The new apprenticeships

Several American states are rewriting the rules of lawyer licensure and bringing the US into line with a key element of lawyer formation worldwide: supervised practice.

Image by Midjourney

Change comes so gradually and fitfully to the legal sector that when something truly revolutionary happens — an actual turning point with an identifiable real-world impact — we have to mark the occasion. One such revolution broke out in the United States last week, opening up fantastic new possibilities for Americans who want to become lawyers.

The Oregon Supreme Court approved a new licensure program that does not require passage of a traditional written bar exam. After graduating from law school, aspiring Oregon lawyers can complete 675 hours of paid legal work under the supervision of an experienced attorney, assembling a portfolio of legal work to be assessed by bar admission officials. Candidates must submit eight samples of legal writing, take the lead in at least two initial client interviews or client counseling sessions, and oversee two negotiations, among other requirements.

Oregon’s top court considered a second potential new pathway, one that involves a rigorous experiential curriculum in the second and third years of law school, also followed by submission of a portfolio of work. In contrast to the first program, in which the supervised practice takes place after graduation from law school, this program’s practical experience and exposure would occur before graduation. The Oregon Supreme Court wasn’t ready to green-light the pre-graduation pathway, but by approving the post-graduation one, it marked the start of a new era in American lawyer licensure. (I wrote at more length about these new pathways last year.)

With a few exceptions, the only way into the legal profession in the US has been through passage of a written test of legal knowledge, either the Uniform Bar Examination or a local variant. These tests are notorious for several reasons, including the marked racial differences in pass rates and the heavy financial costs of preparing to pass the exam (and the socio-economic barriers they create).

The biggest problem with the bar exam, though, is that’s just a test of memorization and recall of legal knowledge that disregards the everyday skills required for competence to practise law (the Next Generation Bar Exam from the NCBE plans to add questions on practice skills). Many countries require candidates to complete some form of hands-on supervised practice before a law license can be granted; with Oregon’s decision, the US is finally about to join their ranks. As someone who consults on and is deeply concerned with lawyer formation, licensure, and competence, this is a breakthrough moment.

But here’s the really great thing: Oregon isn’t alone. It’s just the first state to finish a race that many other states are running and some are close to completing. I received updates on many of these efforts at last week’s LicensureCon, a lawyer licensure summit hosted by the Institute for the Advancement of the American Legal System (IAALS) attended by representatives of several jurisdictions that are pushing to open new professional entry pathways. Here’s the latest:

• Utah: Just a few weeks ago, the Utah Bar Admissions Working Group released its final report recommending the adoption of a new licensure pathway, inspired by IAALS’s Building a Better Bar: The 12 Building Blocks of Minimum Competence project. Under this pathway, aspiring Utah lawyers could bypass the bar exam by completing a selection of 13 law school courses from a pre-set group of categories, passing a practical skills and professional responsibilities test, performing 240 hours of post-graduation supervised practice in a number of specified areas, and completing several hours of well-being and self-directed learning training, among other requirements.

• Washington: The Washington Bar Licensure Task Force’s Proposal for the Future of State Bar Admissions, considered by the state Supreme Court last month, proposed two experiential pathways to licensure that would improve lawyer skills while reducing the barriers to entry for historically marginalized groups. One new route, the Law School Experiential Pathway, would require candidates to complete 12 qualifying skills credits and 500 hours of supervised practice, along with a portfolio of completed work in these areas. Graduate Apprenticeships would see candidates complete six months of post-graduate supervised practice and six months of required coursework.

• Minnesota: This past June, the Minnesota Board of Law Examiners issued a Comprehensive Competency Study that recommended the development of a pre-graduation curricular pathway to practice. The Board also considered, but ultimately chose not to recommend yet, a post-graduation pathway that involved supervised practice by an experienced lawyer, given concerns about resources for implementation. As with some other states, the Board also recommended adoption of the NCBE’s Next Generation Bar Exam, though with some reservations. Importantly, the Board’s report noted that the recommended pathway was “as good as or better than the current testing regime” (my emphasis).

• Nevada: This past February, the Nevada Supreme Court’s Commission to Study the Administration of the Bar Examination and Licensing of Attorneys recommended a three-part approach to licensing in Nevada: a foundational subject exam similar to the MBE; successful completion of a one-day Nevada Performance Exam that tests basic lawyering abilities; and a term of supervised practice. In April, the court created two task forces to make implementation recommendations on law school certification of the foundational subjects and the supervised practice components, with a reporting deadline of next April.

