Law school grads could earn license through work rather than bar exam in some states

Erika Bolstad | (TNS) Stateline.org

PORTLAND, Ore. — Before Bailey McQueeny-Rose attended law school at the University of Oregon, she worked in reproductive health care, first as a medical assistant and then as a trainer, teaching others to do the same job. The work opened her eyes to how access to health care differed based on the laws in the six states where she oversaw training, and she began to consider becoming a civil rights lawyer.

She’d planned to take the bar exam after law school, but in late 2023, Oregon began offering graduates an alternative pathway to practicing law. Instead of sitting for the multiday bar exam, which most states offer twice a year, new graduates can be admitted to practice in Oregon through on-the-job training.

The graduates are required to work 675 hours under the supervision of a licensed attorney as well as submit a work portfolio for approval to Oregon’s Board of Bar Examiners. And just like anyone who takes the traditional bar exam, those approved under what’s known as a Supervised Practice Portfolio Examination, or SPPE, are required to pass an ethics test.

“The bar exam is not going to teach me how to be a civil rights lawyer,” McQueeny-Rose said. “But the SPPE pathway, working with civil rights employers, learning what the day-to-day duties and what the day-to-day job looks like, it’s a hands-on way. That’s what’s going to teach me how to be a civil rights lawyer.”

Soon, such options will be available beyond Oregon, as other states begin rethinking their reliance on the bar exam as the sole means to ensure qualified lawyers enter the profession. Already, Minnesota, Nevada, Utah and Washington are considering comparable licensure options, and California has been studying the approach. Arizona, South Dakota and Texas have expressed interest in such programs as well. And New Hampshire since 2005 has had a version of supervised practice that allows a select group of law school scholars to work in the state upon graduation.

Many states see alternative licensure as a way of directing graduates toward areas of the law with too few specialists or to places where people lack access to legal representation. Such places might include rural areas and other underserved communities.

Oregon and other states have faced challenges in meeting the demand for public defenders. Many states in the West with large rural expanses — including Arizona and Idaho — have counties with only a few lawyers. The new pathway also is expected to diversify who becomes a lawyer; law schools have long known that wealthier students are more likely to pass the bar exam, as are white graduates.

Oregon Supreme Court Chief Justice Meagan Flynn said in an interview that she’s been astounded at the various approaches emerging in other states since Oregon’s move. She serves on a national committee of lawyers and court officials who will recommend practical changes to help diversify the bar admissions process through the National Center for State Courts, an administrative organization.

“And really, no two look alike,” Flynn said. “Every state looking at this is coming up with very, very state-specific approaches.”

States administer their own bar exams and determine passing scores. Most states use the Uniform Bar Exam, and some states have their own specific tests. Critics of the bar exam say that in most states, it doesn’t assess minimum competency to practice the law, especially when it comes to skills that involve working directly with clients, such as handling negotiations or counseling people facing incarceration, divorce, bankruptcy or other stressful matters.

Multiple-choice tests fail to assess whether someone has the necessary skills to be a good lawyer, said Catherine Bramble, an associate professor at Brigham Young University Law School in Utah. And research has found that new lawyers perform better if they’ve had practice and supervision.

“We all know this intuitively,” said Bramble, who has been pushing for change in Utah. “Some things are not best assessed through a multiple-choice test. For example, the ability to fly an airplane. We would really hope a pilot has time in the cockpit under observation of an experienced flight instructor before we allow them to fly a plane.”

Real-world skills

In Utah, the state Supreme Court, which oversees licensure, is considering a supervised practice proposal that would require applicants to take a core curriculum during law school. They would be required to complete 240 hours of supervised practice, which could be paid or unpaid. Twenty of those hours would have to be client-facing work, and 50 pro bono, meaning the services are provided to clients free of charge.

Utah encourages lawyers in the state to commit to 50 hours of pro bono work each year, Bramble said, and they’ve found that those who are exposed to such service early in their careers tend to continue it. The proposal would require that prospective licensees take a six-hour well-being online module that teaches lawyers how to manage the stress of a legal career. Finally, there would be a three-hour test, which would require test-takers to write a basic legal motion using a sample law and case materials.

For Nevada, its proposed rules emphasize “the necessity of representing clients well,” said Joan Howarth, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas. There, the proposal in front of the state Supreme Court would allow law students to complete most of the requirements for licensure during law school.

The Oregon Supreme Court is considering approving a similar, third licensure path — in addition to the traditional bar exam and SPPE — that would allow students to take coursework and complete supervised practice requirements during school so that they are licensed when they graduate.

Even the national bar exam is changing: The National Conference of Bar Examiners will begin rolling out a NextGen test in select states in 2026, with a focus on more foundational lawyering skills such as client counseling and advising, dispute resolution, and client relationship and management.

Law schools for several decades have been incorporating more real-world skills into their curriculum, said Deborah Jones Merritt, professor emerita at the Ohio State University Moritz College of Law, who has studied the bar exam’s deficiencies in producing good lawyers. Merritt’s research has determined that the exam is far more challenging to pass for people of color, those with caretaking responsibilities, or those who come from low-income households.

Beginnings of change

Many states began rethinking the necessity of the bar exam in 2020 during the pandemic, when gathering hundreds of people together in a big room for an exam was a potential superspreader event for COVID-19.

In place of the test, several states and the District of Columbia issued what’s known as diploma privilege, the ability to practice without passing the bar. Utah, for example, required their graduates to fulfill a pro bono requirement first. It was an eye-opening experiment, said Bramble, in part because “nothing crazy happened.”

Then in 2021, the American Bar Association for the first time released statistics breaking down bar exam passage rates by race. White test takers were far likelier to pass the exams in 2020 than those of other races or ethnicities, according to the group. Although there are other barriers to a legal career, including law school entrance exams and the time, expense and quality of the schooling, the numbers made it clear that the bar exam itself had flaws that kept many candidates of color from becoming lawyers.

One of the biggest flaws of the bar is that it’s an expensive and time-consuming exam, said Brian Gallini, the former dean of the Willamette University College of Law in Oregon and one of the architects of the licensure push in the state. Law school graduates often pay for a law review class, which often can cost more than $1,000, to study for the test in the months following their graduation, as well as put off earning a living in their degree field until they’re licensed and can begin working as lawyers.

Those who work a job while they study are more likely to fail, but many students cannot afford not to work — they carry an average of $160,000 in student loan debt when they exit school.