Law school graduates will soon be able to practice law in Oregon without passing the bar exam, the Oregon Supreme Court decided Tuesday.
The ruling comes at a time when questions about the equity and effectiveness of the bar exam and other standardized tests—and whether they are accurate measurements of ability and learning—are increasingly prominent in the discourse around higher ed.
Under the plan, which goes into effect in May 2024, anyone with a degree from a law school accredited by the American Bar Association, including those outside Oregon, will be able to get licensed to practice law under the new Supervised Practice Pathway program. Instead of taking the bar exam, law school graduates can spend 675 hours working with a licensed Oregon attorney and produce a portfolio of their work for evaluation by the Oregon State Board of Bar Examiners.
A second proposed pathway, which would require Oregon law school students to complete a specified curriculum and a capstone project, is still under review.
“The goal was to develop a licensure pathway that was as, if not more, rigorous than the current bar exam and prioritize equity in the process. Those twin pillars have always been the guideposts for this effort,” said Brian Gallini, dean of the Willamette University College of Law in Salem, Ore., and a member of the state Licensure Pathways Development Committee, which developed the pathway program.
“What I hope it accomplishes is that it provides a pathway that is more directly tied to the skills expected of newly licensed lawyers that do a better job of protecting the public than a multiple-choice and essay-based exam do,” he said. “And I hope that because of the transparency in grading and requirements, it does that in a more equitable manner.”
Only two states—Wisconsin and New Hampshire—already have permanent alternative pathways to practice law, and they are different from Oregon’s new plan.
Wisconsin is the only state that still offers diploma privilege—which allows law students to practice upon graduation—though it was a more common practice until the rise of the bar exam in the mid-20th century. Under the diploma-privilege policy, a graduate of one of the state’s two law schools who completes a specified curriculum with a certain grade point average and passes a character and fitness exam is granted a law license. According to Reuters, 62.9 percent of lawyers in Wisconsin used diploma privilege for admission to the bar.
Law students in the University of New Hampshire’s Daniel Webster Scholar honors program can bypass the traditional bar by completing specialized coursework and passing a two-day assessment process “consisting of interviews, testing and simulations before graduation,” according to the state judicial branch’s website.
While the bar examination has been the standard for evaluating the competency of would-be lawyers for generations, interest in alternatives has grown in recent years.
‘Somebody Had to Go First’
“This is what it was going to take to break this dam. Somebody had to go first,” Gallini said. “I don’t think the wave on this has crested, and the next couple of months may be really interesting to see how this plays out in other states.”
Oregon has been considering alternatives to the bar for more than three years, and some of that momentum gained traction during the pandemic. Several states, including Oregon, enacted emergency diploma privilege in 2020, during the public health emergency, which temporarily allowed law school graduates to skip the bar exam and still practice.
“Employers came to me and the other deans and said, ‘Oh, the sky is falling. What are we going to do without the bar exam?’” Gallini, who had been interested in alternatives to the bar long before the pandemic, recalled. “Quietly, the conversation started to change, because students were able to go to work faster.”
Those conversations led to creation of a state task force that began considering permanent alternatives to the bar exam in the fall of that year, which eventually resulted in the pathway the state Supreme Court approved Tuesday.
The program will also require participants to get paid for their 675 hours of work. That requirement addresses long-standing criticisms that the bar exam rewards students who have the time and money to devote two-plus months to full-time studying, which is what most law professors recommend is needed to pass the exam.
“It’s hard to look at a licensure landscape objectively and not conclude that it’s an exam of privilege,” Gallini said. “It leaves you feeling like there’s got to be a better way.”
The first-time pass rate for the bar exam nationally in 2021 was 85 percent for white law school graduates, compared to 61 percent and 72 percent for Black and Hispanic law school graduates, respectively, according to American Bar Association data. In 2020, 86 percent of all lawyers were white.
