Washington State Supreme Court orders launch change
CONTINUING COVERAGE
Bar News coverage is continuing—future issues will address investigation and potential implementation of ongoing assessment of lawyers’ competence throughout their careers and potential changes to the character and fitness assessment for lawyer licensure. You can also visit the WSBA’s New Licensing Alternatives webpage for ongoing updates.
www.wsba.org/for-legal-professionals/join-the-legal-profession-in-wa/lawyers/pathways.
BRIEF HISTORY
Following three years of work by the court-created Washington Bar Licensure Task Force, the Washington Supreme Court entered orders on March 15: (1) adopting the NextGen Bar Exam, with first administration to be in July 2026; and (2) adopting in concept recommendations to implement a graduate apprenticeship, a law school experiential pathway, and an APR 6 apprenticeship as additional pathways to attorney licensure.
The July/August issue of Bar News focused on the NextGen Bar Exam. With a bar exam remaining as a pathway (and likely the primary pathway) to attorney licensure, this issue takes a closer look at—and answers some of the (many) questions asked about—the additional pathways to licensure.
PART 2: NEW PATHWAYS TO LICENSURE APPROVED IN CONCEPT BY WASHINGTON SUPREME COURT—NOW UNDER CONSTRUCTION
PRELIMINARY PATHWAY QUESTIONS
Q: Is Washington alone in creating alternative pathways to licensure?
A. No. Across the country, from primary schools to universities to professional-certification processes like medical licensing, compelling data is causing more and more institutions to create alternatives to high-stakes assessments, with a growing body of research that supports performance-based assessments. In the bar-exam realm, Wisconsin and New Hampshire have for years provided ways to demonstrate competency other than the bar exam. In November 2023, Oregon adopted an apprenticeship pathway for law-school graduates. High courts in many jurisdictions—including California, Minnesota, Utah, Nevada, and South Dakota—are creating and/or considering similar alternative pathways.
Q. Are we “dumbing down” lawyer admissions in Washington so everyone gets in?
A. No, the intent is to tie the process of becoming a lawyer more closely to skills and competencies. Under the new pathways, every candidate will have to pass a rigorous, skills-based demonstration of competency to earn a law license. The court was persuaded by the research evaluated by the Washington Bar Licensure Task Force (WBLTF), which stated in its report:
The best available data indicates that the bar exam disproportionately and unnecessarily blocks historically 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 historical 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 WSBA.
A Proposal for the Future of WA State Bar Admissions Updated Following Public Comment February 28, 2024 (footnotes omitted), available at https://www.courts.wa.gov/appellate_trial_courts/SupremeCourt/?fa=supremecourt.LicensureTaskForce.11 Much of the information in this article is taken from the WBLTF report cited and from the Alternative Pathways to Bar Licensure FAQ, available at http://www.wsba.org/for-legal-professionals/join-the-legal-profession-in-wa/lawyers/pathways.
Q. Who is building the new pathways?
A. The Washington Supreme Court’s March 15 order directed the WSBA to convene a Licensure Steering Committee to propose rule changes and identify next steps necessary to implement the recommendations. The Steering Committee will be composed of 18 people drawn from many of the entities and communities impacted by the new pathways to lawyer licensing. (The application period for service on the committee closed Aug. 9.) The role of the Steering Committee is to provide high-level direction and decision-making for the implementation process. For information on the makeup of the committee and its role, see www.wsba.org/Legal-community/Committees-Boards-and-Other-Groups/pathways-to-licensure-steering-committee. It is anticipated that the Steering Committee’s work will continue for at least 18 months.
THE 3 PATHWAYS
Graduate Apprenticeship
Synopsis: Law school graduates who successfully complete a six-month program consisting of practice under the guidance and supervision of a qualified attorney plus completion of standardized Admission and Practice Rule (APR) 6 (the Law Clerk Program) coursework may waive out of the bar exam.
The details: This pathway will be built on an existing foundation—the tutoring and licensing requirements already codified in APR 6 (Law Clerk Program) and APR 9 (Licensed Legal Intern Program).
APR 6 creates Washington’s Law Clerk Program, by which an individual may gain qualification to sit for the bar exam without attending law school. Applicants must (among other requirements) “be of good moral character and fitness,” be a full-time employee of an approved tutor in a “(i) law office, (ii) legal department, or (iii) court of general, limited, or appellate jurisdiction in Washington State,” and complete four years of coursework at a rate of six courses per year. Tutors must be approved by the WSBA; every tutor must be a member in good standing with no disciplinary sanctions in the last five years and must have practiced for at least 10 of the last 12 years, with at least two of those years taking place in Washington. [Note: As part of this proposal the WBLTF recommended reducing the practice requirement for tutors to 7 of the last 10 years.]
