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July 05, 2021


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Steven Lubet

Excellent post, Brian. Good to have you back in the Lounge.

Brian, thank you for this post, and congratulations on the excellent work of your task force! You had a lot of ground to cover and a lot of different opinions to consider in a short period of time, but the result is a landmark document that truly could change how American states consider lawyer licensing.

If you'll allow some observations from north of the border, I'd like to share with Faculty Lounge readers some of my thoughts about the report, which I thought was mostly terrific, with only a couple of areas of concern.

Among the many positive takeaways from the report:

- The US bar admission system has been stuck in a maddening dichotomous loop for decades, posing a false choice between "keep the bar exam" or "have no admission system at all." The report makes clear that the task force is not advocating to ban the bar exam (though I'd listen attentively if someone wanted to make the case for that), but is instead proposing additional means by which a bar applicant can establish their readiness to practise law. Choice is good!

- Moreover, the report notes that the three proposed methods (OEP, SPP, and bar exam) all have their strengths and drawbacks, and that some will be better suited to a particular bar applicant than others. "One size fits all" is a completely discredited notion in our customized-on-demand world; it makes no sense to require that the vast range of aspiring 21st-century lawyers of all shapes and types must fit through this one old small doorway in order to be admitted to practice.

- The report endorses and adopts the recommendations of the Building a Better Bar study by IAALS, which is excellent news. BaBB is a thoroughly researched and rigorous call to re-envision the licensing and competence assessment process for American lawyers, and it's terrific to see the IAALS's work validated by a State Bar committee so soon after it was published.

- To my mind, the most important aspect of this report is that it changes the nature of what the lawyer licensing process actually does. The law degree and the bar exam, our current requirements for bar admission, are *input* measures of competence. They don't actually measure anything; they're just convenient (albeit unfair and expensive) proxies that the profession has decided should function as stand-ins for the assurance of legal ability consumers expect new lawyers to possess. We license new lawyers this way -- but we don't *evaluate* them at all.

- The OEP and SSP are *output* measures of competence. They allow aspiring lawyers to *demonstrate* not only what they know, but also what they can do, and how they can do it. Each of these new pathways into practice includes an "Exam Alternative Portfolio" (EAP) of accomplishments that the bar applicant assembles over the course of months or years and submits for evaluation by the bar admissions board. Each candidate is personally assessed for who they are and what they can do.

- It's hard to overstate how important this change is, and how ridiculously overdue its arrival is. A lawyer does not spend her career passing courses and writing exams -- she spends it doing real work with real consequences for real clients. So why do we license people for doing things (getting a degree, getting a sufficiently high score on an exam) that *they will never do again* as professionals? And that they will never be hired and paid to do by clients?

- The OEP and SSP require the bar applicant to do supervised legal work for clients in the real world, whether in a clinical setting during law school or in a legal workplace (mostly) after graduation. Their performance during these opportunities, under the proposed new systems, would form the basis for deciding whether they should be licensed as lawyers. Just as importantly, their performance during these opportunities *prepares them* for practising law, in ways the law degree and bar exam don't and never will.

- In a world that made sense, the OEP and SSP would be the *default* methods for assessing a bar candidate's qualification for licensure. The bar exam would be regarded as an odd outlier -- why are you writing a test, when you could be out there serving clients and learning the ropes of practice? What good will the test do you, when you have to solve the problems of the client sitting across a desk from you? Hopefully, given enough time, that's exactly how the matter will be viewed, once all these options are on the table for aspiring lawyers.

- Of the two new options proposed by the task force, I much prefer the OEP, and I think students will prefer it as well, by a wide margin. They get extensive exposure in clinics to on-the-ground problems and challenges of real people, but in a safe, supervised setting, with feedback and direction from experienced legal clinicians, during their law degree. They also get to start their legal careers upon graduation (pending passage of the MPRE and the "fitness and character test," which is a whole other box of trouble), rather than having to pass yet another exam or try to find supervised work in a law firm.

- This type of model is successfully employed elsewhere. The report credits the DWS Honors program in New Hampshire, and rightly so. But two Canadian law schools (Ryerson and Lakehead) employ a highly similar Integrated Practice Curriculum that, once completed, allows graduates to skip the "articling" year. And in England, the Legal Advice Center at Nottingham Trent Law School is a "teaching law firm" that gives current students and recent grads hands-on exposure to serving low-income clients while also learning the law. This approach has been proven successful.

