UPDATE: Deans of DC Law Schools Urge New York and Maryland Leaders to Grant Diploma Privilege for 2020 Graduates
August 27, 2020
Acting Dean Robert Dinerstein, together with the deans of the other five DC law schools, sent a letter this week to New York Governor Andrew Cuomo, Attorney General Letitia James, Majority Leader Andrea Stewart-Cousins, State Assembly Speaker Carl Heastie, and Chief Judge Janet DiFiore advocating for diploma privilege for 2020 graduates.
“We, the undersigned deans of law schools in Washington, DC, join the deans of New York law schools, other laws school deans, many bar applicants and members of the legal profession, in support of offering diploma privilege as a temporary option for admission to the New York Bar at this extraordinary time of a global pandemic,” the letter states. “We advocated for temporary diploma privilege in the District of Columbia, and we urge New York to do the same on an emergency basis.”
The DC law school deans are also advocating for diploma privilege in the State of Maryland. They sent a similar appeal to Chief Judge Mary Ellen Barbera and the State Board of Law Examiners.
“We submit that temporary or emergency diploma privilege for those with the intent to practice in Maryland is a necessary and workable option,” the letter states, stressing that many DC law graduates will take the exam in Maryland. “We thank all involved in this effort, including the graduates who have acquitted themselves well in thorough and fact-based advocacy, and in whom we have enormous pride and hope for excellent and effective work in support of their clients throughout their careers.”
UPDATE: DC Law Deans Comments in response to DC Court of Appeals Notice
August 12, 2020
Dear WCL 2020 Graduates,
I am writing to follow up on my message to you dated August 6, 2020, regarding our continued advocacy for alternatives to the DC bar exam. Today, the DC law deans submitted joint comments to the DC Court of Appeals in response to its July 29, 2020 Notice seeking comments on whether to adopt diploma privilege or broadened temporary emergency practice in addition to the October 5 online examination. The comments argue principally for diploma privilege, with broadened temporary practice as a secondary choice. The comments also raise concerns regarding whether candidates with disabilities who plan to take the October online examination will receive adequate and timely reasonable modifications. The joint comments are attached to this message, along with the two previous messages DC law deans sent to the DC Court of Appeals.
I wish you all the best during these challenging times.
Acting Dean (2020-21) and Professor of Law
American University Washington College of Law
Message to 2020 Graduates Regarding Bar Examination and Admission Advocacy and Services
August 6, 2020
Dear 2020 WCL graduates:
Although this has been quite a summer for all of us, we know that your class has had to deal with everything the rest of the society is facing as well as the uncertainties of the bar examination and admission to your state’s bar. We empathize with your situation and want you to know that we are working actively, in concert with legal educators locally and nationally, to address your concerns. Yesterday, I wrote to our faculty to bring them up to speed on our efforts with regard to the DC bar. In this message, I want to set out for our 2020 graduates (1) the efforts in which I have been involved in DC and elsewhere; and (2) the activities of our Office of Academic Excellence (OAE) during this eventful summer.
Advocacy for the Diploma Privilege and/or Broadening the Circumstances under Which Law School Graduates Who Have Not Yet Been Admitted to the Bar Can Practice Law in the District of Columbia
As those who planned to sit for the DC bar examination know, the D.C. Court of Appeals decided in June to forgo an in-person bar examination and instead offer a non-UBE on-line examination on October 5-6, the results of which would only be portable to states with which DC has a reciprocity agreement (currently Maryland, Massachusetts, New Jersey, and Tennessee). Although an on-line examination avoids the health and safety problems an in-person examination would present, many candidates for the bar are continuing to deal with such problems as being worried about their health and safety or that of their loved ones, not having an appropriate place from which to take the exam, not having reliable internet access, or not knowing if they will receive (or knowing that they will not receive) needed reasonable modifications based on their disabilities.