“In choosing to create a new pathway to practice, Oregon has taken an important step that will improve access to the legal system for countless people,” Edward Rickford, vice president of the Black Law Student Association chapter at Lewis & Clark Law School in Portland, Ore., said in an email.
“The formation of the supervised pathway will help reduce the barriers to entry for minorities hoping to enter the legal field and will also increase the options available to minorities when it comes to legal counsel,” he said. “While there is still more work to be done, the news out of Salem is very exciting, and we should all find time to celebrate this important milestone.”
Caitlin Tolleson, a third-year law student at Willamette’s law school, started celebrating when she heard the news Tuesday.
“I’m certainly planning on utilizing this opportunity,” she said. “I watched my third-year classmates go through bar prep over the summer, and it’s just miserable. Not to mention, it’s just not suitable for so many different types of learners.”
One aspect she especially likes about the program is that completing the 675 hours of work postgraduation—up to 100 hours of supervised practice completed during law school can be applied to the requirement—would take the same amount of time as studying for and waiting for the results of the bar exam.
“With those hours, you’re getting hands-on experience that you wouldn’t have gotten, because a lot of people can’t work when they do bar prep,” she said. “You don’t have that option without this.”
The new pathway, which is open to law graduates across the country, is also a potential recruitment tool in a state that doesn’t have enough lawyers.
More than 2,000 people facing criminal charges in Oregon do not have legal representation, according to data from the Oregon Circuit Courts. Last week, a federal judge ruled that if Oregon counties can’t appoint an attorney for a criminal defendant within a week of their first court appearance, they must be released from jail, according to the Associated Press.
“For those graduates who may be thinking about a practice in the West Coast, or thinking about the financial commitment of the bar exam, or leveraging their postgraduate experience for the benefit of employment, this will truly be the nation’s only opportunity to do that,” Gallini said.
Mae Lee Browning, legislative director for the Oregon Criminal Defense Lawyers Association, said in an email that the organization “is enthusiastic about this coming at a time when we need more attorneys, especially public defenders” and hopeful that it will increase the number of public defenders in the state.
‘Not a Walk in the Park’
Keith Swisher, a professor of legal ethics at the University of Arizona, said he also expects Oregon’s move toward alternative licensure pathways to “spur thought and innovation” in other states.
Compared to the bar exam, he said, the practical education requirements of Oregon’s alternative pathway are more reflective of what an attorney actually does.
“It’s not only more applicable work, it’s a wider lens to get a view of how the person is doing before they’re licensed to practice,” Swisher said, adding that it will also make those new lawyers more prepared to interact with clients from the start of their first job.
“This is not a walk in the park to accomplish,” Swisher said of Oregon’s plan. “If another state adopted something that didn’t have any rigor to it, that would be a problem. If they were to expedite it too much, you may be giving license to someone who really doesn’t know their way around the courtroom or the boardroom and [will] stumble their way through their first client.”
Catherine Christopher, a law professor and director of bar success at Texas Tech University School of Law, said she’s “really excited to see an innovative new program” in Oregon and hopes other states will consider adopting something similar.
“There are lots of other skills that don’t necessarily require memorized information regurgitated on a timed exam that are helpful in the practice of law,” she said, noting that the bar exam doesn’t test an aspiring lawyer’s ability to interact with clients, conduct legal research or manage their caseload. “If we can find a licensure alternative other than the bar exam, then we can broaden what skills we’re assessing.”
One potential downside to bar exam alternatives such as Oregon’s is the increased administrative burden and oversight required to administer them, especially if large numbers of students want to take part in the program.
“Bar exams are easy,” Christopher said. “You have everyone come to the convention center. They write their essays. You’re all done. It’s a twice-a-year problem.”
Nonetheless, Oregon’s new pathway is just the kind of program she recommended in a recent article she wrote about modern diploma privilege for the Minnesota Law Review.
“I recommend that states and law schools partner together to figure out a list of what competencies we expect a new lawyer to have and how we can be comfortable and confident the law schools are assessing those competencies during legal education so we can license them at graduation,” she said.