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Pilar M. Escontrias

Pilar M. Escontrias is project manager for the Future of Latinos in the United States project of the American...

Donna Saadati-Soto

Donna Saadati-Soto is the co-founders of United for Diploma Privilege.

Efrain Hudnell

Efrain Hudnell is a recent law school graduate looking for trial litigation opportunities. He is also the co-founder of...

Emily Croucher

Emily Croucher is the co-founders of United for Diploma Privilege.

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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Episode Notes

It’s still hard to believe that there will actually be bar exams next week. But even in states with a basic respect for public health warnings, the exams are mostly just delayed requiring applicants to keep ramping up for a test only to be forced to forget everything again when the next delay is announced. The only way to avoid this cycle is to adopt an emergency diploma process. This week, Joe chats with Dr. Pilar Escontrias, Donna Saadati-Soto, Efrain Hudnell, and Emily Croucher, co-founders of United for Diploma Privilege. Follow them @DiplomaPriv4All.

Transcript

LegalTalkNetwork

Above the Law – Thinking Like a Lawyer-The Fight For Diploma

[Music]

Intro:  Welcome to Thinking Like a Lawyer.  With your hosts Elie Mystal and Joe Patrice.  Talking about legal news and pop culture all while thinking like a lawyer.  Here on Legal Talk Network.

Joe Patrice:  Hi and welcome to another edition of Thinking Like a Lawyer, I’m Joe Patrice from Above the Law.  I am not joined by my co-host today.  So, you’re getting just me and so before you switch off the show though, we do have more — we’re compensating for not having a co-host by having more guests.  So, we’ve got a whole gaggle of guests today to talk a little bit about an issue; that if you’re following Above the Law, you’ve been reading a lot about which is what’s going to happen going forward with attorney licensure around the country.

We have bar exams that are getting canceled.  We had a couple more this week already, we have people talking about online exams, people just moving to a different timeframe and then the question that a lot of people are out trying to push is that — you know, since the world is collapsing, maybe, just maybe we can be a little bit more creative and let people who’ve graduated from law school just go ahead and be lawyers.  And that’s really the subject that we’re going to get into today because I am joined by a bunch of folks from the United for Diploma Privilege Group who are working to get people to — get states to adopt a diploma privileged.  Option so, welcome to the shoe everybody.  Let’s go around and introduce each other and just a quick, who you are and what you’re doing and then we’ll get into the real talk.  Let us start with Pilar.

Pilar Escontrías: Hi everyone.  My name is Pilar Escontrías.  I am one of the co-founders of United For diploma Privilege.  My pronouns are she, her, hers’.  I’m originally from California.  I’m a proud Chicana, and I’m thrilled to be here today to discuss what we think is the — really the next horizon of the legal profession is to interrogate what it is that we find as, so inherently important about the bar exam.

And to talk a little bit about our work in seeking a nationwide, unified solidarity movement that is the Fight for Diploma Privilege.  I graduated from UCI School of Law this year and proud to be here and thank you so much.

Joe Patrice:  Efrain how about you?

Efrain Hudnell:  Hi, my name is Efrain Hudnell.  If you can’t roll your R’s you can just go Ephrine like epinephrine without the epin part.  I’m a graduate from Seattle University School of Law here in Seattle Washington.  My role in all of this really is I’ve kind of stumbled into the trade of managing a website and I’ve never done this before.  So that’s kind of my big contribution to this effort here but I am also a co-founder of United for Diploma Privilege.  Very happy to be here, thanks for having us.

Joe Patrice:  Okay, so Donna?

Donna Saadati-Soto:  Hi all, I’m Donna Saadati-Soto.  I’m from Los Angeles California born and raised.  I just graduated this past May from Harvard Law School, where I did a ton of immigration and family law work.  A funny story, I met Pilar on a Facebook meme page and that is how this kind of got started and how we got the ball rolling on this movement.  So, I too am one of the co-founders of United for Diploma Privilege most recently in addition to sort of managing sort of the organization on national level.  Pilar and I have been doing a lot of work in California and pushing for — hopefully, what will be Diploma Privilege in California.

Joe Patrice:  Great.  And Emily?

Emily Croucher: Hi, thanks for having me.  I’m also a graduate of UC Irvine School of Law with Pilar.  I’m — I guess the social media liaison for United for Diploma Privilege.  I run our Twitter and our Facebook.  I tweeted at you Joe.  This is how this all happened actually.

