My letter to the Chief Justice of Oregon in support of granting Diploma Privilege to 2020 Law Graduates.
Chief Justice Walters:
I write in support of the Oregon Law School Deans’ letter requesting that the Court grant “Diploma Privilege” to permit recent law school graduates to begin legal practice without having to take the Bar Exam. I agree with the Deans’ analysis and, because you know I like to look at data, I want to add information regarding the effect of dwindling numbers of lawyers on Oregon’s Access to Justice crisis.
While the Bar Exam is ostensibly a tool for ensuring the quality of legal services in Oregon, its usefulness to that end is unproven by data. At the same time, we have strong evidence of the Access to Justice gap for low income Oregonians, and we know from the 2019 Civil Legal Needs Study that legal problems fall disproportionately on African American, Native American, Latinx, Asian American, and rural communities. We also have good reason to believe that the A2J gap will only grow as a result of the economic effects of the pandemic coupled with the reduced capacity of Oregon's courts to resolve disputes.
We also already have a flat-to-dwindling supply of lawyers in Oregon, a trend that has accelerated in 2020 and would be made worse by lower admission rates for new attorneys. That shrinking supply adds to the A2J problem by creating economic conditions that favor increased prices for legal services and a continued movement of lawyers away from the people law sector and into business law practice.
Granting Diploma Privilege to 2020 law school graduates would help ensure a strong supply of new lawyer admittees without necessarily impacting the quality of legal services in Oregon. Even without the Bar Exam, Oregon has robust programs in place to ensure that new lawyers have access to training and materials covering substantive legal knowledge in the form of CLE programs, free Bar Books and Fastcase access, and access to mentorship via the New Lawyer Mentoring Program.
As I believe you are aware, the number of active attorneys in Oregon has been falling as a percentage of the general population since 2012, the year in which the impacts of the last recession began to be fully realized in Bar membership trends. From 2008 to 2011, the Bar showed a net growth of 341 active lawyers per year. Since 2016, that growth in active lawyers has been just 3 active lawyers per year (effectively flat), with a decrease of 67 active lawyers so far in 2020. There are fewer active attorneys in Oregon today than there were in 2018.
During that same 2016-2020 period, the state of Oregon has added over 211,000 people to its total population. Using the common metric of lawyers per 10,000 residents, Oregon has gone from 35.5 lawyers/10,000 in 2016 to just 33.9 lawyers/10,000 in 2020, a 4.5% decrease.
Some might argue that such a decrease is good for the legal services market in Oregon, at least for its remaining suppliers. Reduced supply amid growing demand creates conditions for raising fees and moving practices up market. While we don't have fee data since 2017, the Average hourly fee charged by Oregon attorneys grew by 15.3% from 2012 to 2017 to an average (mean) of $286/hour. This during a period when the supply of lawyers was growing.
What might be good for the legal services market is, however, bad for low- and moderate-income Oregonians. As you are well aware, the Access to Justice gap continues to grow in Oregon. And, as shown by the 2019 Civil Legal Needs Study, the legal services gap is approximately twice as large among African American, Native American, Latinx, Asian American, and rural communities.
Fewer lawyers in Oregon can only worsen the Access to Justice gap, especially as more attorneys opt to practice in the Business Law sector vs. the People Law sector. (See https://www.legalevolution.org/2017/11/decline-peoplelaw-sector-037/). And the age demographics of the Bar indicate that we will continue to see lawyers retiring from active practice faster than we can replace them under the current paradigm.
As you are aware, the Oregon State Bar has a recently updated mission, one that has been approved by all three branches of the Oregon government:
"The mission of the Oregon State Bar is to serve justice and the public interest by promoting respect for the rule of law, by improving the quality of legal services, and by increasing access to justice."
Whereas previous versions of the Mission left open the possibility that the bar also had a role in looking out for the interests of lawyers, the modernized Mission makes it clear that the purpose of the Bar begins and ends with public service. Note also that the mission is to serve "the public interest," not merely to protect the public. While public protection is certainly a component of the public interest, we must balance other factors as well. Specifically, we must consider respect for the rule of law, the quality of legal services, and increasing access to justice.
Conceptually, the concepts of "protection" and "accessibility" are opposite ends of the same spectrum. Without careful and intentional design, measures that improve protection will necessarily serve to diminish accessibility.
The Bar Exam is ostensibly a tool for ensuring public protection, i.e. one that is meant to improve the quality of legal services consistent with the Bar's Mission. The exam;s primary function is as a measure of an applicant's knowledge of substantive law across a broad array of legal topics. There is little direct evidence, however, that the Bar Exam is a necessary or effective tool for improving the quality of legal services. Indeed, reporting from both the Oregon State Bar's Office of Disciplinary Counsel and the Professional Liability Fund indicate that lack of knowledge of substantive law is not a significant problem in Oregon.
The Office of Disciplinary Counsel's 2018 annual report (the most recent available) shows that the vast majority of misconduct cases involve financial and trust accounting claims, inadequate client communication, neglect of legal matters, attorney dishonesty or misrepresentation, or conflicts of interest. Attorney incompetence (which includes substantive law shortcomings) is present in only 11% of claims.
The PLF does not break down reasons for claims in its annual report, however a 2015 ABA study of legal malpractice claims similarly found that only 11.3% of claims nationally were due to "failure to know/apply the law." Note also that the Bar Exam is far from the only tool available to ensure the quality of legal services in Oregon:
While one could argue that the Bar Exam is one of the reasons that substantive legal knowledge is not a major problem in Oregon, there is no direct data to support such a contention. In Wisconsin and New Hampshire, two states that already have Diploma Privilege, there is no data showing different levels of competence among lawyers who exercised the privilege vs. those who passed a Bar exam.
If the Bar Exam's usefulness with respect to the quality of legal services in Oregon is unproven, we have definitive evidence of the scope and sweep of the Access to Justice gap in Oregon. Comparing the 2019 and 2000 Civil Legal Needs studies, we know that the gap has grown over the last 18 years despite all of the coordinated efforts to shrink it. Given the economic impacts of the COVID-19 pandemic coupled with the Oregon Courts' reduced capacity for resolving claims, it is safe to assume that Oregonians' need for legal services will only grow.
In a recent academic paper, The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action, 11 law professors make a compelling argument that Diploma Privilege is a reasonable and necessary measure to ensure a stable supply of legal services providers during the COVID-19 crisis without representing a substantial risk to the quality of legal services.
For the reasons above, I urge the Supreme Court to grant the Law School Deans' request to waive the Bar Exam requirement for 2020 graduates of accredited law schools. Such action is necessary to further the Bar's Mission to Improve Access to Justice for Oregonians and, due to the myriad programs available to Bar members, should not have a negative impact on the quality of legal services in Oregon.
Thank you for your attention and consideration.
n.b. Although I am a member of the Bar's Board of Governors, I write today in my personal capacity and do not speak here for the BOG.
Update: The Oregon Supreme Court adopted several changes to 2020 Bar membership, including dropping the cut score for the July exam to 266 (from 274), adding an October (non-UBE) online exam option, and granting Diploma Privilege to 2020 Graduates of Oregon law schools and to graduates from ABA-Accredited law schools with a 1st time bar passage rate of 86% or higher. For full details see the Oregon State Bar Admissions Page.