Apr. 14, 2020
Why diploma privilege should be the California legal profession’s visionary response to COVID-19
Nearly 1,400 signatories have signed onto a letter to the Supreme Court of California, respectfully requesting an order granting diploma privilege to all recent graduates seeking admission to the legal profession. Similar petitions are springing up across the nation.
Pilar Margarita Hernández Escontrías Ph.D
Pilar is a J.D. candidate at UC Irvine School of Law.
Donna Chayanne Saadati-Soto
Donna is a J.D. candidate at Harvard Law School.
Getting kicked out of law school housing. Losing part-time jobs. Taking care of sick family members. Having full-time employment offers rescinded. Choosing between pursuing your dream career as an attorney and providing for your family.
This is the grim reality for many of the nearly 1,400 signatories who have signed onto a letter to the Supreme Court of California, respectfully requesting an order granting diploma privilege to all recent graduates seeking admission to the legal profession. Similar petitions are springing up across the nation. At least 2,000 students have signed onto a national NCBE petition similarly urging for diploma privilege, and law professors have created a petition that has garnered over 300 signatures in support of diploma privilege, all in a matter of days.
As we adapt to a new world, we must seriously ask ourselves why a robust consideration of diploma privilege is lacking in most conversations regarding alternatives to the bar exam. Some have called diploma privilege a tool to unleash a cadre of unprepared attorneys onto the public. Others have highlighted that the profession will never allow for such a "radical" licensing scheme, urging that we not waste our time on a battle we are sure to lose. Particularly troubling, some view the diploma privilege movement as self-serving, entitled posturing by millennials who want to take advantage of a public health crisis to acquire professional benefits.
As we see the above critiques circulate daily, we write with one simple goal: to encourage our mentors, professors, prospective employers, future colleagues, and legislators to reflect on the possibility that diploma privilege may just be the most impactful and ethical move the legal profession in California can make to stand in solidarity with our communities most heavily affected by COVID-19.
Provisional Licensing Is Not the Answer
The diploma privilege movement stems from the fundamental belief that new lawyers have a significant role to play in aiding clients during this pandemic. Unfortunately, the aftermath of COVID-19 will result in long-term economic consequences, disproportionately affecting those most oppressed and most in need of our assistance. Many more will lose their jobs, homes, and loved ones, resulting in a need for more lawyers, not fewer. Put bluntly, COVID-19 will amplify concerns regarding access to justice for those who need it most.
While some view diploma privilege as novel, it is not unprecedented. Indeed, two states already offer diploma privilege: Wisconsin and New Hampshire. To our knowledge, these states do not have higher rates of attorney sanctions or disciplinary proceedings, and we have yet to see movements to abolish diploma privilege in those two jurisdictions. Just this week, the Utah Supreme Court decided to adopt a diploma privilege scheme, and the Pennsylvania Bar Examiner's COVID-19 Task Force recommended provisional licensing with specific Pro Bono requirements in lieu of a bar exam. Still, while these plans may work for those unique jurisdictions, they would not meet the needs of California graduates. The Utah scheme, for example, extends diploma privilege only to those students from law schools with an 86% or higher bar passage rate. For California, such a threshold would only include two schools, excluding over fifty California law schools.
Still, stakeholders have expressed provisional licensing as an alternative to a summer bar exam, requiring that students sit for the exam at a later date. This has become a popular stance among law school deans, some of whom have publicly advocated for a provisional licensing scheme. Yet, as we wrote in our letter to the Supreme Court of California, arguing for provisional licensing in light of current circumstances is even more disruptive to our legal careers than the bar exam would have otherwise been.
Requiring young attorneys to sit for the bar one-to-two-years after they have completed law school would further disadvantage certain populations of law students. Absent a global pandemic, studying for the bar exam is a two-to-three-month process. Under a provisional license scheme, many of us will simply be unable to take unpaid leaves of absences from our jobs to study. The unfortunate reality is that students of color, students with greater financial responsibilities, and students with families will be hit hardest by provisional licensing. Students who are pursuing a career in Big Law will have such accommodations provided by their employers when the time comes. Those of us who are going into public interest law, as well as those who are caring for our parents and extended families, will have to manage some other way.
Many questions remain under the provisional licensing proposal. Will small public interest organizations have the capacity to provide us paid leave as we prepare for the exam? Will additional bar study loans, which add onto the hundreds of thousands of dollars in debt many of us accrue, be made available two years after graduation? If not, many students will not even have a shot at passing the bar, not because they are incompetent, but because they did not have the means to take time off of work to properly prepare for an exam that most practitioners agree does little to prepare us for real-world lawyering.
California Has an Opportunity to Lead the Way
Perhaps the most tragic position advanced by opponents of diploma privilege -- and one that ought not define the parameters of this debate -- is that diploma privilege simply is not possible. It lacks pragmatism and a clear understanding of the stakes involved, they say -- not to mention, it is fueled by an unbridled optimism that plays no role in seeking a viable solution.
But we understand the stakes. And that optimism is what got us here. We cannot and will not allow convention to stand in the way of equity, for both students and clients. As two women of color whose families' collective generational sacrifices simultaneously ground us and propel us forward, we understand profoundly the burden that California communities will be forced to carry should a provisional licensing scheme be enacted. Our future clients are already suffering from compounding legal issues as they face prolonged adjudication of their cases due to court closures. They, too, will pay the hidden cost of provisional licensing.
California has always led the way. It has always been a beacon of hope for visionaries and cynics alike. And we have employed empathy and innovation in the toughest of times. We have an opportunity to show how the legal profession can creatively, ethically, and compassionately brainstorm courageous responses to our state's need in times of crises. In seeking a solution, we implore all decision makers involved to maintain a transparent and open process for all voices to be heard.
As students who have advocated for California's most marginalized communities, we will continue to advocate on their behalf as new attorneys. Will you fight next to us?