Joe Patrice:  Yeah, yeah.

Emily Croucher: So, I’m really excited to be here.  I’m an incoming public defender with the Kentucky Department of Public Advocacy.  So, I’m sitting for the Kentucky Bar.

Joe Patrice: No, actually on that note, Kentucky, they just — I believe it was this week, didn’t they?  Just changed when the bar going to happen?

Emily Croucher:  Yup, so on Thursday of last week, 18 days before the bar exam, Kentucky canceled our in-person July exam, yeah.

Joe Patrice:  Yeah, it’s one of those things that’s very frustrating, especially after you’ve been doing all of the studying and filled your brains with all of this relatively useless knowledge to have them decide then, “Oh, we’re going to push it off” because I don’t think that people who aren’t lawyers have any concept of how much the prep for the bar exam is not anything you’re ever going to use again.  So, this is all information you’re absolutely going to lose and have to redo before the test, which is unfortunate.  Unless of course, we don’t have a test.  So, I guess the question that I’ll ask now for people who haven’t been tracking this all that closely is “Can we get a quick definition of what Diploma Privilege is?” There are some different formats out there but what are we looking at?

(00:05:04)

Donna Saadati-Soto:  Diploma Privilege is a pathway to licensure that depends on you graduating from law school.  So, upon you graduating from the law school, you get immediate licensing into the legal profession to practice law.  Now, there are a number of different tweaks.  One to Diploma Privilege and also another concept called “Provisional Licensing.”  So, on one hand, there’s Diploma Privilege, there’s Diploma Privilege plus, right? With some additional requirements maybe supervised practice.  Maybe additional CLE’s.  On the other, there is also probational licensing which is not the same as diploma privilege.

You want to make that very clear because some folks are advocating for probational licensing.  Probational licensing is an idea where you get a temporary license to practice law and two, it is safe for you to sit for a bar exam.

Joe Patrice: There was a lot of talk about the provisional stuff early on and it always has struck me as kind of a non-solution for anybody who’s working in a — working for an employer.  I mean, other than folks who are hanging shingles, you basically can provisionally practice anyway.  So it didn’t really seemed like that changed anything so

this idea that you can become a lawyer — be it licensed as a lawyer based simply on having gone to a professional school that taught you all the skills necessary to be a lawyer theoretically, doesn’t seem all that crazy and indeed we have one state in Wisconsin who’s been doing this for almost a century.  So, it’s not like this is some radical crazy claim, but it’s had some problems getting the ball rolling unfortunately.  So, before we get into kind of the depressing story of how we haven’t gotten anything going.  Let’s talk to the person who’s in a state where they actually have done this right. 

So, Washington has actually joined along with Utah and Oregon.  They’ve gone — the Diploma Privilege.

Efrain Hudnell:  Yes.  Yes, we have.  Our Supreme Court ruled on that, I believe it was June 12th is when the order finally dropped.

Joe Patrice:  How did that fight go?  Or was that one where you didn’t even need much of a fight.  I know that Oregon, like the deans all got involved and everything.  How did it come about?

Efrain Hudnell:  It was certainly a fight.  I think this is something that all bar associations, all Supreme Courts feel that the bar exam is kind of their baby.  They’re pretty proud of it. And if they’re pretty proud of it, it’s a rite of passage.  So, we started the conversation, and actually we used a product that was shared in solidarity from the California Team by Pilar.  She sent to an SBA President’s Lister a petition that they were going to start circulating them in California.

And so, we took that petition, repurposed it for our own using, up in here up — here in Washington and we sent it off to our court.  And that generated — it started a conversation really.  Around what happens if the bar exam doesn’t happen or if it gets postponed or canceled.  And that was really the crux of our argument is — we’re not really going to attack the bar exam on its face because it is precious to those who administer it.  So, our point was — Okay, well assuming all the things that you like about the bar exam and all the things that it reports to do.  Let’s just assume that it does those things.  But we’re not going to talk about that.  We’re talking about what happens if the bar exam doesn’t happen?

Because everything about this law school journey and transition into the practice depends on a timely administration of the bar exam and getting my scores in September.  So that U can go to work.  And not only am I depending on that, my employer is depending on that as well.  Canceling or postponing the bar exam throws all of that out of black.  So, we started the conversation.  Initially, the proposal was shot down but it wasn’t until — it was shortly after the murder of George Floyd that Seattle was a host to quite a few civil demonstrations.

