Lawyers For Fair Reciprocal Admission is further in the process of challenging State Supreme Court out-of-state attorney licensing rules that deny full and equal admission on motion privileges for experienced attorneys with more than three years of service and for new lawyers admitted in UBE states or non-UBE states. LU wants the same full faith and credit rights for licensed attorneys that have been provided for gays and lesbians under Obergefell v. Hodges (requiring States to provide full faith and credit to gay and lesbian marriage licenses).
Indisputable substantive evidence proves that nationally respected testing experts have concluded the infamous California 100% subjective bar exam sister-state attorneys are required to hurdle, that is used to fail two out of three experienced attorneys on the July exam, is less reliable than flipping a coin. This licensing test fails national testing Standards. It has a standard error of measurement greater than fifty percent. It is virtually identical to requiring Blacks to take a literacy test or pay a poll tax to vote. This test makes a mockery of the First Amendment freedoms to speech, association with counsel, and to petition the government for the redress of grievances.
Diploma Privileges and Full Faith and Credit in COVID-19
The times can blind us to certain truths that later generations can see that laws once thought necessary and proper serve only to oppress. COVID-19 has led to the most severe economic downturn in our nation’s history since the Great Depression concurrent with a readily observable justice gap of epidemic proportion.
Recent law school graduates from all walks of life confronting COVID-19 have rightly complained about suffering more than their fair share of abuse. They have spent three years studying for their career, incurring law school fees generally in excess of $50,000 per year, and preparing to take the bar exam in a convention hall with thousands of their colleagues to assure a fair and equal testing process. Their expectations have been blocked through no fault of their own. Fear for public health and safety has caused many states to postpone the exam and substitute a never-before-tried online exam. For a test that applicants have poured their lives and neuroses into for months, having faith in the sanctity of the test is as important as the test itself. Many applicants of color have been handicapped with fundamental defects in facial recognition software. The exam, including requirements for mock exams, more than ever is one based on privilege and ready access to laptops with cameras and microphones. Some software companies in the testing business have refused to participate averring the technology is not sufficiently developed.
Moreover, the National Conference of Bar Examiners has made clear that a reduced-question, remote bar exam cannot reliably measure minimum competency due to the lack of psychometric research: “Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling.”
The United for Diploma Privilege organization has argued that all states should temporarily adopt the “diploma privilege” and waive the bar exam. Law professors and students argue that bar applicants are being forced to either risk their lives or to use untested software that has lots of problems to take an exam that does nothing to assess their ability to practice law. Many legal experts argue that passing a bar exam has nothing what-so-ever to do with proving “minimum competence” or successfully practicing law. Some argue that even if a mandatory bar exam really is necessary, it certainly should not be administered by state trade associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members. All lawyers rely on open books. Google has democratized information. It is also a well-known dirty secret amount psychometricians that it is almost impossible to get graders to agree on subjective test scores. Study after study has established this truth that state bar trade associations and state supreme court judges refuse to acknowledge.
Most lawyers become lawyers because of a desire to provide public service in the same way that doctors desire to practice their healing profession. There is no reason or empirical evidence that recent graduates will dishonor their professional obligations. Five states have adopted diploma privileges. These states have concluded that recent law school graduates if licensed do not provide a clear and present danger.
Underlying the question of whether to provide or not provide diploma privileges is a question of trust. It is a question of full faith and credit. All lawyers are required to comply with the Rules of Professional Conduct. One of the rules is competence in the subject area or the ability to associate with an attorney who is competent in the subject.
Wisconsin is the leader of states providing diploma privileges. Wisconsin provides a bar exam waiver for all in-state law school graduates and requires all out-of-state graduates to take its entry-level bar exam. This licensing paradigm is arbitrary and capricious because it obviously has nothing to do with competence or providing public protection because graduates from Harvard and Stanford who seek admission in Wisconsin are categorically presumed not qualified.
The “diploma privilege” boils down to full faith and credit access to justice for “Us” and no faith and credit for “Them,” meaning graduates from out-of-state ABA accredited law schools. These COVID-19 law students will soon learn that full faith and credit access for “Us” and no faith and credit for “Them” is an epidemic in lawyer licensing across the United States.
The federal full faith and credit statute, 28 U.S.C. Section 1738 provides: “The records of any Court or State are admissible in evidence, and such records shall have the same full faith and credit in every court within the United States as they have by law or usage in the Courts of any such State from which they are taken.” All U.S. lawyers are licensed by state supreme court orders and records. Under Section 1738, these state records are entitled to the same full faith and credit in all of the United States Courts. Federal courts presented with this statute, in conformity with an old boys club culture or perhaps an irrational fear, routinely look the other way because to acknowledge it is to open up equal access to the federal courthouse for all lawyers and citizens.