by Mark W. Gifford, Wyoming State Bar Counsel
Faced with the national crisis presented by the coronavirus, courts and bar admissions officials are debating how to protect the public through lawyer licensing, while balancing the critical need for access to justice and the concerns of law graduates waiting to take a bar exam that may be delayed due to public health issues. Some commentators have argued for diploma privilege, under which new graduates would become lawyers without ever taking a bar exam at all. As a legal regulator charged with protecting the public (I serve as Bar Counsel for the Wyoming State Bar), I would strongly urge courts and administrators to reject this idea in favor of other more sensible options.
Law school diplomas represent an educational assessment, rather than a measurement intended for public protection. The former is a necessary, but not sufficient, condition of the latter. The bar exam serves a different purpose. As a high-stakes licensure exam similar to those administered in other trusted professions such as medicine, nursing, dentistry, accounting, and engineering (among others), the bar exam provides an essential tool for courts and bar admission officials to independently and objectively ensure that practitioners are proficient to provide legal services to the public. The bar exam also resolves the inherent conflict that would arise if law schools served as both educator and licensing authority. Bar passage results consistently demonstrate that a certain percentage of applicants successfully graduate from law school, yet cannot demonstrate the minimum competence necessary to practice law. To cite Wyoming as an example, the last three administrations of the Uniform Bar Exam in this state—February 2019, July 2019, and February 2020—have yielded passage rates of 50%, 73% and 59%, respectively. Similar numbers can be found in other states across the country.
Replacing the bar exam with a mere diploma requirement in the face of these statistics would abdicate the duty of courts and bar admissions officials to ensure that the public is adequately protected. Likewise, the “diploma privilege plus” option, under which graduates are supervised by practicing lawyers for a limited period of time rather than taking the bar exam represents a similar abdication, delegating the gatekeeper function to lawyers of varying experience, skill, and standards for assessing minimum competence.
Arguments favoring diploma privilege in lieu of the bar exam present a false choice between access to justice and public protection. The two are not mutually exclusive, as reflected in the recent temporary practice rules adopted by numerous state supreme courts (including Wyoming) and endorsed by the ABA. These rules allow graduates to practice under the supervision of a licensed attorney until the next bar exam is administered. This reasonable compromise appropriately balances the valid concerns of graduating law school students, the important goal of access to justice, and the imperative of public protection during these challenging times.
Mark W. Gifford is Bar Counsel for the Wyoming State Bar. He is a Wyoming native who received his Bachelor’s in accounting from the University of Wyoming in 1978 and his law degree from Stanford University in 1981. After 30 years of practice as a trial lawyer and mediator, Mark took the position of Bar Counsel on a part-time basis in 2011 and became full-time in October 2013. In addition to attorney discipline, Gifford’s responsibilities include Character and Fitness Review, Unauthorized Practice of Law, Fee Dispute Resolution and Client Protection Fund. He also serves as general counsel to the Wyoming State Bar. Gifford was instrumental in getting Wyoming’s Lawyer Assistance Program launched in 2014.