Sep. 25, 2020
Diploma privileges and full faith and credit licensing in COVID-19 era
The “diploma privilege” boils down to full faith and credit access to justice for “Us” and no faith and credit for “Them,” meaning graduates from out-of-state ABA accredited law schools. These COVID-19 law students will soon learn that full faith and credit access for “Us” and no faith and credit for “Them” is an epidemic in lawyer licensing across the United States.
Joseph Robert Giannini
Director, Lawyers United Inc.
Joseph is a member of the American Bar Association's Litigation Section and Legal Education and Admissions. He spearheaded legislation in California that was enacted into law in 2000 calling for full reciprocal admission for experienced sister-state attorneys, that was subsequently, diluted to provide only second-class limited bar admission privileges for corporate counsel and attorneys working for qualified pro bono organizations with the promise the issue would be re-visited in a few years.
Diploma privileges and full faith and credit licensing in COVID-19 era
The times can blind us to certain truths that later generations can see -- for instance, that laws once thought necessary and proper serve only to oppress. COVID-19 has led to the most severe economic downturn in our nation's history since the Great Depression concurrent with a readily observable justice gap of epidemic proportion.
Recent law school graduates from all walks of life confronting COVID-19 have complained about suffering more than their fair share of abuse. They have spent three years studying for their career, incurring law school fees generally in excess of $50,000 per year, and preparing to take the bar exam in a convention hall with thousands of their colleagues to assure a fair and equal testing process. Their expectations have been blocked through no fault of their own. Fear for public health and safety has caused many states to postpone the exam and substitute a never-before-tried online exam. For a test that applicants have poured their lives and neuroses into for months, having faith in the sanctity of the test is as important as the test itself. Many applicants of color have been handicapped with fundamental defects in facial recognition software. The exam, including requirements for mock exams, more than ever is one based on privilege and ready access to laptops with cameras and microphones. Some software companies in the testing business have refused to participate averring the technology is not sufficiently developed.
Moreover, the National Conference of Bar Examiners has made clear that a reduced-question, remote bar exam cannot reliably measure minimum competency due to the lack of psychometric research: "Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling."
The United for Diploma Privilege organization has argued that all states should temporarily adopt the "diploma privilege" and waive the bar exam. Law professors and students argue that bar applicants are being forced to either risk their lives or to use untested software that has lots of problems to take an exam that does nothing to assess their ability to practice law. Many legal experts argue that passing a bar exam has nothing whatsoever to do with proving "minimum competence" or successfully practicing law. Some argue that even if a mandatory bar exam really is necessary, it certainly should not be administered by state trade associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members. All lawyers rely on open books. Google has democratized information. It is also a well-known dirty secret amount psychometricians that it is almost impossible to get graders to agree on subjective test scores. Study after study has established this truth that state bar trade associations and state supreme court judges refuse to acknowledge.
Most lawyers become lawyers because of a desire to provide public service in the same way that doctors desire to practice their healing profession. There is no reason or empirical evidence that recent graduates will dishonor their professional obligations. Five states have adopted diploma privileges. These states have concluded that recent law school graduates if licensed do not provide a clear and present danger.
Underlying the question of whether to provide or not provide diploma privileges is a question of trust. It is a question of full faith and credit. All lawyers are required to comply with the Rules of Professional Conduct. One of the rules is competence in the subject area or the ability to associate with an attorney who is competent in the subject.
Wisconsin is the leader of states providing diploma privileges. Wisconsin provides a bar exam waiver for all in-state law school graduates and requires all out-of-state graduates to take its entry-level bar exam. This licensing paradigm is arbitrary and capricious because it obviously has nothing to do with competence or providing public protection, because graduates from Harvard and Stanford who seek admission in Wisconsin are categorically presumed not qualified.
The "diploma privilege" boils down to full faith and credit access to justice for "Us" and no faith and credit for "Them," meaning graduates from out-of-state ABA accredited law schools. These COVID-19 law students will soon learn that full faith and credit access for "Us" and no faith and credit for "Them" is an epidemic in lawyer licensing across the United States.
The federal full faith and credit statute, 28 U.S.C. Section 1738 provides: "The records of any Court or State are admissible in evidence, and such records shall have the same full faith and credit in every court within the United States as they have by law or usage in the Courts of any such State from which they are taken." All U.S. lawyers are licensed by state supreme court orders and records. Under Section 1738, these state records are entitled to the same full faith and credit in all of the United States courts. Federal courts presented with this statute, in conformity with an old boys club culture or perhaps an irrational fear, routinely look the other way because to acknowledge it is to open up equal access to the federal courthouse for all lawyers and citizens.
In Lawyers United Inc. v United States, D.C. Court of Appeals docket 20-5269, licensed and experienced lawyers in good standing present a 21st century federal bar admission challenge. (Full disclosure: I represent the plaintiffs in the case.) Specifically, appellants challenge district court Local Rules in California and Florida that categorically grant general bar admission privileges to all lawyers licensed in California or Florida and categorically deny general bar admission privileges to all licensed and experienced lawyers in 49 states. Pro hac vice admission is also often categorically foreclosed. Appellants also challenge the District of Columbia Local Rules that sometimes grant and sometime deny general bar admission privileges to the same lawyer depending on office location.
The common theme in this case and controversy is viewpoint discrimination for and against classes of lawyers and citizens when PACER is available and Google has democratized information for everyone everywhere. Every year more than 16,000 lawyers are admitted to another state's bar on motion or by transfer of Uniform Bar Exam score. Forty-two jurisdictions have adopted admission on motion for experienced attorneys. Thirty-six jurisdiction have adopted the Uniform Bar Exam for novice lawyers. The UBE does not test state law. Every one of these 16,000 lawyers that are provided full faith and credit in the majority of states is categorically ineligible for general bar admission privileges in the four federal district courts in California and the three federal district courts in Florida. Appellants seek general admission privileges in the U.S. district courts in California and Florida that are provided to 16,000 lawyers every year in other forums that are denied to the appellants. This federal discrimination in attorney licensing reinforces state discrimination.
Discrimination by the United States is almost an oxymoron and difficult to justify in a democracy. The national rules for bar admission, Federal Rule of Appellate Procedure 46 and Supreme Court Rule 5, and acts of Congress, 5 U.S.C. Section 500(b) (practice before federal administrative agencies) do not discriminate for or against any class of lawyers or citizens. The federal courts per se and the Department of Justice does not discriminate for or against any class of lawyers or citizens based on state of licensure or principal office location.
This federal discrimination and rejection of the full faith and credit stature is an issue capable of repetition but avoiding review. The Supreme Court has ultimate supervisory responsibility but it has never granted certiorari or adjudicated the merits of this viewpoint discrimination. The government argues and the trial court has concluded that rational basis review is warranted because neither licensed lawyers nor their clients have any substantive or constitutional rights that are implicated by the Local Rules. Appellants contend the Local Rules cannot even pass rational basis review because the federal government does not have any legitimate interest in favoring one group of citizens over another in exercising fundamental rights. In United States v. Windsor, the high court held the federal government is required to accord same-sex spouse marriage licenses full faith and credit. Appellants contend this Local Rule failure to provide full faith and credit to their state's licensing smacks of invidious discrimination, identical to when the United States refused to provide full faith and credit to same-sex marriage.