- When we come to the SPP, however, my concerns increase substantially. In theory, I'm fully supportive of the idea that law school graduates should complete a period of supervised practice in a legal work environment. That's how we do it in Canada, with the articling system (and its recent supplementary pathways), and that's how it's done in most of the world: America is one of very few countries that do not require supervised practice before bar admission.

- I'm also in agreement with the report's skepticism about adopting the Canadian articling system, for many of the reasons the report raises: The articling term is excessively onerous (9 to 12 months long, for no particular reason), access to articling jobs is unfairly limited, and biases in hiring are rife. To that list I would add alarming rates of discrimination and harassment experienced by articling students, and insufficiently rigorous standards for what the articling term is supposed to involve and produce. I'm in the process of trying to help reform Canada's licensing system in all respects, including articling.

- But the SPP, as framed in the report, not only fails to fix these problems, it effectively replicates them. The report recommends that SPP candidates complete 1,000 to 1,500 hours of supervised work in a law firm. These are textbook examples of arbitrary numbers, with a range so wide as to be effectively meaningless. The numbers are supported by no evidence, no studies that conclude that these are the correct number of hours to ensure sufficient practice exposure. The huge +/- delta of 500 hours -- a 33% variance -- underlines this point.

- The arbitrary and arduous nature of this requirement is illustrated at pp. 16-17 of the report, in a contrast with Utah's modified SPP, which requires "only" 360 hours. The report does not consider whether 360 hours might be a perfectly fine amount. Utah's decision to tie eligibility for its SPP to bar exam metrics is indeed bewildering. But that doesn't change the fact that 360 hours is as sensible, or as random, as 1,000-1,500 hours. There is no inquiry into *how many hours are actually needed* for an effective SPP. Studies should be made to determine how much supervised practice is enough for licensure, and the results should be used to build new systems like the SPP.

- The report also recommends that SPP candidates record these hours in six-minute increments, imitating one of the ugliest aspects of law firms' working conditions and at odds with the rise of fixed-fee retainers in law (especially for straightforward legal tasks). The six-minute requirement is motivated by a commendable desire to free SPP candidates from the dangers of being tethered to a single employer and to allow them to "get their hours" from multiple workplaces. There is merit here. But "six minutes" is a measure we should be abandoning, not embracing.

- One more point here: The report correctly characterizes the 9-12-month Canadian articling system as onerous. But at p. 21, it suggests that 1,000-1,500 hours of supervised practice for the SPP would translate to 9 to 12 months of full-time practice. It also concedes (on p. 22) that some of the work of SPP students will be unpaid or low-paid. In effect, the task force's SPP proposal basically *is* the articling system, warts and all.

- At this point, I'd be remiss if I didn't mention the Commons Law Center in Portland, Oregon, a non-profit law firm that offers sliding-scale and unbundled legal services, practical training for new lawyers, and community legal education. ( I was a little surprised the CLC didn't come up in the report, as it represents exactly the kind of hybrid training-and-practising opportunity that the SPP seems to envision. I would encourage the Board of Bar Examiners to take a close look at the CLC as a potential model for supervised practice.

- (I suppose now is a good time to disclaim that I serve in a volunteer capacity on the advisory boards of both the Commons Law Center and the IAALS's Foundations Project.)

- My concerns with the proposed mechanisms of the SPP are significant. But those mechanisms can be adjusted. I don't want these concerns to outweigh my very strong support for the *concept* of supervised practice as a means of qualifying for bar admission, which the report correctly endorses, as well as the critically important breakthrough concept of "multiple pathways to bar admission." *Multiple pathways* is the most important aspect of this report. It reflects a similar trend towards licensure diversification in Canada and Great Britain. It is, in my view, absolutely the right way forward.

- I again want to emphasize the groundbreaking nature of this report, and how it has the potential to revolutionize and reform the lawyer licensure process in the United States. I endorse most aspects of the report and I absolutely endorse the approach it takes to lawyer licensure. I sincerely hope that it receives a fair hearing and eventually the approval of the Oregon Supreme Court. The future of American lawyer licensure could begin right here.

