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Earlier this month, Louisiana cancelled the bar exam. This week the state became the fourth to enact "diploma privilege," allowing recent law school graduates to practice law without sitting for the three-day bar exam.
The Louisiana Supreme Court this week ruled that recent law school graduates can practice law without taking the bar exam, a three-day licensing test that was canceled due to public health concerns amid the coronavirus pandemic.
The 4-3 decision, issued Wednesday, is an “unprecedented and bold action” in a time of “absolute disruption not only to the legal profession but to every aspect of society,” Chief Justice Bernette Johnson said in a statement. “Despite these uncertain times, as Justices, we continue to have a responsibility to ensure the competency and integrity of the legal profession … we believe that our action today is not only warranted, but necessary during this public health crisis.”
To be eligible to practice law under the order, graduates must have received their degrees no earlier than December, already have registered for the 2020 bar exam in Louisiana and not previously sat for a bar exam in any other state. They must also complete 25 hours of continuing legal education classes and a mentoring program, provisions the court said “will serve as guardrails to ensure the competency and integrity of the newly-admitted attorneys during their first year of practice.”
The move marks the second time that Louisiana has suspended the bar exam; the first was in 1953, for some law school graduates during the Korean War. Louisiana is the fourth state to waive the exam requirement for recent graduates during the coronavirus pandemic, following Utah, Washington and Oregon.
In a dissenting opinion, Louisiana Supreme Court Justice William J. Crain said the court’s decision would allow graduates who would have failed the bar exam to practice law in the state’s courtrooms.
“Based upon historical performance, at least 20%, and likely more, would not have passed our bar examination,” he wrote. “These applicants are being gifted a license to practice law because the majority concluded they cannot safely show up for the test. However, once practicing they will be required to go to court like everyone else.”
The notion of “diploma privilege”—allowing graduates to practice law without sitting for the bar exam—was common practice in at least 34 jurisdictions in the late 1800s, when states wanted to encourage aspiring lawyers to seek formal education rather than learning law by apprenticing with working attorneys. It became less common by the 20th century, and today Wisconsin is the only state in the country that does not require attorneys educated at in-state law schools to take the bar exam.
At least 10 other jurisdictions—Washington D.C., Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio and Tennessee—have canceled in-person bar exams and will instead offer remote testing dates in October.
None of those states have moved to allow graduates to practice law without first taking the exam, and on Thursday, a working group appointed by the New York State Court of Appeals explicitly rejected the premise of diploma privilege. The bar exam is necessary to assure the public “that admitted attorneys meet minimum competency requirements,” the group said in a statement.
Kate Elizabeth Queram is a staff correspondent for Route Fifty and is based in Washington, D.C.