APR 9 creates Washington’s Licensed Legal Intern Program, by which an individual can be authorized to practice law in a limited and supervised capacity prior to obtaining a full license. An applicant must (among other requirements) be a law student or graduate in good standing who has completed at least two-thirds of their coursework and who has permission from the dean of their law school. Supervising attorneys must be active members in good standing who have practiced for at least three years and who have no disciplinary sanctions at all in the last three years and no suspensions or disbarments in the last 10 years.
Under this proposal law school graduates who wish to become licensed through an apprenticeship would need to meet the requirements of APR 9, and their supervising tutors would be required to meet the requirements of APR 6. This would allow graduates to gain practical skills and demonstrate knowledge through the experience of practicing for six months under the guidance and supervision of a qualified attorney. Graduates would also be required to complete six months of the standardized APR 6 coursework or three courses.
Why was it recommended? The WBLTF recommended this pathway as giving Washington more control over the admission of its lawyers, reducing the costs to admission, and creating a less-biased path to entry into the profession while simultaneously ensuring that licensed lawyers have the practical skills and training needed to practice. Acknowledging that historically the APR 6 Law Clerk Program has struggled to find tutors, the WBLTF did not believe this pathway would face the same barriers because it is a shorter program that will provide a benefit to law firms: Firms could hire recent graduates who are immediately productive, with no time off needed to study for the bar exam or await results.
Law School Experiential Pathway
Synopsis: Law students who wish to graduate practice-ready and waive out of the bar exam would be required to complete 12 qualifying skills credits and 500 hours of work as an APR 9 licensed legal intern or equivalent providing legal services to actual clients. As part of their bar application, law students would be required to submit a portfolio representing work done during their 500 hours.
The details: This experiential pathway would draw upon existing law school courses and ABA standards as well as APR 9 and similar rules to ensure that students have both training and experience in practical lawyering skills at graduation. Under the ABA’s law school accreditation standards, law schools are required to offer practical skills courses and students are required to complete at least six skills credits to graduate. Law schools offer a variety of coursework under the skills category such as mediation, pretrial advocacy, negotiations, criminal motions practice, and contract drafting. These courses have been developed and made mandatory as part of an increasing push in the legal industry to ensure that law schools are teaching not just how to think like a lawyer but how to practice like a lawyer. APR 9 allows law students to practice law under the guidance and supervision of a qualified attorney. Many other states have similar programs. In Indiana, Admission and Discipline Rule 2.1 creates the “Legal Interns” program, which lets students who have completed half of their law school coursework (including some specific classes like ethics) engage in supervised practice. Oregon’s Rule for Admission 13 creates a “Law Student Appearance Program” for students who have completed four semesters of coursework. As APR 9 says, these programs play “an important role in the development of competent lawyers and expand[] the capacity of the Bar to provide quality legal services while protecting the interests of clients and the justice system.” [Note: This pathway would require APR 9 to be amended to change the law-coursework-completion requirement from completing two-thirds of candidates’ legal education to completing one-half of their legal education.]
Why was it recommended? The WBLTF felt that encouraging further engagement in the APR 9 program serves the WSBA’s mission “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” The credit requirement of 12 qualifying skills credits will provide a substantial boost to new graduates’ practical lawyering skills, while the 500 hours of work as a licensed legal intern or equivalent providing legal services to actual clients will provide the experience necessary to be practice-ready. Law students would be required, as part of their bar application, to submit a portfolio representing work done during their 500 hours.
Q. Why 500 hours for law school apprenticeship?
A. Five hundred hours ensures that qualifying students have had practical experience above and beyond the basic activities that most law students will accomplish. Most law students will have a 2L summer job spending 10 weeks working in a legal capacity. For students who chose to register under APR 9 for that summer, those 10 weeks would constitute 400 hours. That would require students to get an additional 100 hours of experiential work during their 3L year to complete the program (about three hours of work per week).
Q. Do law schools have to provide opportunities for students to achieve the required 500 apprenticeship hours within the curriculum?
A. No. Given that most law students engage in legal work during their 2L summer, it is assumed that the majority of students who chose to pursue an experiential path will obtain most or all of the required 500 hours in externships, which can include paid summer work and work during the school year. While some law schools will likely choose to distinguish themselves by offering additional opportunities, the WBLTF’s proposal does not impose any requirements on law schools, and it is expected that different law schools will make different choices consistent with their individual academic considerations.
