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My Comments on Alternative Pathways to Bar Admission in Oregon

Oct 02, 2021

In 2020, the Oregon Supreme Court granted emergency diploma privilege to recent graduates of Oregon Law Schools. Meaning, in lay terms, that anyone who met the stated graduation criteria became eligible to join the Oregon State Bar as full members without having to sit for a bar exam.

Similar efforts were adopted all over the country, with the Abolish the Bar Exam movement having a significant moment. Indeed, opinions from the Wall Street Journal, The Washington Post, and the San Diego Union Tribune all calling for the complete elimination of a tool "stained with inequality and racism" that results in "a crime against society."

Later in 2020, the Chief Justice of Oregon, Martha L. Walters, convened a task force on alternative pathways to admission to the Oregon State Bar. The task force consisted of members of Oregon's Board of Bar Examiners (the BBX), and other representatives of the Bar, the Courts, the Governor's Office, and the Legislature (full roster here).

This summer, the task force released its recommendations, including endorsing two pathways for bar membership without taking a bar exam: an Oregon Experiential Pathway whereby 3rd year law students would complete a residency-style set of activities to prepare them for law practice, and a Supervised Practice Pathway, whereby law school graduates could gain bar membership by apprenticing for 1000-1500 hours under the supervision of an experienced lawyer.

Below are my public comments in favor of the recommendations of the task force.

I am especially passionate around the first of my two complaints below. The legal profession rightly places a significant emphasis on "consumer protection" or "public protection" as part of its charge, but has largely done so without considering the detrimental impacts this emphasis has had on access to justice. I'd argue (as others have) that by over-amping on "protection," we've done a huge and demonstrable disservice to accessibility. What good are the highest-competence legal services if only a few members of society can meaningfully access them?

I urge you to read my comments and share your thoughts. If you wish to proffer your own comments to the Oregon Supreme Court, you may do so here.

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Dear Chief Justice Walters and Associate Justices,

I write in my personal capacity to endorse the recommendations of the Alternatives to the Bar Exam Task Force. The recommended pathways are thoroughly researched and well-considered starting points for evaluating alternatives to the antiquated and inequitable bar exam.

I have only two complaints with respect to the report.

(1) One of the two areas of consideration of the Task Force was “Consumer Protection.”  Indeed, this has been a major, if incomplete, driver of decision-making around Bar admissions for perhaps as long as there has been an admissions process.

By relying too heavily on “consumer protection,” however, the Bar has inadvertently but significantly contributed to the access to justice problem in Oregon today (see the Oregon State Bar Futures Task Force Report and Recommendations (2017) and the Oregon Law Foundation’s Civil Legal Needs Study (2019)).

At their core, the concepts of consumer protection and consumer accessibility are in tension with one another. For too long, however, the Bar and the BBX have focused too heavily on protection without considering how policies that increase protection also serve to decrease accessibility.

Going forward, I urge the Court, the Bar, and the Board of Bar Examiners to include consideration of access to legal services for Oregonians alongside, and as equally important to, consideration of consumer protection.

(2) I was disappointed to see that there was no discussion in the report of continuing 2020-style diploma privilege as one of the alternative pathways to Bar membership. Indeed, given the considerations of the report around equity and fairness, coupled with the lack of any clear showing (other than the feelings and opinions of older lawyers) that the Bar Exam contributes in any meaningful way to improve the quality of legal series in Oregon, diploma privilege would appear to be the quickest and least burdensome pathway for achieving the goals of the Task Force.

Even so, the recommendations of the Task Force are sound and I encourage the Court to adopt them and move forward with implementation committees for each suggested pathway.

Sincerely,
John E. Grant

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