We’ve been off for a month and we come out swinging for this #Barpacolypse #Diplomaprivilege episode. Each July, thousands of law students and attorneys are required to sit for and pass the bar exam in their states if they wish to practice. The fairness, bias, and necessity of the test has been called into question in the past (Note: the exam is a relatively recent method to determine attorney competency to practice), but COVID 19 may finally force states to do away with the bar examination. The public has called administration of the test into question, due to COVID 19 health concerns, and the response from state and national bar examination boards and state courts have been a hodgepodge of confusion and guarding the status quo.
Today’s guests, Professor Cat Moon from Vanderbilt University, Brian L. Frye, Associate Professor of Law at the University of Kentucky College of Law in Lexington, and recent Georgetown Law School Graduate, Stefanie Mundhenk are digging deep to expose concerns and implications surrounding the 2020 bar exam and to examine creative approaches, such as Diploma Privilege and supervised practice, that not only will protect their health but may prove to be a better gauge of attorney competency. And if you think the bar exam is a good gauge, please see an excellent My Cousin Vinny tweet thread.
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- The Case for Replacing the Bar Exam With “Diploma Privilege”
- The Pandemic Is Proving the Bar Exam Is Unjust and Unnecessary
- Veteran State Court Judge Rips Bar Exam, Says Test ‘Does Not Function To Protect The Public’
- COVID-19 IS CREATING A STATE OF EMERGENCY FOR INCOMING PUBLIC DEFENDERS. DIPLOMA PRIVILEGE IS THE ONLY SOLUTION.
- NCBE Trashes Diploma Privilege, Sprinkles In Some Racist And Sexist Conclusions
- Ditch In-Person Bar Exams During Pandemic, ABA Says
- Rome Wasn’t Built in a Day and Online Bar Exams Can’t Be
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Marlene Gebauer: Welcome to The Geek in Review. The podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.
Greg Lambert:: And I’m Greg Lambert, so Marlene after a month of time off we are back, and I know for one, I for one was ready to get back to doing the podcasts and I think we’ve jumped in with both feet on this one.
Marlene Gebauer: Yeah, I think we did, and I agree it is really good to be back behind the microphone again.
Greg Lambert: So on today’s podcast, we have three guests who are here to talk about this gigantic mess that we call the 2020 Bar Exam.
Marlene Gebauer: Oh my gosh yes.
Greg Lambert: So Marlene you could kind of say it’s like an apocalypse, combined with the bar exam kind of a bar pocalypse.
Marlene Gebauer: I see what you did there. So, yeah, for those of you who actually haven’t heard about this, and honestly I don’t know how that’s possible. You can follow all the discussion on Twitter if you search on #barpocalypse,
Greg Lambert: You’ll just have to figure out how to spell that I actually will put a link in the show.
Marlene Gebauer: I can spell it right now. Although it will finish it for you if you put it up on Twitter, I’ll tell you that much but it’s b a r p o c a l y p s e – bar pocalypse
Greg Lambert: Barpocalypse.
Marlene Gebauer: I passed the spelling bee. Yay. We have a five-time returning champion guest, Cat Moon from Vanderbilt University. Brian L. Frye, an associate professor of law at the University of Kentucky College of Law, in Lexington. And recent Georgetown Law School graduate Stefanie Mundhenk, who is currently studying for the Kentucky bar exam and working in the local public defender’s office in Kentucky to support herself as she gets ready to take the bar.
Greg Lambert: Yeah, I wanted to warn the listeners now, because there are absolutely no defenders of the status quo and today’s episode, you’ll see that. So everyone believes that the state bar associations, the law school, the National Association of Bar Examiners, and the American Bar Association, are all fumbling the ball on the 2020 Bar Exam, and you know I have to agree with them, you know this uncertainty. So, you know, it’s, there’s so much uncertainty and there’s you know so many last-minute changes, there’s the silly formal rules that sometimes get adjusted sometimes don’t get adjusted.
Marlene Gebauer: And they’re getting adjusted on the fly and like none of these, you know, none of the Supreme Courts or the bar examiner groups like nobody’s talking to one another yet they’re all dealing with the same issue and it just that makes absolutely no sense.
Greg Lambert: Yeah, and just on top of that the bar exams that did happen last week you know there were glitches and errors, you know, some of the ways was set up was laughable. You know, and this would be laughable except for the fact that we’re talking about people that have really dedicated a, you know, at least three years of their life, and possibly hundreds of thousands of dollars into their education and they’re getting the raw end of this joke.
Marlene Gebauer: Yeah. And not to mention some of them are also, you know, exposing themselves to, you know, health issues as well. So, you know, we wanted to jump right into the discussion and wait for our Information Inspirations until the next show, and we promise it won’t take us a month to produce.
Greg Lambert: Well Brian, Cat, and Stefanie, thank you very much for taking the time to talk with us today.
Cat Moon: Hello.
Stefanie Mundhenk: Hi.
Brian L. Frye: My pleasure.
