The Washington Bar Licensure Task Force recommends bar exam alternatives, more equity and clarity in character and fitness process
BY WSBA STAFF
The bar exam has been, to some extent, part of the licensing process since the earliest days of the legal profession in Washington and the United States. In early 2020, however, the Washington Supreme Court met extraordinary world circumstances with an extraordinary decision—to grant one-time diploma privilege to some bar applicants, in consideration of the dangers and challenges of administering a bar exam during a global pandemic and momentous civil unrest.
For the first time in Washington, therefore, lawyers were licensed without passing some sort of bar exam. The court received much feedback, positive and negative, and then-Chief Justice Debra Stephens recognized a ripe opportunity arising from the debate. She chartered the Washington Bar Licensure Task Force (WBLTF) by court order in November 2020. Task Force membership—co-chaired by a court justice and a law school dean—spanned a broad swath of voices, including private and public lawyers and representatives from minority and specialty bars and the National Conference of Bar Examiners. Their study brought together the most current data and research; interviews of leaders in other jurisdictions such as Oregon, which has already committed to alternative pathways to the bar exam; and testimony from scholars.
Now, almost three years later, WBLTF members have presented their recommendations to the court. There are two reports, authored by subcommittees, with one focused on alternatives to the bar exam and the other covering the character and fitness process. Here’s a summary of each:
Draft Report
Bar Exam Alternatives
Executive Summary from the report:
The best available data indicates that the bar exam disproportionately and unnecessarily blocks marginalized groups from entering the practice of law. In addition to the racism and classism written into the test itself, the time and financial costs of the test reinforce inequities in our profession. Despite these issues, data indicates that the bar exam is at best minimally effective for ensuring competent lawyers. Among the deficiencies and common complaints about the bar exam is that it bears little resemblance to actual practice and tends to simply restate the same results already provided by law school grades.
For these reasons and others, the WBLTF proposes creating additional, experiential pathways to bar licensure that protect the public by improving lawyer skills while reducing the unproductive barriers for historically marginalized groups to enter the profession. This proposal would have a substantial positive impact on the profession using the existing infrastructure in law schools and the WSBA.
Recommendations: First, the WBLTF asks the court to continue to offer the bar exam as a pathway (and likely the primary pathway) to licensure; this is predicated on working with the National Conference of Bar Examiners to address many of the identified flaws in the current Uniform Bar Exam, and WBLTF members are optimistic about the changes coming in the NextGen bar exam debuting in 2026 (see NextGen coverage on page 38.) As bar exam alternatives, the WBLTF recommends an experiential pathway for law school graduates and law school students. For the former, this would entail a six-month apprenticeship under the guidance and supervision of a qualified attorney; during that time, the graduates would be required to complete three courses of standardized APR 6 (Law Clerk) coursework. For law students, the experiential pathway would allow them to graduate practice-ready by completing 12 qualifying skills credits and 500 hours of work as a licensed legal intern; they would be required to submit a portfolio of this work to waive the bar exam. In addition, the report makes recommendations regarding APR 6 Law Clerk bar exam alternatives, reciprocity with other jurisdictions, the bar exam pass score, and alternative assessments and interventions to help ensure lawyers remain competent throughout their careers.
Draft Report
Character and Fitness
Findings from the report:
- The limited guidance, lack of transparency, and ambiguity in criteria in the character and fitness assessment may serve to hide biases, disadvantage minorities, and prevent diversity in the profession.
- The character and fitness criteria can exacerbate the harm caused by systemic injustices.
- Continued research, assessment, and reportable data is needed to fully understand and address the impact of the process.
Recommendations: In terms of the character and fitness standards, the WBLTF endorses specific APR changes to limit consideration of unlawful conduct, eliminate consideration of “neglect of financial responsibilities,” revise and define parameters pertaining to “omissions” and “candor,” revise and/or weight aggravating and mitigating factors, eliminate “sufficiency of punishment,” and lower the burden of proof. In terms of process, the WBLTF recommends implementation of a conditional admission process and expansion of the timing of the inquiry. The subcommittee asks to continue to study and discuss the character and fitness process so they can possibly expand their recommendations “to provide clarity in purpose, predictability in enforcement, and equity in application for all candidates seeking entry into the legal profession in Washington.”
Next Step: Your Feedback!
As the task force members and court decide whether and how to move forward, a significant consideration will be feedback from WSBA members and the public. The following three pieces in this magazine offer a more nuanced and personal perspective on the WBLTF’s work from the co-chairs and the WSBA’s two representatives on the task force. They ask for your careful consideration of the WBLTF’s charter, research, and draft reports; any feedback you provide will be shared with the entire task force.
Sidebar
Resources to Learn More
ONLINE > The WBLTF’s webpage contains the charter, roster, and full draft reports; it will be updated as the process continues. It is located at www.courts.wa.gov/appellate_trial_courts/SupremeCourt/?fa=supreme court.LicensureTaskForce.
VIDEO > The WBLTF’s presentation to the court in October is archived at
https://tvw.org/video/washington-state-supreme-court-bar-licensure-task-force-
2023101112/.
FEEDBACK > The WBLTF’s dedicated feedback email box is licensurepathwaysfeedback@wsba.org. It will remain open through Jan. 5, 2024, and comments and suggestions will be forwarded to the entire task force for consideration.