I live on capitol hill where — I’m not sure if you’ve heard of the “Chaz of the chop.”  There is tear gas coming into my apartment basically every night.  I had to leave Seattle a couple of nights and about a third of the bar taking population here in Washington State lived in and around the Seattle area.  So, it was my university actually, the faculty came together and said “We’re going to restart this conversation.  Supreme Court, please revisit this issue” and So they did and so, the letter went off on a Wednesday and by Friday, it had ruled that if you are graduate from an ABA accredited law school, and registered for the July or September Bar Examination, you are granted the option of taking diploma privilege.

Joe Patrice:  That’s great and obviously, as with a lot of things when Washington did it, that meant that Oregon did it.  So that was good for them also, as an Oregonian myself.  I understand that we have to do what Washington does.  I do not like to have to say those words but there we are.  So California though, has not gone this route.  In fact, California is notoriously stingy about its bar.  It actually has a ridiculously high cut score, it’s less a test to determine whether or not people are competent to practice law and more of a guild process by which they protect the people who are already in the profession.  Now that I’ve said all that so that you all don’t have to. I’m going — because you probably don’t want to sound as mean as I can sound on this sort of thing.  But let’s talk about California and the work that’s being done there on this subject.

(00:10:03)

Pilar, do you want to talk about that for us?

Pilar Escontrías: Sure, happy to.  You what I think what’s been most interesting about this whole process is that so much of the nation looks to California in so many areas when it comes to policy.  And I think Donna and I came into this process recognizing that it was an uphill battle.  Four months ago, in late March is when we when we started circulating our letter.  We were in full awareness that this would be a struggle.  I don’t think we realized what a struggle it would be.  I don’t think we realized that there were so many numerous stakeholders that these networks existed.  And we weren’t privy to them because we don’t come from — I’ll speak for myself.  I don’t come from a background where I grew up hearing about the Supreme Court issues, these types of orders.

And the legislature has these connections through the Appropriations Committee and the Judiciary Committee and all of this stuff and it wasn’t anything I learned in college.  So a lot of this process was as well, unlocking the black box of knowledge that goes into the regulation, the admission of the legal profession. 

So that has been a certain type of struggle most recently in California.  We have been engaging our legislators in a very robust way.  We have made thousands of calls to our legislators and we’re very proud to say that now numerous legislators support us and have written letters to the Supreme Court of California.

They may not be in the same position as legislators in New York to be able to introduce a bill given the deadlines.  But we are requesting that Legislators gut and amend and we know that that can still be done even up until the last minute.  So, this whole week and last week has really been — every day is calling day.  It is how we’ve organized it and we have a lot of organizers.  This is completely a grassroots movement, that’s the way it is nationwide.  But I think in California, given the numerous stakeholders, you know we have teams who focus more exclusively on the State Bar, teams who focus more exclusively on the petition, right?  That we’re going to be filing, teams that are exclusively focused on legislative coordination.

So, it’s been a very big process that we really never know like, you know, what’s going to happen from day to day.  Where we stand now is — we’re waiting for the Supreme Court of California to issue a ruling as of now it is an online bar examination.  With a date uncertain but likely a September and October administration and would love to talk more about an online exam and the problematics of all of that.  But I’ll stop here because I do want to 0 just like stick to your —

Joe Patrice:   No, that’s fair and I think we are going to talk about it.  I was actually going to just transition that over.  I didn’t know if Emily would answer it want to answer it or maybe she’ll yield for you to keep going on it.  But online exams are one of the other options that are out there for people.  You know, some State Bars are saying “Well, why don’t we just have this short online exam? Everyone can log in, that way they don’t have to be crammed into a convention center and it’ll be fine, it’ll be a bar exam-ish.”  Because they’re like you said, kind of they view this as their baby and they have to have a test no matter how ridiculous it sounds.  But what are kind of the problems with these online exams?  Not just the problems of taking them but also the problems as far as — I guess it is still the problem taking them but it’s not just that you can pop, just flip a switch and have an online exam.  There are issues of infrastructure, as well as issues of how — who writes the things you know? 

Emily Croucher:  I’ll say really quick about Kentucky, specifically because we are having an online October Test.  Kentucky is not a uniform bar exam state.  But this online bar is a uniform bar exam.  So that’s kind of fascinating, right?  Kentucky is a state-specific bar exam but suddenly, I am now taking the UBE.  There are also problems — I love in Rural Kentucky, I live in Appalachia.  I live in a town of 8,000 people.  I don’t know that I’m going to have sufficient internet to take a bar exam.  I live with a roommate who will also be taking this online bar examination and the Kentucky Office, the bar admissions had no answers as to whether that’s a cheating issue.  So, in Kentucky there’s a whole host of problems with the fact that it’s UBE now.  And a lot of the state has poor internet because we’re rural.