Marlene Gebauer: Well I’ll jump right in. So, one of the many challenges that the COVID crisis has caused is how or whether a bar exam can be administered. Can you tell us some of the logistical concerns that have been raised and how different states are addressing them? And I’ll just leave that open but I’ll let Brian start First,
Brian L. Frye: Let me throw that to Cat and Stefanie.
Cat Moon: And I would love to hear from Stefanie directly. But now I will offer I will offer… we’ll quit tossing a hot potato, but I will offer, I think a general kind of context setting. I think that what we’re seeing is every jurisdiction, kind of deciding what they want to do. There doesn’t seem to be a lot of coordination between and amongst, even though they all essentially you’re facing the exact same challenge so I find that quite fascinating actually.
Marlene Gebauer: I have found that interesting too. Yeah. Why wouldn’t they talk?
Greg Lambert: Huh. Have you never dealt with a bar association?
Cat Moon: You know, then we have the NCBE which is attempting I think to manage pieces and parts of it but I don’t think that’s going terribly well. And so I think my overall observation is that we have some states who forced an in-person exam when it was originally scheduled. Others who have delayed in-person, only to decide to have it virtually. And you know there’s like, probably 50 different combinations of responses. I think the unfortunate part is that I don’t think any Board of law examiner’s or state Supreme Court frankly has shown a real sense of creativity or any innovation whatsoever in trying to really tackle this meaningfully. Now we do have some states who have gone the route of deployment privilege and I think that would probably fall squarely in the category. I should back that up. I think that Washington state for example said any I believe any, any graduate from an ABA school can come and exercise diploma privilege and practice in our state. Basically waving them in this year. So to me it’s been really unfortunate, not to see any coordinated effort, not to see some collaborative effort to be creative and really problem solve. And I will say what is most stark, startling, and troubling, is that not only have these organizations, these leaders of our professionals of licensure into our profession. Not only have they not tried at all to work collaboratively with the primary stakeholder in this process, i.e. the examinees, they have in fact, I’ve observed created an atmosphere in which they seem to be. It’s like opposing counsel almost it’s like the enemy.
Marlene Gebauer: I was going to say they’re almost like an afterthought you know it’s almost like an afterthought it’s really all about the test itself.
Cat Moon: Yeah, so I think, from my perspective, I just want to say that it seems to me it is really highlighted all that is wrong and broken with the licensure system in a way that has been really really unfair and frankly painful to a lot of people who we want to need to join us in this profession. And I will stop now and pass the potato to Stefanie.
Greg Lambert: Okay. Well, Stefanie Do you feel like an afterthought in this whole process?
Stefanie Mundhenk: I wouldn’t say I feel like an afterthought so much as an adversary. I think a good example of this is, you know, my roommate is also a law school graduate who signed up to take the Kentucky Bar Exam. We wrote an op-ed sort of critiquing the Kentucky Supreme Court’s approach to the bar exam, and a sitting Kentucky Supreme Court Justice wrote a 1000 word op-ed in which he personally called us out. And, you know, sort of reason he did explain like why they made the decisions that they made but he also had many things that were factually incorrect in the explanation. And so I think that I know, even just me and my roommate personally like we feel sort of like the Bar Association is one more hurdle we have to get past rather than somebody who’s just administering a test and who wants us to succeed on this exam so that we can become competent attorneys.
Brian L. Frye: Yeah, and I think the interesting thing about what happened this year is that the COVID-19 crisis has really caused a lot of people to suddenly question the legitimacy of a process that they previously taken for granted. So obviously the current pandemic situation, makes administering a bar exam in the traditional in-person way unsafe and unwise. And what it really illuminated, I think, is the total lack of preparedness of state bars to approach, administering a bar exam and dealing with attorney admission. Any either way I mean none of them had any contingency plans available in advance, none of them were prepared to administer an online exam, and I think more tellingly none of them were prepared to defend the exam in the first place. And I think that that’s really the most interesting thing. That that’s really eliminated about the situation we find ourselves in is that the people administering the bar exams, the people we expect to justify the bar exam, as a precursor, a necessary precursor to attorney admissions, have essentially refused to defend it on the merits and are attacking the people, personally, who are questioning the wisdom of their approach, and the wisdom of the entire procedure.
Greg Lambert: The one thing that I’m seeing by looking and hearing from and reading from a number of the different states and the people that are running the bar exams within the states is the feeling I get is, “well of course we get to have a bar exam we’ve always had a bar exam I had to take the bar exam. Therefore, it doesn’t make any sense for someone not to take a bar exam.”
