Event comes as several states, including Minnesota, are studying how to license attorneys
Mitchell Hamline School of Law will host a daylong online conference on the future of bar licensure on Friday, April 22, 2022.
The event will explore the history of the bar exam – currently the most used method to determine who can be licensed in each state – as well as possible alternative pathways towards licensure.
“This is a perfectly-timed conference for Mitchell Hamline to be hosting,” said President and Dean Anthony Niedwiecki. “The pandemic only amplified a problem we’ve had for years in how we make the legal profession accessible and inclusive to everyone, which is why important conversations are now happening across the country.”
Several states took temporary measures during the pandemic to allow candidates to be licensed in ways other than the bar exam; several others are studying whether to make permanent changes to licensure.
“This conference starts with the premise that we can and should build a better and more inclusive legal profession,” said Professor Sharon Sandeen, director of Mitchell Hamline’s Intellectual Property Institute, which is co-sponsoring the conference along with the University of Minnesota and University of St. Thomas law schools.
The online gathering will include presentations from many leading scholars in bar reform efforts, including members of a cohort of scholars called The Collaboratory on Legal Education and Licensing Practice Reform.
Concerns about the bar exam aren’t new but gained renewed attention when the pandemic created obstacles for recent law grads to become licensed (see timeline below). Several such recent grads are helping to plan the conference. “The crises of COVID-19 and racial injustice exposed cracks in a legal system that previously had been presumed to be fair and in the best interest of the public,” wrote Professor Marsha Griggs of Washburn University School of Law, in a Howard Law Journal article. Griggs will speak at the conference.
The idea for the event arose when Professor Sandeen wanted to provide a place for recent law grads who sparked the recent bar reform movement to gather. The online conference in April will be followed with an in-person event this fall.
Advocates of alternative pathways, including Dean Niedwiecki, point to the history of the bar exam, which was created in the early 20th century to exclude marginalized people – including Blacks and new immigrants – from the profession.
Niedwiecki, along with three additional Mitchell Hamline deans – Leanne Fuith ’10, Lynn LeMoine ’11, and Dena Sonbol ’08 –sit on various working groups currently studying the bar exam in Minnesota. It’s part of a two-year effort by the state’s Board of Bar Examiners to research possible alternative ways to license attorneys in Minnesota, in addition to the bar exam. Those include diploma privilege, which automatically grants licensure to graduates of a state’s law schools. Wisconsin is currently the only state with diploma privilege for graduates of its two law schools, though a handful of states enacted temporary diploma privilege during the pandemic (see below). New Hampshire’s only law school has a limited program for up to 24 students each year to gain bar admission at graduation if they complete a required portfolio.
Another alternative pathway would pair law school graduates with licensed attorneys. Graduates would be granted licenses after working in the profession as an apprentice for a certain number of hours and presenting a portfolio of the work they’ve done under supervision. Oregon is currently considering this as one of two alternate pathways that recently gained preliminary approval from its state Supreme Court (more below).
In addition to discussing alternative ways to license future attorneys, there are deliberations about reforming the bar exam itself, in response to criticisms that it doesn’t measure whether a candidate would be a competent attorney.
“The bar exam does not fully reflect the realities of practice,” wrote Dean Fuith in a December 2021 article for Bench & Bar magazine. “Scholars have attributed the racial gaps to the design of the bar exam, a high-stakes test that requires memorization of legal rules across a wide array of areas of law.
“Law practice today, in contrast, does not rely on rule memorization. In fact, most legal practitioners practice in niche areas of law and do not need to be familiar with the broad swath of laws tested on the bar exam to be considered competent in their work.”
After a several-year study, the National Conference of Bar Examiners in early 2021 approved recommendations from a working group for what the next generation – or NextGen – of the bar exam would be. Those recommendations include testing fewer subjects and placing a greater emphasis on lawyering skills in the test, while making it affordable and accessible to all. Minnesota’s study also has a working group focused on the NextGen bar exam.
Most current conversations happening across the country, including in Minnesota, are focused on whether to add pathways to licensure in addition to the bar exam, as opposed to getting rid of the bar exam entirely. “It’s important to find ways to measure whether someone will be a competent attorney,” noted Niedwiecki. “That can be through a test like the bar, but only if that’s what the test measures.
“But I also think there’s a lot of room to find other ways for people to showcase their competency.”
A timeline of actions related to bar licensure and the bar exam taken in recent years
2018: The National Conference of Bar Examiners appoints a task force to come up with recommendations for the next generation (NextGen) of the bar exam. Those recommendations, approved in January 2021, include testing fewer subjects and placing a greater emphasis in the bar exam on lawyering skills.
March 2020: Eleven scholars publish a policy paper outlining six options for jurisdictions to consider for the Class of 2020, given the disruptions caused by the COVID pandemic. The scholars call themselves The Collaboratory; they include Professor Carol Chomsky from the University of Minnesota Law School. Six of them will appear at Mitchell Hamline’s event on April 22: Claudia Angelos, Clinical Professor of Law, New York University School of Law; Mary Lu Bilek, Former Dean and Professor of Law, UMass Law School and CUNY School of Law; Andrea A. Curcio, Professor of Law, Georgia State University School of Law; Marsha Griggs, Associate Professor of Law and Director of Academic Enrichment and Bar Passage, Washburn University School of Law; Joan W. Howarth, Distinguished Visiting Professor, William S. Boyd School of Law, University of Nevada at Las Vegas; Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law Emerita, Moritz College of Law, The Ohio State University.
2020: The recommendations from the Collaboratory’s policy paper include emergency diploma privilege, which several jurisdictions granted, meaning new graduates wouldn’t have to take the bar to be licensed in that jurisdiction. They included Louisiana, Oregon, Utah, Washington, and Washington, DC. Several other states, including Minnesota, denied requests for temporary, or emergency, diploma privilege.
July 2020: The California Supreme Court permanently lowers the passing score for the bar exam; Rhode Island soon follows suit as several other states consider the move. Minnesota already has one of the lowest passing scores in the nation.
2020: The California Supreme Court and California Bar Board of Trustees establish a blue-ribbon commission on the future of that state’s bar exam, with a final report and recommendations expected in 2022. Similar task forces have been created in Delaware, George, New York, Oregon, and Washington.
June 2021: Minnesota Board of Law Examiners announces a two-year study of the bar exam, with a final report and recommendations to be presented to the Minnesota Supreme Court in 2023. Several Mitchell Hamline leaders are on various working groups within this effort, including Dean Niedwiecki, who called for major reforms to bar licensure in his September 2021 installation speech. That speech took place a few days after the meeting that kicked off the state’s two-year study.
January 2022: The Oregon Supreme Court gives unanimous preliminary approval to creating two alternative pathways to licensure in addition to the bar exam. Those pathways are an experiential learning pathway for students and an apprentice-like supervised practice model for recent graduates. Final approval isn’t expected until at least 2023.
January 2022: Legislation is introduced in South Dakota to enact diploma privilege for graduates of the state’s only law school, the University of South Dakota Knudson School of Law. The legislation has not passed either chamber.