Joe Patrice:  Yeah, as far as UBE, like it’s — so it’s not going to be transferable the way that UBE but it’s going to be all the UBE questions.  And that distinction actually transitions to one of my things that I’ve been writing a lot about which is the NCBE, the people who write all of these bar exams and the UBE.  They’ve been aggressive in saying “Well, we’re not going to bless online exams.  We’ll let you use our questions, so that people in these states aren’t writing their own exams out of nowhere.  But you can use our questions but we’re not going to bless it as something that can be used in a different state or portable.” 

(00:15:03)

Which I’ll go ahead and say I feel has been hostage taking on their part.  Their death drive for having an in-person bar exam has led to the point where they’re straight up telling people we’re not going to let you utilize the most useful possible alternative.  And if you try to do anything that’s not through us or even using our questions. even though we aren’t giving you the portability but if you try to use things that aren’t our questions.  Even though we aren’t giving you the portability but if you try to use things that aren’t our questions, we’re going to make sure that none of your lawyers can ever work anywhere else again.  It’s just been counterproductive and sad that an organization would be this disconnected, especially when we’re only talking about — we’re probably only talking about a year’s exception. 

We can put aside and I think we will talk in a little bit about going forward reforms but it’s been really problematic.  Has the NCBE been — obviously and you’re talking directly to courts and legislators but I would assume in the background, you probably aren’t interacting with them but you’ve got to assume the NCBE is working against you, calling those same people and trying to muck things up for you.

Donna Saadati-Soto:  Well, I think something that’s interesting — sorry Pilar about that NCBE is one; I think a lot of their offices, if not their main office is in Wisconsin, which is a Diploma Privilege state.  Also, the president and a lot of the salaried leaders of the NCBE, were licensed through Diploma Privilege.  So, it’s so interesting that they are now folks that are holding on to this bar exam when they never took the bar exam themselves.  So that’s interesting, I think, you know, we haven’t had too much direct interaction with the NCBE.  I know they don’t love us via social media sort of tweet out different messages that really upholds the integrity of having a bar exam.  I think we are also like followed on social media by a number of NCBE members so that they know what we’re doing at all times. 

So it’s interesting, a bigger point I think I want to make is, you know, there is a lot of internal politics going on between the NCBE and the different State Bars and the different courts and there’s a lot of politics probably going on within each jurisdiction between the bars and the courts and all the other stakeholders.  Just a reminder that the folks that have to deal with, right?  The lack of transparency around decisions or the decision-making process.  The folks that have to deal with being in limbo, right?  We are in California, we don’t know when our exam is.  What format it’s going to be, we don’t really know.  It’s us, the applicants that have to deal with that and we have to figure out how to arrange our study schedules for a bar that may or may not happen around all of these issues that we’re just not privy to, that we’re not getting information about.  That we’re just kept entirely in the dark from both our State Bars, courts, et cetera. 

Emily Croucher:  I also wanted to talk a little bit about the fact that our nationwide coalition does — have an impact survey that we’ve been distributing to our state membership and that was again, I just want to highlight acts of solidarity that came from Washington.  We adapted it for California and so, some of the questions, in light of the Supreme Court’s most recent ruling, had to do with access to internet.  So, we have about two-thousand signatories in California that, those are practitioners, they are professors, they’re bar applicants.  And of those folks who we surveyed fourteen hundred actually filled out the survey and they’re all bar applicants.

Okay, sitting for a July 2020 or attempting to sit for a bar exam at some point.  Now, of those nearly fifteen hundred, 72.3 percent were not sure if they would have reliable internet and 30 percent said they knew they would not.  So, I’m one of the 30 percent who do not have reliable internet at home, unfortunately.  And I’m quite privileged and when I lived on UCI’s campus, I also would have answered as a “No.” You know, affirmatively, not having internet because our campus internet is not super great.

