Utah Supreme Court considers waiver for 2020 Bar Examination

The COVID-19 pandemic has prompted the Utah Supreme Court to consider different rules for the 2020 Bar Examination.

The Utah Supreme Court on April 9 published a proposed Order for Temporary Amendments to the Bar Admissions Procedures During the COVID-19 Outbreak. Under the proposed Order, qualifying graduates will not be required to take the Bar Examination, but will instead be allowed to begin practicing immediately after meeting the other requirements for admission. Among other requirements, applicants must complete 360 hours of post-graduate supervised practice under the guidance of a licensed and experienced Utah attorney.

The emergency diploma privilege would only apply to students who (1) graduated between May 1, 2019 and June 30, 2020, (2) have not previously sat for the Bar, and (3) filed an application with the Utah Bar by the April 1, 2020 filing deadline. Students who do not qualify for the emergency diploma privilege, or who would prefer to earn a transferrable score, may sit for the next Bar examination. The Utah Supreme Court proposed Order would cancel the July Bar examination. The Court intends to hold a fall Bar examination if possible.

The proposed Order is the result of weeks of collaboration between the Utah Supreme Court, representatives from the Utah State Bar, practicing attorneys, University of Utah S.J. Quinney College of Law Professor Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law Professor Louisa Heiny, leaders from BYU, and academics from law schools around the country. The emergency diploma privilege recognizes the impossibility of offering a July 2020 exam, as well as the importance of putting new lawyers to work helping those most impacted by the pandemic, providing practicing lawyers help, and giving new graduates the certainty and financial stability that they and their families require.

“The proposed emergency Order was a result of vigorous and robust discussion, as well as extensive collaboration,” said Heiny.  “We’re grateful for all the thought, time, and effort that went into this proposed emergency Order, and we look forward to the public comment process.”

How to View Text of the Proposed Order and Accompanying Statement

To see the proposed Order and submit comments, click on this link:  https://www.utcourts.gov/utc/rules-comment/, then click on the Order, or simply click on the link in the description above. The order is also embedded at the bottom of this web page.

How to Submit Comments

You can comment and view the comments of others by clicking on the “CONTINUE READING” link associated with each body of rules. After clicking on the “CONTINUE READING” link, you will be asked for your name, which is required, and your email address which need not be your real address. The comment website is public. Each comment must be approved by the site administrator before it will show on the public website.  Although all comments will be considered, they will not be acknowledged with a response.

If you have any questions, please contact the committee staff person.  The list of committees and staff persons may be found at the following link: https://www.utcourts.gov/committees/.


Why did the Court propose an emergency order?

The Utah Supreme Court, like Supreme Courts around the country, recognized that the Bar cannot safely offer a July Bar examination. At the same time, it recognized the extraordinarily challenging circumstances our new graduates, practicing members of the Bar, and citizens of Utah are facing.

This proposed emergency Order is designed to provide competent, experienced new graduates with a stable path to licensure; help the practicing Bar make predictable employment decisions; and address the ever-widening access-to-justice gap in Utah. We encourage you to read the Utah Supreme Court’s Statement Accompanying Emergency Proposed Order for further explanation of the factors the Court considered.

How does this emergency order help the citizens of Utah?

Utah has long faced an access to justice problem. The need for free and lost-cost legal services is expected to balloon as the effects of COVID-19 continue to manifest.

Many of our graduates will fulfill their supervised practice hours through pro bono and low-bono work organized by the College of Law, the Utah State Bar, and firms themselves. We hope that practitioners will see the supervised practice requirement as an opportunity to expand their outreach to the citizens of Utah by harnessing the power of our competent, committed graduates.

Why can’t graduates just wait for the next Bar examination?

As of April 10, eight states or territories have cancelled the July Bar exam, and it is unclear when the exam can be offered in the future. Although some states are proposing a September exam, Utah is unlikely to be at a point in the recovery plan to safely offer a Fall exam. Examinees must study for ten-to-twelve weeks prior to the exam, and the uncertain exam date means that examinees would be unable to predict work schedules and availability. Practicing attorneys and clients are unlikely to hire someone who will need to take months off at some unknown future date.

 Further, unlike examinees in other years, our current graduates are facing unprecedented personal and financial stress. Many lack safe housing, stable internet, or even a reliable source of food. Some are in temporary housing while their spouses work on the front lines at hospitals; others face eviction due to lost jobs. Our compassionate response to these unprecedented circumstances reflects our values as a profession.

Won’t this proposed order license incompetent attorneys?

The Court was keenly aware of the need to protect the public from incompetent practitioners. The proposed Order only applies to graduates from ABA-accredited schools with first time 2019 Bar-passage rates of 86% or higher.   As a result, these graduates are coming from law schools with a demonstrated record of bar passage. Additionally, graduates will have the opportunity to prove their competency through 360 hours of supervised work.

At the University of Utah, 93.4% of our grads (all but 6) passed the Bar within two years of graduation. Some who did not pass sat in Utah, but some sat in states with higher cut scores or different Bar examinations (like California). At least one transferred the UBE score to another jurisdiction and was immediately licensed. We are confident that the University of Utah attorneys who will be licensed under the proposed Order are just as competent as those who are licensed through the traditional Bar examination.

 Everyone uses the Bar exam. Why should Utah be the first to change?

Diploma privilege was the norm in this country for generations. Wisconsin and New Hampshire currently provide diploma privilege to graduates who meet certain requirements. Wisconsin has a long track record with the privilege and boasts a qualified Bar with a grievance rate lower than Utah’s.

Like Wisconsin, Utah is uniquely situated to use emergency diploma privilege. We have a relatively small legal community, and our Bar is largely made up of graduates from highly regarded local schools.

The Bar exam is the only way to test competency.

Many judges and practitioners – and the National Conference of Bar Examiners itself – recognize that there may be a gap between the skills and knowledge required of licensed attorneys and the skills and knowledge tested on the Bar. The 360 hours of supervised practice required by the proposed emergency Order will help ensure that those licensed under the emergency diploma privilege meet the high standards of excellence we set for ourselves.

Won’t this create a group of “second class” attorneys?

Graduates licensed under the emergency diploma-plus privilege will be indistinguishable from those licensed after taking a Bar examination. Newly licensed attorneys in Utah may have sat for the UBE, transferred scores from other jurisdictions, or been admitted on motion. All will have identical Bar license numbers. Ultimately, employers and clients care about skill and outcomes.

Will this rule be permanent?

No. This is a proposed emergency order. It would apply to a limited class of graduates for a limited time.

Will Utah still accept transferred UBE scores?

Yes. Nothing in the proposed Order prevents an attorney who has a transferrable UBE score from transferring that score to Utah. Additionally, nothing in the proposed prevents an attorney licensed under this Order from later sitting for the UBE in order to get a transferrable score when the pandemic ends.

The Bar examination is a rite of passage that all graduates should experience.

Many traditions are giving way to the COVID-19 pandemic. This is a time for us to come together as a community and show our belief in our fellow Utes, our compassion for our future colleagues, and the power of a profession dedicated to helping our fellow citizens.