Daniel Rodriguez

This is the text of my response to the request for comments on the Oregon Task Force recommendations and report. I preface this by saying, as I have said several times in other fora, the good work of this Task Force represents a positive step forward, a step that wouldn't have been possible without the prodigious, careful work of Dean Gallini.

July 6, 2021

To Justices of the Oregon Supreme Court and to whom it may concern: Thank you for the opportunity to comment on the OSB Task Force Report. By way of context, I am an experienced law teacher, currently the Harold Washington Professor at the Northwestern University Pritzker School of Law. I served as dean at Northwestern from 2012-18, and before that I held faculty positions at the University of Texas, the University of San Diego (where I was dean from 1998 to 2015), and UC Berkeley law schools. I have been a visiting professor at Harvard, Stanford, and Columbia. In addition to these faculty roles, I have served as president of the Ass'n of American Law Schools, the chair of the ABA Center for Innovation, and a council member of the American Law Institute. I have long been involved deeply and broadly in professional activities, including those related to licensure and legal services reform.

I very much commend the Task Force and all of those whose engagement in this important matter has brought this report and set of recommendations before the Court. These proposals represent meaningful and constructive responses to the difficulties faced by law students in the 21st century and, to use the vernacular of the report, these pathways represent real progress. Nonetheless, I write to express concern about the recommendations that limit explicitly one key pathway to students of Oregon law schools. The report is candid in expressing its view that one key benefit of the OEP is as a "durable recruiting strategy" for Oregon law schools. With respect, this should not be a goal of Oregon bar leaders -- at least not a goal that undergirds a proposal that treats students at Oregon law schools differently than students from outside the state. The balkanization of the legal profession is a serious problem, and an approach that can be perceived as protectionist, as about the welfare of Oregon law schools as an independent goal is not the right approach and, frankly, not a good look for the Oregon law schools, the Oregon bar, or the supreme court. To be sure, Wisconsin has a longstanding diploma privilege, which accords special benefits to the two law schools in the state. However, there are many (myself included) who view this scheme as of dubious constitutional validity. The dormant commerce clause and privileges & immunities clause of the U.S. Constitution prohibit regulation, not excluding professional services regulation, which discriminates against out-of-state citizens. There is a colorable claim that requiring bar aspirants who want to avail themselves of the OEP special pathway to have attended a law school in the state of Oregon represents discrimination under the rubric of these constitutional provisions and relevant doctrines. While there has not been a definitive ruling on the question whether Wisconsin's diploma privilege is unconstitutional, creating, as here with OEP, another privilege, one that creates a special benefit to Oregon law school students makes it more, rather than less likely, that some litigation will ensue.

And yet I raise a concern completely separate from constitutional law. A more sensible approach, to me, would elaborate a set of requirements to be met by a law student in any law school. They would need to complete those requirements at their law school in order to become admitted to the Oregon bar under this pathway. Most law schools may choose to leave their curriculum be, and therefore leaving their Oregon-destined students to another pathway or to a bar exam. But some law schools which have a critical mass of their students who aspire to become Oregon lawyers may take up the banner helpfully provided to them by the good work of this Task Force and adapt their curriculum to ensure, to the satisfaction of this Court, that their law students coming to Oregon will have met all the requirements necessary. In all candor, it is hard for those of us who work outside of Oregon to see the case for a special privilege for Oregon law schools other than, again, as a recruiting tool or, to put it more provocatively, if I may, as a sinecure for the three Oregon law schools competing for students with other law schools. Oregon consumers of legal services deserve capable, well-trained new lawyers, and they ought not to care whether they have been educated at Willamette, Seattle U., or UC Berkeley, so long as the important curricular requirements adumbrated in the report are met.
Therefore, while I strongly endorse the direction of the Task Force's recommendations and applaud the good work for all who have been deeply involved in this process, I respectfully urge the Court to reconsider the restrictions of the OEP pathway to graduates of Oregon law schools. The rationale for such a restriction is unjustified, is possibly unconstitutional, and is not good optics for this Court, for the Oregon bar, and for those Oregon law school leaders who have been working on this Task Force and who will be associated closely with its final product.

Daniel B. Rodriguez
Harold Washington Professor and Dean Emeritus
Northwestern Pritzker School of Law (for identification purposes only).

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