So, I want to highlight that, I also want to highlight that almost 80 percent of respondents will not have a quiet space without interruptions to take an online bar exam.  So here, we’re talking purely about infrastructure, purely about individual resources, right?  Now the other side of that is that the State Bars — at least in California has not been transparent as to whether or not they will use AI proctoring.  They have not said that until today and that was on the Board of Trustees call, where the main — the Chair of the Board said “Well, AI proctoring isn’t an invasion of privacy until a human proctor comes on.  And then you know, if you’re flagged for cheating,” basically is what this person said.  But today, the ACLU of California wrote a letter to the Supreme Court of California and provided it to us demonstrating all of the problematic uses of AI. So, you know, they’re sort of at least three layers to this, I think.

(00:20:02)

The first is not everyone will have access to a computer that can store the amount of space needed for a proctoring infrastructure to take place without consistent and online internet, right?  And then of course, many scholars have talked about how AI data inputs.  Meaning, the algorithms that are established come from data sets that are white and male. 

Joe Patrice:  Right.

Emily Croucher:  So non-white, non-heteronormative, non-cis folks like — if you think about who does that not cover, that’s probably the majority of exam takers at this point.  So, the behaviors that will be flagged are all on the basis of white males, right?  So it’s inherently a discriminatory proctoring system.  I mean, I think we could go into a lot of discussion actually about AI but these are the sorts of discussions we’re having with our State Bars, as well as with the Supreme Courts who are not really responding to us, right?  Who is responding to us are the legislators because they have an interest in privacy, they have an interest in ensuring consumer protection, they have an interest in answering to discriminatory impact, right?

So, they have been the most — they have really been like the biggest supporters of ours because we highlight these data and we demonstrated how problematic it is.  And in California, there are cities that ban AI usage.  San Francisco basically has an ordinance in place that they will not contract with AI technology firms, unless previously — unless all of these criteria are met.  I don’t know what they are so don’t quote me on it but I do know that it’s differential across the state, the extent to which AI is even allowed.

Joe Patrice:  Yeah.  In theory, I think there are ways around getting it and getting those — around those sorts of laws by people opting in and stuff.  But it is a testament to the problems that these are government — going to be government actors who are going to be contracting with them and then that probably runs afoul of ordinances.  Like it’s a one thing to say, like you chose to take the bar exam so you waive — that you could get a waiver on that but you probably can’t get a waiver on using government funds to do certain things and through government internet access points and stuff like that which I think some places are definitely going to have to use because people won’t be able to do it at home. 

So, there’s going to have to be — the bars will — for any online exam to work, I would assume the bars are going to have to say “We’re commandeering this law school place” or something like that and where people can go if they don’t think they have their own internet and then that runs afoul of all of that sort of stuff.  No, absolutely.

So, right now I want to bring up a great article that I wrote a little bit about, which is an Oregon story, Judge Ortega in Oregon wrote a good piece explaining how after years and years of being around the bar exam, she’s pretty confident in telling you that it has almost nothing to do with protecting the public.  And that’s something that I want to underscore for listeners who aren’t really tracking this as closely, which is the bar exam posits itself as a way of protecting the public from lawyers who don’t know what they’re doing.  But in reality, everything that was on my bar exam had nothing to do with the career that I was about to undertake and so it had no real value in making sure that I didn’t do anything.  What did have value was you know, the ethics test, which is separate.

It did have value and there are problems with the ways in which character and fitness is acted out and to use the Constitutional Law.  There are application problems with C&F but as a concept, C&F is valuable for making sure that people aren’t defrauded by lawyers.  But the bar exam itself doesn’t do any of that.  That brings us to the question of what happens long term?  I think right now, we’re really focusing on kind of an emergence, I’ll classify it as an emergency privilege.  This is a situation where the real argument is put aside whether or not the bar exam is valuable, we absolutely have no way of being in-person any time in the near future.  People’s careers need to have some sort of licensure happen and to that extent, rather than, you know, making Emily study until 18 days before the test, maybe we should just go ahead and call this one off.  That’s the movement now, but one of the issues and I think the reason the NCB is so concerned is that, this could very well be a “emperor has no clothes” moment for them.  If we do this and if the class of 2020 does not turn out to be a bunch of criminals, who are like running around and fake practicing law and taking money and co-mingling it, and all the things that you’re not supposed to do.

If that doesn’t happen then, I think it puts the NCB in a position of really having to justify its existence.  What do you see as kind of the long-term impacts of these experiments?  I mean, do you think there is a hope that we would come to a conclusion where there is a more fundamental reckoning with how we license people in this country?