As a result, candidates and their allies, in DC and other jurisdictions, have suggested several possible alternatives to the bar examination. A number of 2020 law graduates have advocated for DC to adopt a diploma privilege in lieu of an examination. As you probably know, diploma privilege means that a graduate of a law school may practice law in that jurisdiction so long as he or she has completed the law school curriculum and received the JD degree. In pre-Covid-19 times, only Wisconsin offered a “pure” diploma privilege, which was only available to graduates of the two law schools in the state, University of Wisconsin and Marquette. (New Hampshire has a special program that lets some graduates of the University of New Hampshire School of Law, Daniel Webster scholars, practice law without having taken an examination.)
In light of the pandemic, however, several states, including Utah, Oregon, Washington, and Louisiana, have adopted some version of the diploma privilege, and other states (e.g. New York and California) are considering it or are being asked to do so (e.g. Illinois and Pennsylvania). On August 4, 2020, the ABA House of Delegates adopted Resolution 10G, which puts the ABA on record as urging the highest court or bar admission authority of each jurisdiction to establish temporary emergency licensing measures, including, inter alia, a form of diploma privilege and admission after completion of a supervised practice program.
Some of the states that have adopted the diploma privilege have broad versions of it, making it available to any 2020 graduate of an ABA-accredited law school. Others have conditioned the diploma privilege on the applicant having graduated from a law school the first-time bar passage of which is at least 86%. And still others have conditioned the diploma privilege on completion of a certain number of CLE hours.
There have been several developments of note regarding admission to the District of Columbia bar:
1. The deans of the DC law schools have written two letters to the chief judge of the DC Court of Appeals (dated April 1 and July 13, 2020, respectively), the most recent of which advocated for “a diploma privilege rule with safeguards such as an introductory remote class or a period of mandatory supervised practice.” Dean Nelson was a signatory to the first letter, and I signed the second one.
2. The July 13 letter also reasserted the deans’ support for the alternative of “a temporary provisional licensure of law graduates under the supervision of a licensed attorney,” which the clinical deans of the DC law schools had originally proposed to the Court in May, and on which they had been meeting with several judges and a representative of the committee on admissions. The Court acknowledged the letter and indicated it would respond shortly to the deans’ letter.
3. On July 16, 2020, a group of nine 2020 graduates seeking admission to the DC Bar (with signatures of 376 other applicants, and many additional signatures of support, including from WCL faculty professors Beske, Ferguson, Robbins, and Wermiel) filed a Petition for Emergency Court of Appeals Rule Amendment, in which they asked the Court to adopt the diploma privilege (without any school-based bar passage threshold).
4. Upon receiving the petition, the Court decided that it would be inappropriate to have an informal discussion with the deans about alternatives to the bar examination. The deans discussed whether to file its letter in the petition proceeding to support the petitioners, but because of the following action, that proposed action became moot.
5. In response to the emergency petition, the DC Court of Appeals issued an order dated July 29, 2020, seeking comments on whether to adopt a diploma privilege and/or “broaden the circumstances in which law-school graduates who have not yet been admitted to the D.C. Bar . . . can temporarily practice law.” (emphasis added). The Court will go ahead with the remote exam on October 5-6, but is soliciting comments from interested parties on several questions, including the needs addressed by these alternatives to the bar exam, the concerns raised by these alternatives, the limits or conditions that should be imposed on any diploma privilege or expanded temporary practice, and, perhaps of greatest relevance to our faculty, “What role can or should law schools and the Bar play in addressing these issues?” Comments are due by August 12, 2020.
6. On the day the Court of Appeals issued its order, I contacted the other DC law school deans to inquire whether they would support our filing comments in response to the Court’s order. The deans responded positively, and I volunteered to draft language to answer the question about the role law schools should play in this process. Among other things, I intend to emphasize that because of the quality of the legal education that all of the DC law schools provide, and the safeguard of working under the supervision of a licensed DC attorney, the Court can be reassured that client interests will be adequately protected. We will file the comments by August 12, and will post the comments on the WCL website.
Advocacy Regarding Reasonable Modifications and the October 5-6 On-Line Examination
In the best of times, securing appropriate reasonable accommodations for test-takers with disabilities is a difficult and uncertain proposition. Applicants may not receive the accommodations they need, or, even if they ultimately receive them, not get confirmation until right before the exam, which only increases the anxiety they may experience prior to sitting for the exam.