Brian L. Frye: Well I think it really, the entire phenomenon exposes the extent to which local or state Bar Examiners and NCBE have effectively just been, you know, resting on their laurels. And depending on the fact that no one has questioned the legitimacy or effectiveness of the bar exams. And I think the only real argument that they’ve got in favor of the bar exam is the consumer protection argument. The idea being that you know we need to ensure that attorneys, or that prospective attorneys are competent before they’re admitted to the bar. Unfortunately, to the extent that there’s data available on whether the bar exam actually tests for competence, it doesn’t look particularly good for the Bar Examiners. And to the extent there is any evidence supporting it. It’s really really limited, and generally limited to a very very small number of attorneys. But I think even more tellingly is the fact that the Bar Examiners and NCBE are so reluctant to release the data that would enable us to evaluate whether or not the exam that they’re administering is actually effective in accomplishing the goals that it’s supposed to affect, and even more tellingly, the fact that they’re not willing to release the data relating to their own evaluation of the bar exam. So we can’t even know empirically whether or not the way that they’re evaluating the bar exam is consistent with actually even testing for right answers, let alone whether the questions are asked in the first place are relevant to returning competence in the first place. So I mean, the methodology here is just so comically flawed. And as soon as you start kind of picking away and looking at what they’re actually doing. I mean just look a bunch of yo-yos.
Greg Lambert: Well Cat, what do you think over the past 12 years, you know I know hindsight is 2020. What could we have been doing to help, not be caught flat-footed when we needed to make a shift in how we present or admit people to the bar?
Cat Moon: Well, there are a number of people who’ve been studying and writing about and how we should be redesigning licensure and bringing lawyers into legal education through law school and into the practice. There have been opportunities. The challenge has been that as with pretty much everything else in the legal profession there really hasn’t been an impetus to disrupt these systems that have been in place for essentially 100 years. And so, frankly, the pandemic has forced this disruption for the bar exam and I really am skeptical that we would even be having this conversation about meaningfully examining the bar exam and redesigning it above for the pandemic. So, I don’t know that, frankly, there’s anything we could have been doing the past twelve years, that would have changed the situation we find ourselves in. I think we have a group of people who operate from a position of hubris, and I think that this process is completely opaque, lacks transparency, really at all points as Brian was talking about. And they just go forth completely unquestioned and have unfettered power. And I can tell you I remember very little about taking the bar exam in 1998, but I can tell you with confidence that I experienced, not being able to bring menstrual products in or my water bottle or any of those things, which I do not believe I experienced those things, notably that had that happened. I don’t think I would have questioned it because I was there to take a test so I could get a license to do the work that I’ve been studying for three years and had invested all this time, energy and money in. I don’t think it is at all appropriate or fair to have put some kind of onus on bar examinees going through these things, which by the way I think folks have called attention to these issues, which have led to law review articles and other things but those explorations just sit and you know gather dust on a shelf and have essentially been ignored by most folks so. But the beauty of this time is that because of the crisis in front of us, a very bright light is being shown deep inside this box, which is the land of Bar Examiners and the land of the NCBE. And I think there’s a growing chorus of voices, who are seriously challenging the relevance and adequacy. And I would urge us to look at all the work that has been done by a number of really smart people who have been thinking very creatively and very hard about these issues for many, many years. We have a lot of good ideas to pull from and I think we have this opportunity now to be very, very creative and how we approach redesigning the system, but it must start with what are we actually trying to accomplish what are our goals and objectives and I can tell you that you could ask all 50 bars, you would not get a group in agreement as to what they’re even attempting to measure, much less how they’re doing it.
Marlene Gebauer: And I’ll point out that for listeners, you know if you really want to hear a lot about the impacts or what people are thinking or new approaches. If you go to Twitter and you do #BARPOCOLYPSE, you know, you will see all of this, you will see all of the discussion and it was, it was hysterical I just saw this on Facebook yesterday that there was a reporter from the Houston Chronicle, just realized the problem with the menstrual products in Texas, and I was so tempted to just send them a note saying just look at Twitter man, because it’s all there.
Brian L. Frye: I don’t think we should place all the blame on state bar examiners and the NCBE. In my opinion, law schools the ABA and the AALS, have been essentially leaning on the bar exam, as a way of avoiding asking themselves hard questions about legal education and their responsibilities. And regulating and evaluating the quality of legal education by essentially telling themselves that they could offer whatever product they wanted to. And then at the end of the day, the State Bar Examiners would do the dirty work of evaluating who got admitted, and who didn’t. I think that’s wrong. I think that’s inappropriate. And I think it’s illustrated most strongly by the California bar right because unlike other bars, other state bars in the United States, the California bar is kind of unique in wildly accrediting its own range of state-accredited law schools that produce graduates that are also permitted to take the California bar. And if the state bar, which is also administering the State Bar Exam, doesn’t think that these law schools are producing graduates who are qualified to take the state bar. It shouldn’t be accrediting them in the first place. And that’s on the bar.
I think there are a number of things that the law schools have done over the past. What for three decades of driving costs way up, and then saying basically saying at the end of the day, you know, we’ll take your money, you can graduate, and we’ll let the bar decide whether or not you’re really good enough to practice.
Brian L. Frye: And really it shows by offering totally untransparent scholarships which are really just discounts, right, to some students, and not telling all the students what price they’re actually paying. I mean a lot if you’re running a law school you’re really running a used car lot.
