A better pathway to lawyer licensing

No law degree; a single knowledge exam; training in legal, business and professional skills; and a term of supervised practice. This is how we do it.

Previously at my Law21 blog, I provided a pretty comprehensive takedown of the law degree requirement for lawyer licensing. Of course, it’s easy to criticize legal education — fun, too — but look, most people in the legal profession already know all the problems with the law degree, and complaining about it is kind of a vacuous pastime. What I’m really interested in here is a bigger and more important question: How does — how should — someone become a lawyer?

The law degree requirement, whatever its merits and demerits, is only part of our traditional answer to that question — an answer that also involves written licensing examinations and, in countries like Canada and England, a period of supervised practice. But it involves hardly anything else. Compared to the licensing process for other professions like medicine and engineering, lawyer licensing is embarrassingly abstract and simplistic.

Part of the problem, I think, is that we’ve framed law licensure as a kind of heroic quest: “Carry out these tasks, and we shall reward you with a license to practise law.” Regulators examine the candidate’s credentials — the degree, the bar exam passage, etc. — but they don’t usually look up from those credentials to assess the flesh-and-blood candidate and their individual competence. How do we know this person is ready to be a lawyer? Because they completed all our requirements. That’s generally as far as our inquiry extends.

I don’t think that’s good enough. I think that the privileges we’ve been granted as lawyers, the public whose interests we serve, and the rule of law we defend, all require more of us than that. And because I don’t like criticizing something without suggesting a better alternative, what I’ve got for you today is the outlined sketch of a better and more defensible lawyer licensing system. Strap in.👇

Let’s start with a first principle: We should only give a law license to someone who’s proven they’re competent to have one. If that’s correct, then we need to start by defining, as clearly as we can, what actually constitutes the “competence” of a lawyer at the point of licensure.

Professional competence, in general, can be regarded as the demonstrated possession of the knowledge, skills, and attributes necessary to capably carry out the functions and responsibilities of the professional. For new lawyers, those qualities include:

1. Possession of essential conceptual legal skills (e.g., legal reasoning, critical analysis, statutory interpretation, pattern recognition, issue spotting, “thinking like a lawyer”);

2. Knowledge of foundational areas of law (e.g., jurisprudence, legal system structures and procedures, contract law, constitutional law, criminal law, property law, tort law);

3. Understanding of fundamental elements of professional responsibility (e.g., professional integrity, adherence to the rule of law, fealty to the core duties of legal ethics codes);

4. Deployment of essential legal practice skills (e.g., gather relevant facts, conduct research, draft legal documents, negotiate, advocate, advise, solve problems, exercise judgment); and

5. Deployment of essential professional skills (e.g., organization, management, communication, relationship-building, client service, empathy, financial literacy, cultural fluency).

If a candidate for licensure can demonstrate to a bar admission authority that they meet these requirements to an entry-level standard — a demonstration that I think should include a period of supervised practice serving real clients — then the candidate should be licensed, regardless of the credentials they have or haven’t collected along the way. Licensure should be about what you can do now, not what you’ve done on the way here.

I should note that the foregoing list wasn’t just pulled from a hat. I studied the elements of competence for new lawyers while preparing a report on lawyer competence and licensure that I submitted to (and that was accepted by) the Law Society of British Columbia last year. (If the whole 80-page report looks daunting, here’s a summary.)

In turn, one of my primary sources for that report was the Solicitors Regulation Authority (SRA) of England & Wales, which developed a competence profile for solicitors and paired it with a threshold standard that sets out the degree of proficiency in the individual competencies it demands of new practitioners. (Along with eliminating the law degree requirement for licensure!)

So that’s how we could set a standard of competence. What about implementation — the logistics of ascertaining that a candidate meets those standards? My suggested new licensing pathway for aspiring lawyers would look like this:

1. Pass a Legal Knowledge Examination that assesses applicants against the entry-point knowledge in the competence framework (an exam such as the SRA’s SQE1). This would effectively replace the law degree and upgrade the bar exam. (More on the pitfalls of licensing exams below.)

2. Complete a Professional Responsibility Program that teaches and assesses the candidate’s understanding of and ability to employ professional responsibility and awareness (see my LSBC report, pp. 45-54). This would replace and upgrade the MPRE in the US and bar admission course ethics training in Canada.

3. Complete a Law Practice and Client Service Program that teaches and assesses the ability to run a law business and serve clients (such as Canada’s Law Practice Program or Practice Readiness Education Program). This could feature a combination of online instruction, in-person activities, and simulated practice.

4. Complete a Term of Supervised Practice that provides “normative, formative, and restorative oversight” (from my 2020 report on lawyer competence to the Law Society of Alberta, pp. 44-45), based on the articling system in Canada or on Oregon’s proposed alternative licensure pathway.

This would not be a perfect system, and I hope to address some of its drawbacks in future articles. My main problem with it is that it retains, at Step 1, a written examination of legal knowledge. We already have those, and they’re a mess.

Written bar exams were first introduced in part to raise barriers against aspiring lawyers from marginalized racial groups; they continue to disproportionately fail candidates from those groups; and their staggeringly high and growing overall failure rates suggest that what they’re really protecting isn’t the public interest so much as the interests of current practitioners.

Given all that, why would we want to keep a knowledge exam as part of a reformed licensing process? Because we still need some way for licensure candidates to show the regulatory authority they possess core competence in legal knowledge. (I’m leaving a little escape hatch here in case Large Language Models actually hit their full potential in law, which really would change everything.)

It’s no answer to simply keep on accepting the law degree as “proof of competence.” Even if a school’s curriculum precisely taught and tested against the regulatory standard, law schools also test knowledge with written exams numerous times, multiplying the systemic problems. That written licensing exams seem unavoidable isn’t a good enough answer to the fact that they also exacerbate inequality.

The best I can say here is that my solution would reduce the number of written knowledge exams in the lawyer formation process from potentially more than a dozen to just one, and would provide the regulator with the urgent mandate to remove systemic racial bias from this single licensure exam. (Ensuring that it meets the Standards for Educational and Psychological Testing would be an essential first step.) In all events, I eagerly welcome alternative suggestions in the comments below.

I think this revised licensure system would be more streamlined, affordable, and competence-assuring than any system now in use in North America. And I’ve only scratched the surface of the possibilities it presents — I have a lengthy proposal on “non-practicing lawyer” licenses that I’ll save for another day, for example.

I know this proposed system isn’t perfect. It might not even be that great. But I absolutely think it’s better than what we’ve got now. And that’s mostly what I wanted to do here: Demonstrate that a rational, defensible system for licensing new lawyers — one that doesn’t come with a six-figure, seven-year, socio-economically exclusionary price tag — is not just possible, but practically attainable.

Let me know your thoughts on this proposal. But more importantly, please open your mind to the possibilities of what we could achieve in this profession — and what we could achieve for all the people we want to help — if we were willing to let go of our assumptions about how people become good lawyers. I promise you, making that leap of faith and imagination will be the hardest part. Everything else is just hard work and good will.