Q. Are law schools obligated to offer the experiential track to students?
A. No. The WBLTF proposal does not in itself mandate any action from law schools. It is assumed that law schools, especially those in Washington, will want to offer an experiential pathway to licensure to their students. However, law schools may place caps on the number of students who can participate each year based on whatever needs and criteria the individual school chooses. Students who are unable to graduate and immediately waive out of the bar will still have the opportunity to participate in a graduate apprenticeship and obtain a license through that program. For students who are not able to participate in the experiential track, law schools that wish to help will still have an opportunity to aid those students in obtaining apprenticeships in much the same way the schools aid in obtaining first jobs out of school.
APR 6 Apprenticeship
Synopsis: In order to waive out of the bar exam, APR 6 law clerks would have to complete additional standardized education materials and benchmarks (beyond the APR 6 requirements) under the guidance and supervision of their tutors.
The details: APR 6 law clerks would be required to satisfy the same 500-hour requirement of providing legal services to actual clients (which they can do while they are participating in the Law Clerk Program) as an APR 9 licensed legal intern or equivalent is required to do under the Law School Experiential Pathway.
Why was it recommended? Historically, a path to licensure through study and apprenticeship under a licensed lawyer has operated since the beginning of the legal profession without any identifiable harm to the public. The existing APR 6 program already accomplishes the goal of training individuals in the experiential side of the practice of law. In addition, APR 6 law clerks are required to complete coursework and be assessed on that coursework throughout the program; participating law clerks and tutors create their own curriculum and exams for all of the required coursework, whereas a standardized exam like the bar exam puts perceptions of APR 6 law clerks on a level playing field with law school graduates. To create an alternative to the bar exam for APR 6 law clerks, the WBLTF recommended the creation of additional standardized educational materials and benchmarks that APR 6 law clerks must complete under the guidance and supervision of their tutors to be eligible to waive the bar exam. The WBLTF further recommended that this Law Clerk Admission Coursework be developed by the WSBA, in conjunction with the Washington law schools and the Law Clerk Board, to dovetail with the requirements of the Law School Graduate Apprenticeship.
MORE ANSWERS
Q. Will there be a way to tell who became licensed via one of the new pathways versus the bar exam?
A. No. Right now, the manner in which someone becomes licensed (e.g., via passing a bar exam, by diploma privilege, or by completing the APR 6 Law Clerk Program) is confidential and not subject to disclosure; we do not anticipate a change to that when new pathways to licensure become available to applicants. Under APR 1(d)(1), “Unless expressly authorized by the Supreme Court or by the applicant, all application records, including related investigation files, documents, and proceedings for admission or for a license to practice law or for enrollment in the law clerk program are confidential and shall be privileged against disclosure, except as necessary to conduct an investigation, hearing, and appeal or review pursuant to these rules.” The WSBA’s lawyer directory available to the public lists only public information including license status, eligibility to practice, and date of admission.
Q. Will there be a difference in the cost and availability of malpractice insurance for lawyers who use a pathway other than the bar exam to demonstrate competency for licensure?
A. We do not anticipate that the admission path someone chooses will impact their ability to become insured and the cost of their malpractice insurance. According to Chris Newbold, chief operating officer and executive vice-president of ALPS, the WSBA-endorsed professional liability insurer, “ALPS does not anticipate a difference in the cost or availability of malpractice insurance for those who pursue and ultimately are licensed by alternative licensure pathways. A condition of attaining a professional liability policy as a private practitioner is to be admitted to practice in the state as set forth by licensure requirements of the Washington Supreme Court. For the foreseeable future, we do not anticipate adding a question as to how licensure was attained on a malpractice insurance application. Thus, we’d be unaware of the licensure path on any submitted application.”
Q. Do we know how the 2020 diploma privilege recipients22 In June 2020, in response to the COVID-19 pandemic, the Washington Supreme Court granted “diploma privilege” (licensure without taking/passing the bar exam) to most applicants for the summer 2020 bar examination. are faring, where they are employed, and how many grievances have been filed against them (if any)?
A. The WSBA plans on surveying diploma privilege recipients regarding their experience in seeking employment and their current employment and will report out results in a future issue of Bar News. Information regarding grievances filed against lawyers is confidential.
Q. Will there be incentives for more experienced lawyers to serve as supervisors/tutors?
A. Tutors in the APR 6 Law Clerk Program are eligible to earn CLE credit for the time spent providing personal supervision. This option will likely be explored for supervisors in the new pathways.
NOTES
1. Much of the information in this article is taken from the WBLTF report cited and from the Alternative Pathways to Bar Licensure FAQ, available at www.wsba.org/for-legal-professionals/join-the-legal-profession-in-wa/lawyers/pathways.
2. In June 2020, in response to the COVID-19 pandemic, the Washington Supreme Court granted “diploma privilege” (licensure without taking/passing the bar exam) to most applicants for the summer 2020 bar examination.