(00:25:05)

Efrain Hudnell:  Absolutely Joe.  That’s already happening in Washington State and I think Utah and Oregon will — institute a similar review process.  The Supreme Court of Washington has already stood up a committee which basically, its job is to evaluate the efficacy of the bar exam.  One of the ways they’re going to do that is that they’re going to use this group of admittees as a control group.  And they’re going to see if we really are as dangerous as everyone thinks we are, sands the bar exam.

I can’t speak to what the NCBE is thinking and or will I try.  but I think this is — if nothing else, whether you’re for the bar exam or against the bar exam, this is a unique opportunity for us to really take a step back and see.  Is this thing doing what we think it’s supposed to be doing?  Because it’s really expensive and if I’m caught up in the administration of this, I want to make sure that there’s really a big god-awful, unwieldy thing that we do every year, it’s worth it.  Data doesn’t lie, I think in three to five years, Washington State is going to be in a position to either say like, “Hey actually you know?  These kids that we brought in without a bar exam are really dangerous and they’re really mucking things up, maybe we need to expand the bar exam” or what I think is going to happen personally is we’re not going to be that dangerous, we’re going to do our jobs really well and we’re going to meet the public need and maybe, we don’t do a bar exam.

Maybe we switch over to a Diploma Privilege or Diploma Privilege Plus model and the access to entry — the barriers to entry start to go away and our legal marketplace will thrive.

Joe Patrice:  One knock-on effect of that sort of a reform that I’ve talked a little bit about is all my friends at the ABA who are really kind of banging their heads against the wall on accreditation.  That because the Bar of Accreditation isn’t super, super high but it is there and when in recent years, they’ve attempted to call out law schools for not being up to snuff.  They get sued by those schools and aren’t able to enforce their attempt to strip them of accreditation.

And part of that is that there’s a real mentality out there and I hear it all the time where people say “Well, we don’t need to worry about the law schools, the bar exam will protect people on the back-end and that means we don’t need to worry about people spending hundreds of thousands of dollars in years in school.  We’ll figure something out later.” and it could, I think a — if you all succeed in bringing about some fundamental reform.  My hope is that it could result in a world, in which the ABA has a little bit more teeth and is a little bit more able to say “We’re going to have a strong hand in determining whether or not a school is accredited because a school being accredited is now the only requirement.”

And I think that could help take care of some of the — I’m not going to name any specific schools owned by InfiLaw or anything like that.  I’m going to say though that there’s several schools that I can point that have had some real issues of seeming not to be serving their students, as well as they should according to the ABA and it could take care of that for them.

Efrain Hudnell:  If I may, I think that the single most-valuable part of my legal education experience was being able to do clinics and externships, doing the job that I wanted to do upon graduating.  It’s great that you get the background in constitutional law, property law all the theoretics and reading the cases, that’s great but the real worth, at least for people like me who learned the way that I learn is getting out there and being thrown into a courtroom and making arguments rooted in the law that I’ve been spending time over the last two years learning.

That’s how we get there, whether the ABA decides it wants to sharpen its teeth, that’s not for me to say but experiential learning, I think is critical in a revised legal education model.

Pilar Escontrías:  And what Efrain mentions about practice, right?  The practical realities, I always think of this when people say, “Well, what kind of world would we live in if we had doctors who never took the medical boards?  If we had teachers who never did certification?”  And although that’s a very nice analogy, it fails.  It’s a failed analogy because the reality is if you look at the data, 90 to 95 percent in California of doctors who take their medical boards pass because that is the last safety net.  I mean, they’ve already done their residency, they’ve already done everything and it’s like a three-prong exam.

So, by that point of course they pass because they’re absolutely equipped, you know?  And those who don’t, have — I’m sure, valid reasons or are actually not fit.  So, and then this teacher licensure is the same and I think that what this always ends up coming down to.  Efrain started by talking today a little bit about how we didn’t begin our movement by attacking the exam on its face.  But it always ends up coming to that because people, as they start asking us questions, as they start excavating what are our goals.  They want to know, are you abolitionists at heart?  Are you really just like wanting to do away with all of this and many of us within the movement are, in all transparency, and I don’t think we’ve been — you know, not transparent about that, however, what it demands is a pretty robust discussion of what does our bar exam look like?

(00:30:02)

What is it meant to protect?  And who is it meant to protect and if you — you know, if you actually look, I can really only speak to California but if you look at — what does the State Bar said about competency and protection, they have stated that they do not have a definition for protecting the public.  And they’ve said that numerous times over and over and over again in their reports about inclusion and their reports about discipline.

