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Why experienced lawyers should support the ABA’s limited practice rule in response to bar exam postponements

Swearing In

The recent COVID-19 crisis has impacted us all. But in the legal world, the class of students graduating from law school in spring of 2020 may be the most impacted professionally.

They have had their classes abruptly pulled to an online format and their commencements cancelled. Several states have postponed the July bar exam, and it is a distinct likelihood they may graduate into a recession they could never have foreseen. It is a scary and uncertain time for these students.

That’s why I strongly support state-level proposals to allow students to practice in a limited way and consequently also strongly support the ABA’s expeditious adoption of a model rule to guide states.

I especially encourage experienced members of the bar to support a similar solution should their state’s bar exam be postponed. Here’s why:

Student loan realities have changed from when you graduated

As a law professor, I am reasonably familiar with this issue, as it affects my own students.  Many of these students have taken on six-figure student loans, some as much as $250,000 or $300,000, to attend law school. Those loans must go into repayment in the fall.  This is a problem that those of us who graduated from law school several decades ago did not have to face, at least to this degree of indebtedness.  

Almost all of this year’s graduates were planning to take the bar exam this summer and would have obtained fall employment conditioned upon passing the bar exam.  Through no fault of their own, they are now prevented from doing so—a fact that may well spell economic disaster for many of them if we do nothing.

Law school graduates are well-equipped to practice in a limited way

Many experienced lawyers have deep reservations about recent trends towards expanding the ability of “non-lawyers” to provide legal services.  While that is a subject that merits rigorous and continued debate, it’s fundamentally different from the situation at hand. 

These students are no less sufficiently trained than any recent graduate, including every member of the ABA who has recently graduated from law school, passed the bar exam, and been sworn in.  This year’s graduates do not lack training but the opportunity to obtain licenses.

Indeed, I disagree that these recent graduates are “non-lawyers.”  Characterizing them as “non-lawyers” places them in the same category as people without law degrees, like plumbers, engineers, and, for that matter, mendicants.  Our recent law graduates have the same training we do, and almost all of them will be our colleagues in every sense once this pandemic passes.  They are simply lawyers who lack licenses, like any of us in states where we are not admitted.  Once again, their lack of practice privileges is through no fault of their own.

Safeguards ensure the public will not be harmed

This and many other state-based proposals would require licensed lawyers to supervise these recent graduates closely, just as they would be expected to do with any young associate, and would come with the same ethical obligations to do so.  In addition, any client for whom these recent graduates would work would be fully informed as to the graduate’s provisional status and would either be asked to consent or would be given an opportunity to object.  

The right thing to do is to support our future colleagues, for the good of the profession

Finally, I think it would be both unwise and unseemly for those of us with years of experience—often in much more comfortable financial and professional positions—to oppose responsible, gainful employment for our youngest, as-yet-unlicensed colleagues in law.  Not only would this promote needless intergenerational professional conflict, but it would also have a strongly disproportionate effect upon the least affluent of our recent graduates, a large number of whom are recent graduates of color.

Telling an entire class of successful law students that they cannot take their licensing exam for an indeterminate period and must instead sit on their hands and pay off their student loans without the opportunity of professional employment is simply wrong.  The ABA’s proposal seeks to remedy that wrong, while maintaining appropriate professional safeguards.  

William Mock William Mock is a Professor of Law at UIC John Marshall Law School. He is a longtime ABA member and currently serves as the ABA Liaison to UN Open-Ended Working Group on Ageing, as the Budget Officer of the ABA Senior Lawyers Division, and as a member of the ABA Section of International Law’s Council.