Law Schools

Why Attorney Supervision Could Undermine The 'Diploma Privilege Plus' Movement

But just because there are obstacles isn't a reason not to try.

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With the bar exam short-circuited by the pandemic, interest in alternatives to the test have gained traction. After years of the monolithic exam cramping everyone’s imagination, new paths to licensing are finally being discussed in the open, with one state poised to make a leap, and students and legal educators across the country pushing other jurisdictions to follow suit.

At this point, the calls for reform are targeted at the current crop of law school graduates stuck with a sliding bar exam date and no guarantee they can even take the test when the world resumes. But there are those who see this as an opportunity to engage in a major long-term overhaul of the process, one that could include knock-on effects in law school reform as regulators are forced to take seriously the role of guaranteeing that law schools produce capable attorneys rather than pawn off problems on a bar exam three years and hundreds of thousands of dollars later.

The most popular bar exam alternative calls itself “diploma privilege plus” and requires law school graduates to jump through a number of theoretical and practical hoops to earn admission to the bar, including enhanced CLE obligations and a period of supervised practice. It’s a sound program for attorney licensing, which is why the National Conference of Bar Examiners desperately unloaded on it. But there is one nagging issue that needs to get cleared up if this is going to work: who is going to do all of this supervising?

This isn’t a problem for law school grads with jobs lined up in the industry. An associate’s first year is where most of an attorney’s practical education happens anyway. But for those not planning to work explicitly in the legal services industry or those planning to go solo out of the gate, where are they finding these positions? The law is already a harsh workplace of long hours and occasionally dictatorial personalities. Add in that there is already an unfortunate loophole in the labor laws that allows practitioners to employ lawyers without paying them a minimum wage and the risks to aspiring attorneys of handing considerable licensing power to their supervisors is obvious before we even broach the risk of sexual or racial harassment. Without a solution that protects law school graduates from exploitation, the diploma privilege plus regime will always have this lingering weakness.

Though it’s one that could be solved rather simply if the law schools were willing to revolutionize themselves too. If the third year class schedule got junked and replaced with a supervised practice system administered by the school, clinics would fulfill this function for those uninterested in taking private sector jobs, while both government and firm partners could take 3Ls on to learn practical skills while providing standardized feedback to the school that will ultimately issue the supervisory period approval.

It’s not easy. There are vested interests in the status quo, tangential reforms that law schools aren’t going to like, and new safeguards that need to be worked out and implemented. However, the opportunity is here for some industry self-reflection and for those unafraid of challenges, this could be the juncture where the profession is strengthened for the future. Reforming the law is a lot like stopping a cruise ship on a dime.

But much like stopping cruise ships, an infectious disease is more than up to the task.

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Earlier: Law School Student Governments Petitioning For Diploma-Privileged Admission
First State Opts For Emergency Diploma Privilege Plus Admission
NCBE Trashes Diploma Privilege, Sprinkles In Some Racist And Sexist Conclusions
NY Bar Exam Encounters New Hurdle — Not Enough Space To Test Everyone

HeadshotJoe 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.

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