• California: The California State Bar’s Blue-Ribbon Commission on the Future of the Bar Exam deadlocked earlier this year on the issue of whether to recommend non-exam pathways into the legal profession. Nevertheless, the State Bar’s Board of Trustees voted unanimously to explore a Portfolio Bar Exam whereby law graduates who’ve completed prescribed law school courses would receive provisional licenses and work under the supervision of an experienced attorney for four to six months while assembling a portfolio showing their competence to practise law. A public comment period ended on October 25 and a decision could be forthcoming very soon.

• Massachusetts: A Committee on Bar Admission of the Massachusetts Supreme Court created subcommittees in 2021 that explored both pre- and post-graduation non-exam licensure pathways. This past May, the state Supreme Court endorsed the pre-graduation pathway, which focused on curricular and clinical work in law school, but declined to further pursue the post-graduation pathway of supervised practice with an experienced lawyer, citing concerns about the availability of supervising lawyers and the potential administrative burdens of this approach.

• South Dakota: In November 2022, the State Supreme Court appointed a Committee to Assess the Bar Admissions Process, with a mandate to establish the requirements to assess professional competency to practise and develop a strategic plan to support efforts to recruit and retain legal talent in South Dakota. It seemed likely that the committee, which should report very soon, would recommend a pilot program for a limited number of applicants to obtain admission through supervised practice and assessment of a portfolio of their work, an option likely limited to applicants entering public service or rural practice.

Other states are at various stages of developing similar efforts, including Colorado, New York, and Delaware. (New Hampshire’s Daniel Webster Scholar Honors Program at the Franklin Pierce School of Law was the original trailblazer for non-exam pathways into American bars.)

This is already a long post, so let me close with some brief observations.

1. When describing these initiatives, I’ve deliberately omitted a word that comes up all the time in this area: “alternative” pathways. I don’t like calling them “alternatives” because that gives the traditional bar exam too much status as the incumbent, “proper” way to license lawyers. As the Minnesota report points out, and as common sense would tell you, months of supervised work as a trainee lawyer is obviously a better preparation for practice than passing a written exam that simply retests what the applicant learned in law school.

2. I’ve also been careful to describe the two main pathway types as “pre-graduation” and “post-graduation.” A number of states refer to these as “curricular” and “supervised practice” routes; but the reality is that both these pathways involve carrying out client-facing legal work under the oversight of experienced lawyers — the only difference is whether the activity takes place during or after law school. The key distinction between the bar exam and these new licensure channels is that the candidate is demonstrating their competence to practise law.

3. Here in Canada, as I’m sure you know, a period of supervised practice has been a requirement for licensure for nearly a century. I was surprised to hear at the conference, however, that some US states considering the post-graduation pathways don’t want to invoke the Canadian example because of reports from two provinces detailing inadequate supervision, harassment and exploitation of some candidates by their supervising lawyers. All I can say to these states is that if you think this kind of thing only happens in Canadian law firms, talk to your own 1Ls and summer students and they will set you straight in a hurry.

4. This reluctance to study the Canadian example (or similar trainee requirements in many other countries) is particularly unfortunate, because I would very much like my American friends to learn from Canada’s experiences and missteps before heading down the supervised-practice path. There’s no question in my mind that experiential licensing programs are vastly superior to written tests, but the supervision must be carefully planned and closely monitored. As I said to my fellow LicensureCon attendees last week, this wheel does not need to be reinvented. Come ask us about our extensive wheel modifications.

I’ll update this article with news about developments in these and other states in the coming weeks and months. But the point I want you to take away is that Oregon’s landmark decision, and the flotilla of states poised to follow it, have changed the game permanently. Supervised experience as a trainee lawyer that demonstrates competence in a range of practical skills will be enough, in addition to a law degree, to obtain a law license in the United States. Over time, this change will produce growing waves of American lawyers better able to serve clients and offer services competently, ethically, and sustainably from Day One of their careers.

This is a huge win. I hope your jurisdiction is one of those leading this charge forward. And if not, all you have to do is point your own state’s licensing authorities in this direction and tell them: That’s the future of lawyer licensing.