Cat Moon: I don’t know if I can talk that metaphor, but I can say, I agree with Brian that I think that all the stakeholders in the system are complicit in this, and I would hope that one opportunity we can seize in this moment is thinking much more holistically, about how an individual person moves through these systems that are all interconnected and frankly all necessary and should be working together to prepare people to practice law, but absolutely at all points there is complicits.
Marlene Gebauer: Are there any analytics, around, sort of passage of the bar that suggests you know you’re going to be an adequate practitioner? And I’m not talking about the stats about you know how many times people have to take it pass, but I mean is there is there any kind of correlation between passing the bar and being, you know being a good practitioner?
Brian L. Frye: Well I mean I can say that you know, part of what this entire phenomenon has opened my eyes to is to the extent to which state bars are profoundly reluctant to engage in any meaningful regulation of attorneys once they’re admitted. So the reality is I don’t think there’s any way we really know, because at the end of the day, state bars are totally uninterested in pursuing complaints against attorneys. Especially complaints for incompetence. I mean the idea of a lawyer actually being disciplined for incompetence, I mean it’s almost impossible to achieve that, that goal. So how would we know, right? And again you know, what’s more, every attorney who is disciplined by the bar was also admitted, and none of them are being disciplined for things that the bar exam, even colorably test for. I mean you know what do people get discipline for? They get discipline for essentially breaking the law. For stealing money from their clients. For sexually harassing their clients. Although, frankly, the punishments are so pathetically low it’s embarrassing. Right. I mean the modal punishment for sexually harassing your client egregiously in Ohio, for example, is six months suspension suspended which is basically not a punishment at all right, I mean if the bars took attorney competence and attorney discipline seriously, they’d actually do some of it. I think maybe they should spend some more time focused on attorney discipline and a little less time on hazing Junior attorneys.
Stefanie Mundhenk: Well, and I also want to point out that a lot of the reasons that you can be disbarred or found to be incompetent, almost overwhelmingly has to do with character and fitness issues, it’s all issues of ethics. It’s not whether or not you’re a good contract attorney or whether you’re a good criminal defense attorney. It’s laughably difficult to win and ineffective assistance of counsel claim in criminal defense, you know. So I think even the regulation that does happen, focuses on not the actual tested portion of the bar exam that they seem to think is so important.
Greg Lambert: Stefanie we kind of are where we are right now and we’re stuck with the current situation. You have a bar exam coming up in Kentucky, in October. You graduated in May from Georgetown Law. And, you know, I’m sure, and I’ve talked with three L’s this year, they talked about “I had a plan that was laid out. I had to take student loans. Study for two and a half months leading up to the bar. I was going to take a week or two off right after graduation, go to Europe, come back for the bar”, and you know, they all had this plan, and then all of a sudden, move that up another couple of months. Which, not just the Bar, but a lot of the graduates now that have jobs, Those jobs are supposed to start in September.
Marlene Gebauer: A lot of them don’t have jobs.
Greg Lambert: Yeah, even, even if everything is good, most of them and I think my firm is probably as good as it gets right now, is we’ve pushed them back, they can start in October, right after they taken the bar, but a lot of firms now have backed that up to the first of the year. And basically waiting until the results come out. So, what are your plans and how do you disrupt those?
Yeah, I mean, for three years, I planned to take the summer off after law school, studying for the bar so that I could presumably start a job as soon as I took the bar as soon. As somebody would hire me. As soon as somebody would allow me to work. There are states like Virginia, where you cannot even begin the process of interviewing for a job until you have passed the bar, and you’ll know that you pass the bar. In Kentucky, I’m not even as bad off as some people are. I do have a job. That job has allowed me to start early, but now I’m competing with privileged students who were able to take all of this time, and the time off until October to take the bar exam, and I’m working full time in a public defender’s office right now, and I’m lucky if I get an hour prep a day because I’m just exhausted when I come home. And then financially speaking, I had expected to be able to start full time hit the ground running on August 3rd. And while I am working right now in a full-time capacity, I will be required to take unpaid leave in order to have time to study for the bar exam later on. So I mean, even just, personally speaking, I’m in thousands of dollars in credit card debt that I’d not anticipated. Just because of this delay and it’s going to accrue even more when I take that unpaid leave time. And even when I went to law school, I took a gap year beforehand and I have a non-federal loan from undergrad, and I used up my deferral period, in my gap year. So right now I have $40,000 of student loans that are coming due right now. I’ve put $1,000 on my credit card, paying off my student debt, right. And that’s gonna keep accumulating until the bar exam is over. And I’m also working at a reduced rate until I’m actually licensed. So, the hits just keep coming. You can’t win.