So, if you can’t even come up with your own workable definition about what protection means, then how do you advance the mechanism of protection, which is the bar exam if you can’t define it?  So, that does end up becoming one of our talking points, not because we’re foregrounding it but because as we have these conversations, as people ask us more, you know?  It does demand of us to have just a foundational discussion about what is the bar?  And what does it accomplish or not? 

So, we do get into these discussions but it is funny when you start combing through the documents in the State Bars, how little they’ve actually said about competence, how little they’ve said about protection.  So, these are words that are like, very heavy and they’re deployed all the time but they have no actual significance in a real way tied to data.

Donna Saadati-Soto:  In addition to the competence argument, something else that we hear a lot, especially here in California is that the bar exam is sort of like a supply side regulation of lawyers, right?  Like we just — oh, we have too many lawyers here in the State of California and the bar exam needs to make sure that we have just the right number of lawyers.  And you know, at first, I think it’s really ridiculous that you’re going to have folks go to these law schools, take out hundreds of thousands of dollars, study the law full-time for at least three years and then be like, “Oh, we have too many lawyers, so now we have to have this exam that we designed.  Such that most people don’t pass.”  I think that’s ridiculous.  I also don’t even know that it’s true that we have too many lawyers.

I think if you perhaps ask folks in public interests or different public interest organizations, they may be in need of a whole lot of lawyers.  It’s just issues regarding funding or folks being able to afford going into public interest, right?  When you have hundreds of thousands of dollars into loan.  So perhaps, it’s not so much that there aren’t enough — that we have too many lawyers.  But really that we don’t have enough lawyers in certain areas and students just aren’t able to afford taking on those jobs when you have so much student loan debt coming out of law school.

Joe Patrice:  Indeed.  In California, there was a report put together a couple of years ago that was given to the Supreme Court that came to exactly that conclusion.  That you do not have too many lawyers, you in fact have a massive gap, whether you need many, many more lawyers doing more of the public defender work that we’re talking about with Emily.  Although in Kentucky, I guess you’re not helping the California problem.  But you know, they need public defenders everywhere, but yeah.

Efrain Hudnell: I’m looking at being hired by the prosecutor’s office here in Washington and Emily and Pilar are both public defenders.  So, you know our cause is righteous.  When we have prosecutors and defense attorneys working together —

Joe Patrice:  Working together.

Efrain Hudnell:   With us — it’s the common goal.

Joe Patrice: Dogs and cats living together, mass hysteria.

Emily Croucher:  We are bipartisan.

Pilar Escontrías:  We are bipartisan.  Yeah, we do not discriminate in our movement. 

Joe Patrice: Well. That’s a perfect place to end.  Well thanks to everybody for joining and letting us know what’s out there.  People should know to connect with the United for Diploma Privilege folks if you are interested in signing petitions and helping out and getting this off the ground.  So, thanks everybody.

Donna Saadati-Soto:  Thank you and please follow us on Twitter.

Joe Patrice: Yes, follow — yeah, actually yeah.  Let’s do the social media thing.  Go, go, go.

Donna Saadati-Soto:  Thank you so much.  Please follow us on Twitter @DiplomaPriv4All.  That is the same for our Instagram.  So, our email address is [email protected].  So please feel free if you are in a state that is not currently — does not currently have a United for Diploma Privilege movement.  Contact us, we onboard folks.  Efrain just onboarded Louisiana yesterday, we are here in solidarity.  we’re fighting like hell in our individual states but also want to be with you.  So, please feel free to reach out and we’re down for the cause, even beyond this particular moment.

Joe Patrice:  Great and thank you all for listening.  You should be subscribed to the show, you should give it reviews.  As always, you should give it stars, as well as write something that is — the algorithm looks at that when it’s trying to decide whether to recommend shows to people.  You should be reading Above the Law.  As always, follow, I’m @JosephPatrice on Twitter.  You should be listening to the other shows of The Legal Talk Network, as well as The Jabot and the ATL Covid Cast which are our two — other Above the Law-related shows.  And with all of that said, we will check in with you all again next week.

(00:35:03)

[Music]

Outro:  If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com.  You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter and Facebook.  The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice.  As always, consult a lawyer.

[Music]

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Episode Details
Published: July 21, 2020
Podcast: Thinking Like a Lawyer - Above the Law
Category: Law School
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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