Gordon Smith and Elizabeth Kronk Warner: Utah opens the way for new lawyers to begin their service

The COVID-19 pandemic is creating an unprecedented need for access to legal professionals in Utah. Businesses are closing, people are losing jobs, and many Utahns need help with housing, food, health care, insurance, and government assistance. Our criminal justice system is stressed, and access to civil justice is further out of reach for many.

These are challenging times, but as Gov. Gary Herbert has said, “Times like these bring out the best in people. This is a time for Utah to shine.”

Thursday, the Utah Supreme Court decided to shine by proposing an emergency diploma privilege, which would grant bar admission to recent graduates of selected law schools in lieu of a bar examination. As the deans of Utah’s two law schools — the J. Reuben Clark Law School of Brigham Young University and S.J. Quinney College of Law at the University of Utah — we applaud the Utah Supreme Court’s decision to lead during the present crisis.

Diploma privilege was common in the late 1800s, when many states used this system to supplant the traditional oral examination by a member of the bar. Oral examinations were viewed as uneven measures of attorney competence, so many states turned to law schools to improve the quality of legal services. Unfortunately, at the time, law schools lacked the uniformity and rigor of modern legal education, and, in the early 1900s, the diploma privilege was displaced by a written bar examination.

Today, only Wisconsin makes general use of the diploma privilege. In Wisconsin, graduates of the University of Wisconsin Law School and Marquette University Law School who pass specified courses enter the practice of law without sitting for the bar examination. In Utah, under normal conditions, law school graduates study 10-12 weeks to prepare for the Utah Bar examination, which is administered at the end of July. The COVID-19 epidemic makes it impossible to ensure a safe administration of a July 2020 bar examination, and equally impossible to determine when another bar examination could be offered.

Asking our new law school graduates to wait for an uncertain future bar examination would be truly disastrous for citizens who need immediate legal help, employers who need support, and the graduates themselves. Utah applicants collectively spend hundreds of thousands of dollars, and tens of thousands of hours, preparing for the examination. They often must take 10-12 weeks off from work to study. Many now lack the money to pay for expensive preparation courses and the ability to take months off from work. They, like their neighbors, are struggling to juggle the pressures of homeschooling, lost wages, and even a lack of food to feed their families. Allowing these immediate access to the job market allows them to put their resources and talents into helping the most vulnerable Utah citizens.

Anticipating these problems on a national scale, experts in the field from around the U.S. recently wrote about the need to seek innovative solutions to “maintain the flow of new lawyers into the legal system,” and they endorsed the emergency diploma privilege: “This option is straightforward and easy to administer; based on Wisconsin’s experience, risks to the public are minimal. It would also be the most efficient way to get teams of licensed new lawyers on the front lines to help meet the legal challenges faced by our society as we first wage war to combat the virus and then rebuild profoundly damaged economic, social, and legal systems.”

Ours is a profession steeped in history and slow to change. The bar examination is a long-standing tradition and rite of passage for new attorneys. But, in this time of crisis, we need leaders who have the courage to employ new approaches, even if they come to us from the past. Many states are actively considering adoption of an emergency diploma privilege.

We applaud the Utah Supreme Court for being at the vanguard of this issue. Utah has a long history of neighbors helping neighbors, and the Utah Supreme Court has allowed our new graduates to do exactly that. This truly is a time for Utah and its legal community to shine.

Gordon Smith

Gordon Smith is dean of the J. Reuben Clark Law School at Brigham Young University.

Elizabeth Kronk Warner

Elizabeth Kronk Warner is dean of the S.J. Quinney College of Law at the University of Utah.