Greg Lambert: Yeah, well I was wondering because I’d interviewed a 3L that is coming into my firm. And he’s, he’s a former Marine, he’s got a family, two kids, and just trying to figure out, okay how do I make this up? Because I think a lot of people think, well you just go back home and live with your mom and dad they’ll take care of you. But not everybody has that privilege of going back there and so I mean these are real consequences that are happening to people that you know are very, very well planned out, and then this very unexpected thing pops up. And for the, for the bar not to be very clear on, you know, because I think there were some states where they were almost up until like the week of the bar, that you know, they were still going to have it, I think, Alabama. Did they have the bar? But like all the hotels were closed so people couldn’t even stay anywhere in Birmingham, in order to take it. I mean it’s just been crazy
Stefanie Mundhenk: Well, when they started you know some Bar Exam started saying you have to be in the state two weeks before the bar exam to quarantine. And then they ended up canceling after people had already booked hotels to stay in the state for two weeks. Which is completely ridiculous. And I mean I think that you know, I got to come to Kentucky and start my job and I have a credit card that’s not maxed out. Like I am among the lucky ones, which is really sad to say, I mean like, I come from a first-generation family who grew up beneath the poverty line, there is no safety net for me, it is just me. I remember calling my parents, my first week of college because I ran out of money and I didn’t have enough food to eat and I was hungry. And they couldn’t help me and we cried on the phone together right we got to my butt if I, if my job decides to let me go because they want to let us attorney and said, I’m SOL.
Brian L. Frye: I mean, let’s be clear here, right, the bar exam is just one more regulatory tax on the students. That’s all it is. Right. Basically, every law student who graduates from a reasonable law school, eventually passes the bar, even if they don’t pass it the first time. And, you know, the idea that we’re putting this burden on the mind run of law students graduating from law schools, purely for the benefit of policing a few bottom feeders who are taking advantage of students who are going to struggle to pass the bar game in the first place, irrespective of whether that would ever even evaluate their competence to be lawyers in the first place strikes me is just ridiculous. And like I know Stefanie’s boss, right. If Rodney thinks that Stefanie is a competent lawyer, I trust his opinion more than I do than that of the Bar Examiners who are a bunch of yahoos, right, who are administering a poorly designed, poorly written exam, that would be laughed at at any law school in the country right. These people are not qualified to administer an exam in the first place. They’re not qualified to be law professors, frankly, I mean, and you know I’m sorry, that’s the bare minimum for me. Right. I mean, I give them an F, sorry.
Stefanie Mundhenk: Well, I think this is evidenced by the fact that the President, the National Board of Bar Examiners right like she’s not she got diploma privilege she never took the bar exam, and yet they’re saying that it’s absolutely mandatory for us to take it. I know that in law schools around the country. I mean, I’ve been practicing law under a student and attorney you know a supervised practice license for over a year now and they’re telling me that if I can’t answer a few contract questions right, I’m not able to practice law or help a client. I don’t think that’s true. And I think that it’s so ad hoc. They’re making it up as they go. Nobody knows the rules we don’t work, we’re studying for an October exam, a lot of us are very concerned about the fact that this might actually end up being pushed out to October because a lot of the online bar exams, that have done test runs or even attempted to administer them have failed egregiously. and I know that at least for me, Kentucky told us 18 days before the bar exam that it would no longer administer a July Bar Exam, and that it would be online, but we still don’t know what a passing score is. We still don’t know how it will be graded. We don’t even know how we’ll be tested. They haven’t said whether scratch-paper is allowed. They haven’t said whether they’re going to monitor our webcams. They haven’t said if we’ll automatically fail if our Wi-Fi kicks us off. Emily and I don’t know, my roommate and I don’t know if we’re even allowed to take it on our same Wi-Fi from our same physical location. It’s hard to prepare for a test when you don’t know how you’re being evaluated, or how you’re being evaluated for cheating.
Brian L. Frye: You know, I gotta say Stefanie, I kind of feel that the Bar Examiners because they did identify a hell of a grift, and it must be a total drag seeing it going up in smoke.
Marlene Gebauer: And I mean you know you’re talking about, you know, very very practical and procedural things which people might say oh well you know that that works out. But to not know those things and be able to sort of mentally prepare for a test like this, you know is quite a stress on the test takers. There have been some creative ways of approaching it. Taking it online and Michigan that that crashed postponement doing it face to face and I know you and I talked a little bit earlier about how there are some places where literally they’re facing one another, you know, in, you know, in the auditorium in the taking the test.
Greg Lambert: And I just read today and in Colorado, one of the test takers right after the test tested positive for COVID. So she was asymptomatic going in past the temperature test twice. But now she was, she took the test in the room with 20 other people, and now they’re all quarantined.
Marlene Gebauer: Yeah.
Stefanie Mundhenk: Well but the problem is like those people have already left the state, they’ve traveled they brought whatever they had with them back to their friends and family right. Like who might be immunocompromised and I think we’re going to see that fall out very shortly, you know, after the in-person exams. I don’t think in-person as an option but the online Bar Exam has failed. There’s just really no fair safe equitable way to administer an exam, and I guess all of us have pointed out, it’s not even a good measure of whether or not you’re a good attorney.