Although precise information is hard to come by—including in DC, where neither the Court nor the committee on admissions has clarified the accommodations that will be made available to test-takers—there are serious concerns about whether test-takers with disabilities will receive adequate accommodations. For example, it has been reported that test-takers may not be able to use scratch paper and, if they look away from the computer screen, may be flagged for possible cheating. Some jurisdictions will not let test-takers seek additional accommodations beyond those they initially requested even if different ones are needed for an on-line examination. And it also appears that some accommodations will only be available if a test-taker takes the test in person, potentially jeopardizing his or her health.
As you probably know, I have specialized in disability rights during my career. I am working with a group of lawyers and academics to discuss possible strategies to address this reasonable accommodations problem, which raises serious concerns under the Americans with Disabilities Act.
Deans of US law schools have been actively involved in urging their state courts and bar authorities to explore alternatives to the bar examination this year. In addition, the deans have urged these entities to take other steps in response to the global pandemic.
On July 9, 2020, 28 deans wrote to the New York Court of Appeals requesting the Court to continue its order of June 4, 2020, waiving distance learning limitations, through the spring 2021 term. (The Court’s order had already waived these limitations through the fall 2020 term.) The Court indicated it was not yet considering whether to consider such a waiver, though it acknowledged the “extraordinary steps [law schools] have taken to ensure the continuity and quality of your legal education programs during a time of great uncertainty.”
On July 16, 2020, a group of 79 deans wrote a letter to the president of the National Conference of Bar Examiners (NCBE) urging it to cancel the in-person administration of the MPRE in August 2020 because of the public health risks presented. Instead, the deans argued for postponement of the exam and adoption of an on-line version. NCBE rejected this request, contending that it was too late to change the August exam to an on-line version.
I was a signatory on both of these letters.
Actions by the Office of Academic Excellence and WCL Faculty
At my request, Joni Wiredu, senior director of the OAE, provided the following information about her office’s activities this summer:
When bar examiners began postponing bar exams as early as May, OAE began monitoring bar examiners’ websites for rapidly changing bar exam dates and registration filings and providing up-to-date information to recent graduates via email alerts and posts to OAE’s website and Instagram page. When DC abruptly closed its registration filing period, OAE, in consultation with the Dean’s Office, provided talking points and strategies to inspire positive outcomes for WCL students affected by this disruption. When DC re-opened its bar application period and announced an online bar exam, OAE quickly inquired about the use of campus facilities for bar studies and space for recent grads to take the exam due to concerns students raised regarding testing environments and Wi-Fi connectivity.
In response to weekly and sometimes daily bar exam changes, OAE counseled students on the decision process to delay or continue bar preparation while assisting with the modification of study plans and strategies in preparing for the bar exam. To increase engagement and outreach to individual students, OAE, with the assistance of faculty and staff volunteers, launched the Bar Coaches Initiative. This program was specifically designed to proactively engage students by offering encouragement and support throughout the bar examination period. Bar Coaches communicate bi-weekly with students to offer individualized support, study strategies, and referrals to OAE resources.
OAE’s supplemental bar exam resources have included bar prep advising/strategies; individualized bar preparation study plans; essay simulations, debriefs, and feedback; virtual bar exam study breaks; professor bar exam office hours; and mock bar exams. In response to the extended bar examination period this summer, the office expanded bar prep services, and Bar Coaches are continuing to work with recent grads, while also gearing up to work with current WCL students. OAE will conduct MPT simulations, provide MPT feedback, and, in September, administer a mock on-line bar exam and offer “Final Push” sessions.
On Friday, August 14th at 5:15pm, OAE will host a zoom session on memorization techniques and other bar prep strategies.
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As I hope the above demonstrates, we’ve been busy trying to deal with the moving target that characterizes this summer’s bar examinations and admissions policies. We promise to keep you informed as we learn more information, and to post any public letters that we submit. In the meantime, if you have any questions about the bar examination or bar admission practices, please feel free to contact Joni Wiredu at OAE.
Acting Dean (2020-21) and Professor of Law
American University Washington College of Law