABA study shows that lawyers with more 10 years of experience account for a disproportionate number of malpractice complaints. “The data indicates that malpractice complaints are not a result of new lawyers lacking substantial knowledge but more experienced attorneys facing overwork and burnout,” Couch said.
Wiredu says the bar exam is specifically designed as a gatekeeping mechanism for the profession. “I’m not saying that it’s right. But I think [it’s] like any other profession that requires a license to practice,” she says.
Judge Blackburne-Rigsby said she and her colleagues on the court concluded that the steps the court has taken — offering a remote bar exam, arranging reciprocity with the 12 other jurisdictions administering the same exam, and expanding temporary practice opportunities under the supervision of a licensed attorney — “are sufficient accommodations for recent law school graduates in light of the pandemic.”
“We further felt that any waiver should be for those who ‘have experienced significant hardship relating to the pandemic that has made taking the October 2020 remote bar examination infeasible.’ 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 chief judge added.