Marlene Gebauer: Yeah, and I want to touch on that so you know we wanted to save a little time to talk specifically about one creative option that has emerged and it’s talking about emergency diploma privilege. And that refers to how some Bar Examiners and state Supreme Courts are giving admission to those registered by the July 2020 bar, to be able to practice with certain types of roles without taking the exam. Can we get into a little bit into the details of how that operates procedurally and what states are implementing that?
Stefanie Mundhenk: Yeah. So first I want to note that there is, so there’s provisional licensure and then there’s diploma privilege. So diploma privilege basically removes the bar exam as a hurdle and says, you know, if you went to an accredited law school, and you were signed up for the bar exam, congratulations take your oath your own attorney. Provisional licensure is what some states including Kentucky have opted for, in which they say, if you turn a certain amount of paperwork, you can practice law with a supervisor until you take the bar exam. So those are a little bit different and I think each has a few different wrinkles so I’m not sure which one…
Marlene Gebauer: So you have to do extra and take the bar exam.
Stefanie Mundhenk: Yeah. So I had to, you know, sign a bunch of documents and take them to a notary right mail them into the Supreme Court. I had to pay. I had to pay the bar. And so my application has been pending for a week now, at least you know my roommate has been pending for two weeks she actually just got her provisional licensure. And then yesterday I think it was the Supreme Court of Kentucky amend or to say, oh, now you have to fill out this other document and pay a notary again to do this and then you send and then you can have your… so it’s like the goalposts are constantly moving. And that to me says they have no idea what makes a good attorney so they’re just pulling stuff out of thin air and thinking oh yeah this so this would be a good idea.
Marlene Gebauer: If we have the right paperwork, we can say I think we covered our bases.
Stefanie Mundhenk: Yeah, but it’s like all that paperwork shows is that I have a supervisor,
Greg Lambert: Well Cat, what should the states be doing? What do you think would at least for the next year, help kind of ease people like Stefanie into the profession, without having this, I don’t know, an asterisk by their name for the rest of their career?
Cat Moon: I don’t know really how to address the possibility of the asterisks being there. I think at this point in time, as stated in the crisis we’re facing in the pandemic there is no defensible reason that a bar exam should be administered either in person or online. It is an absolutely indefensible position, completely. It cannot be defended. And if we take that as true, which we must, I believe that I’m going to echo the sentiments that Dennis Kennedy has shared on Twitter. I agree with this but he said at first, so I’m going to give him credit, absolutely everyone should just get diploma privilege this year. And we’ve now got an experiment. We’ve now got a group of people who we can follow through practice and see, and states can, you know, Institute’s specific courses of CLE’s that folks could take and institute some kind of mentorship program. Get creative folks. Like you know your bar you know the communities that you’re serving. How can you actually work with and for these folks who are entering our profession to support them and help them do well and thrive? I think that’s the best way we can protect the public frankly. And not just dig in our heels and say we’ve had an exam, we’ve always an exam, and protect the exam at all costs. So I think there’s incredible opportunity to really think intentionally about how we can support folks coming into the profession this year to thrive. And if we do that we are doing the best we can to protect the public. And we can run this awesome experiment, which we must be doing more of across every aspect of the legal profession right now. This is, this is truly a silver-lining, golden-moment, all those phrases in the midst of this crisis. So that’s, that’s my strong recommendation. I think Washington state so far has a right and they are saying that if you’ve gone to an ABA accredited school, you can and were registered to take by state, one of the two times that they have the exam happening, then you can come and you can practice.
Brian L. Frye: Yeah, and I think it’s really telling. And the reason that the state bar examiners and the NCBE are freaking out about the concept of diploma privilege because see if that happens the jig is up. If we admit attorneys. under diploma privilege, they know perfectly well, that it won’t change anything. They already know that. I mean, Cat’s right. It’s like a natural experiment. But it’s an experiment that the results of which we know in advance, right. We know in advance. Wisconsin has had diploma privilege for forever. Right, and they don’t have attorney discipline, on a level that’s any different than any other jurisdiction. I mean, the real point here is that if the diploma privilege gets adopted by a meaningful number of jurisdictions, and I hope and believe that that’s inevitable, now if not in the future, the bar exam is over and good riddance.
Cat Moon: So to follow up on what Brian said I agree I think we already know what’s going to happen. I’ve been hearing research that shows that most of the complaints that actually get investigated and end up in some kind of public censure, folks have been practicing for at least 10 years or so. We don’t even see the majority of problems with young practitioners. But let’s also consider you look at the 2020 ABA profile of the profession, which they’re reporting, you know the statistics on lawyer malfeasance or, or I can’t remember the name of the, of the chapter, but they have to start off by saying that we really have very incomplete and opaque information. States don’t reveal this information in any manner that’s transparent at all so I think that makes the bar exam, even less defensible because I think a clear theme in our conversation, is the fact that you have to jump through this hoop. It is a very very high stakes hoop, that you have to spend a lot of money and time practicing to jump through. And you jump through it. You’re not even sure exactly how well you have to jump through it. in order to get your license, and then. you pretty much don’t have to do a damn thing after that. In most states you have to take, you know 10-15 hours of continuing legal education, which is a joke. It is. That’s it. There’s nothing else. You’re free to go do whatever you would like to do. I mean, I think if the public really understood how minimal the bar, haha, really is. And it’s not. It’s very high stakes, but it’s the one thing that doesn’t align at all with any notion of what makes a good attorney, out in the real world.
Brian L. Frye: No. And to emphasize what Cat was just saying, I would note that as a member in good standing of the New York State Bar albeit retired, right, my decision to retire was based entirely on the fact that if I retired, I would no longer have to pay State Bar fees every year. I would no longer have to satisfy the CLE requirements supposedly ensuring my confidence, and the only consequence of my retirement is that I can now only represent people pro bono. Which is to say that, I guess, the New York State Bar doesn’t care about attorney competence when it comes to low-income clients?
Stefanie Mundhenk: I don’t know. They’re not willing to let me be a public defender without the bar, so. No, but I think that I think law schools do a good job of creating good lawyers. We see that a large percentage of people who graduated from an accredited law school, do pass the bar. And I think that it’s to me it’s ludicrous thought I did five internships, plus 500 hours of pro bono service, I have a JD and a Master’s, and I worked on hundreds of cases, under supervision of a supervisor, and I have even conducted a trial with this supervisor next to me but I first-chaired. Right, it’s laughable to me that I can do all of that, but because I haven’t passed a multiple-choice and essay exam yet, I am somehow not, we’re not sure that I’m competent to practice law. But I don’t think I’m out of the ordinary. I think that a lot of law students come out of law school, looking like me, because that’s what you have to do to impress employers. That’s what you have to do in order to even get the job. And so I think all of the tells of whether someone’s going to be a good lawyer are already present once they’ve graduated from a law school, and once they’ve procured a job,
Cat Moon: I will just say, Stefanie, that I am mortified and embarrassed for our profession that the situation can be just what you described. Like it’s truly embarrassing. I think it’s unprofessional I think it’s it’s mortifying. I don’t know what’s wrong with these people. Not sure who these people are.
Stefanie Mundhenk: But that’s the thing you know they cut the bar exam in half, they change the score, they wiggle the passing scores, right. But supposedly you really super need it. In order to prove that you’re competent.
Cat Moon: What’s interesting to me is you know you’re talking about all these amazing things you’ve done, and like I’m incredibly impressed and I’m so excited that you have done all these things and you’re experiencing this and you still want to enter this profession. And I’m so glad, because I’m really worried that we are going to lose some really important and critical people are in the midst of this process for a whole host of reasons. But what you’ve described, all these amazing things you’ve done are necessary but somehow they’re not sufficient for you and we’ve defined this exam. as the sufficiency right and, again, when you just look at that. It just makes no sense. I can’t make sense of it.
Stefanie Mundhenk: It’s just weird. And if there was a defense to it, I think they would have said it by now. Right? Like we’ve brought up all of these points, we’ve attacked them, we’ve written… like my roommate and I and many others have worked together to you know like this diploma privileged movement she and her friends have submitted petitions to multiple supreme courts in multiple states. We’re literally drafting our own legal pleadings, and so it’s like, we have all of these things that say we should be allowed to practice law and they’re, you know, and we’re putting forth these arguments, and they’re just not responding, you know.
Marlene Gebauer: You’re potentially toppling an industry.
Stefanie Mundhenk: Right.
Marlene Gebauer: I think that’s the main problem,
Brian L. Frye: If I may offer an analogy, the Bar Examiners are the credit rating agencies of the legal profession.
Stefanie Mundhenk: We’ve challenged it and say the bar exam is racist. It was originally implemented to keep out black people from the profession, and there’s just you know crickets because they know it’s true they know all of these things we are saying all the things we’re questioning are true and they just don’t have a response.
Greg Lambert: So Stefanie, let’s say, it’s 2022. We’re past, hopefully, by then, we’re past COVID, we’re back to some semblance of normal. Will anything have changed with how we administer the bar exam?
Stefanie Mundhenk: With respect to how we administer the bar exam. I hope so. You know, I hope that this has really opened, everyone’s eyes and the profession to just how terrible of a metric the bar exam is. Whether or not that will sort of enact any lasting change is debatable because I think that the Board of Bar Examiners has been quite resistant to the suggestion that they need to change. And I don’t necessarily expect that to change. But I do think that being able to have this conversation and sort of being able to have this conversation because of the pandemic I think that opened everyone’s eyes in a way that will sort of, I think, I think the bar game has lost legitimacy probably forever in a large number of people’s eyes and I think that says something. So whether or not, it’ll actually change, who knows, but I do think that we can’t unsee or unhear all of the points that have been brought up against it and the resounding silence from the people administrating it.
Greg Lambert: Cat? Is there going to be any change in 2022?
Cat Moon: So you’re asking, there’s going to be a change with the bar exam, 2022?
Greg Lambert: Yeah.
Cat Moon: Is there going to be a bar exam in 2022? Why don’t we start there? So, yeah, just to absolutely build on what Stefanie said I think at this moment has brought to the attention of many more people how fundamentally broken and just wrong the licensure process for lawyers is in the US at this point. And I think that this moment also has empowered, a group of people primarily those wanting to enter the profession in 2020 but I don’t think it’s limited to them. I have colleagues who I think are empowered now to be frankly much more vocal in their objections to the bar exam the whole host of reasons, and are willing to come together with others and try to do something about this. Now, whether you know these “grassroots efforts” are going to be successful or not, I have no idea. I choose to be optimistic because I really want to believe that when we are faced with all the cold hard data about all the things that we are doing wrong, that we will choose to do different, and to do better. I think it’s going to be absolutely a requirement that we have new leadership, who leadership willing to think creatively, willing to be innovative, and willing to meaningfully address the many challenges we have across the profession and licensure is, is one of them in the panoply of, you know, challenges we face. So I’m going to say 2022. There may be bar exams, but that may be just one way. And hopefully, they will look different. So that’s my prediction.
Greg Lambert: And Brian you get the last word on this.
Brian L. Frye: So I also hope there’s a change, but I fear I’m not terribly optimistic. The legal profession has always resisted change. I don’t think today is any exception. I do think the moment we find ourselves in is one in which the self-appointed leaders of our profession have really demonstrated their venality, hypocrisy, incompetence, and incapacity to actually satisfy the obligations that they’ve taken on for themselves. But I don’t think they’re going to give up control, without a fight. And I think we’re going to see status quo for a lot longer than a lot of people would like to see it. But, I hope this is the beginning of a long term structural change that sees the eventual delegitimation of the people who are currently running our profession and a rethinking of what we’re doing why we’re doing it and where goals are.
Marlene Gebauer: That’d be the last word for now.
Greg Lambert: That will. Cat Moon, thanks for making your fifth appearance on the show.
Cat Moon: It’s an honor and a privilege. Yes.
Greg Lambert: Brian Frye thanks for joining us.
Brian L. Frye: My pleasure, anytime.
Greg Lambert: And Stefanie Mundhenk, thank you for showing up and talking with us and good luck in October.
Stefanie Mundhenk: Thank you. Thanks for having me.
Marlene Gebauer: Yeah, now it’s time to get back to studying.
Stefanie Mundhenk: Yeah.
Greg Lambert: Marlene I wish Stefanie the best of luck as she prepares for the October exam Bar Exam there in Kentucky. You know, I don’t think there was any wiggle room on how Cat and Brian felt about the current bar situation.
Marlene Gebauer: No. I think that was pretty clear.
Greg Lambert: Yeah, and I do like the idea of just wiping out the bar exam for, you know, at least the rest of 2020. And I believe there was an ABA opinion piece today that said, that exact same thing that they, We need to just go, go ahead and go with diploma privilege. So I’m sure there are those out there, and I can think of a few on Twitter, who would frown upon me saying this but really, what is the overall harm, that would be done to do away with the bar for 2020 versus the overall good for removing the barrier to the 2020 law school grads who have already lived under massive uncertainty most of this year?
Marlene Gebauer: Yeah, it’s interesting to me and I’ll add to this that just the struggle that the Bar Examiners and courts have had and trying to figure out how to hold the exams, it’s just too much. I mean that there’s just too much fluctuation, and how it’s being done and they’re just clearly not ready to put this on and then the way it needs to go on. And the stats are showing but look in the long run, you know most of these people are going to end up passing. So, again, you know, it kind of goes back to why are we not just using diploma privilege for this year? And then take the time to really sit there and examine Hey, is this really measuring what we need to measure and is this really showing us truly who’s competent at the practice of law?
Greg Lambert: Yeah, well maybe we should just drop the shroud and just say, okay, give the bar 1000 bucks and we’ll let you in.
Marlene Gebauer: Well, there’s that. Ah, yeah. I mean you’re you’re talking about a real industry here and you know we talked about this but you know I truly think that’s, that’s where the pushback is. That there’s a lot of money at stake here, and people, you know, people don’t want to lose that income stream.
Greg Lambert: All right, I guess we’ll leave it at that.
Marlene Gebauer: Yeah. So, before we go, we want to remind listeners to take the time to subscribe on Apple podcasts, Spotify or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show, or suggestions for a future show. You can reach us on Twitter at @gebauerm, or @glambert. Or you can call the Geek in Review hotline at 713-487-7270 or email us at email@example.com. And as always, the music you hear is from Jerry David DiCicca. Thank you, Jerry.
Greg Lambert: Thanks Jerry. Alright, Marlene, I will see you later.
Marlene Gebauer: Alright, bye bye.