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Md. Judiciary may let law grads practice due to COVID-19

With cancellation of the July bar exam a possibility, the Maryland Judiciary is considering whether law school graduates denied an opportunity to take the test this summer should be permitted to begin practicing under the supervision of attorneys.

Court of Appeals Chief Judge Mary Ellen Barbera has formed a work group to address the feasibility and desirability of authorizing unlicensed, would-be attorneys to practice, provided they are overseen by those who have passed the bar and sworn the oath of admission.

The eight-member work group, Study Temporary Licensing Under COVID-19, has an end date of Aug. 31, at which time it will submit its recommendations to the Court of Appeals.

The group was formed as the State Board of Law Examiners weighs whether to hold, postpone or cancel the bar exam scheduled for July 28 and 29 due to concerns about the spread of the COVID-19 virus.  The SBLE said it will make its decision by May 22, adding that a postponement until early September would still permit the licensing exam to be graded and for successful examinees to be admitted on schedule in December.

Fifteen states and the District of Columbia have postponed their July bar exam.

The test is generally given in July and February.

The work group is chaired by Court of Appeals Judge Joseph M. Getty. Other members are Court of Appeals Judge Brynja M. Booth; University of Maryland Francis King Carey School of Law Dean Donald Tobin; University of Baltimore School of Law Dean Ronald Weich; SBLE Chair Jonathan A. Azrael; SBLE Secretary Jeffrey C. Shipley; Bar Counsel Lydia Lawless; and attorney Irwin R. Kramer, representing the Maryland State Bar Association.

“Our main concern is fairness to law school graduates,” Getty said Friday. “Our workforce’s focus is very narrow: If Maryland needs to implement a temporary licensing program, how can it be narrowly tailored to the COVID-19 pandemic?”

Tobin and Weich presented the idea of temporary and limited licensure last month, citing the American Bar Association Board of Governor’s recent approval of a resolution calling on states to authorize law school graduates denied an opportunity to take the July bar to practice law under supervision.

“We were pleased to learn that if the exam is postponed until early September, the board intends to accelerate grading of the exam so that applicants can expect to be sworn into the bar by the end of the year as if the bar had been administered in July,” the deans stated in an April 14 letter to Barbera.

“Notwithstanding these efforts, it may prove to be impossible to administer the Maryland bar in a safe and timely manner,” they wrote. “Based on our experiences, we understand the state’s need to protect consumers and the perspectives of our students, faculties and staffs on the myriad issues that would need to be addressed. In addition, if applicants for temporary licensure are asked to pair with supervising attorneys, as other states have required, our law schools can call on our alumni communities to assist recent graduates.”

Barbera declined through a Judiciary spokesperson to comment on the work group or its mission.

A temporary authorization system would operate much like the path to receiving a driver’s license. Under this analogy, the law school diploma is a learner’s permit, which allows the holder to drive so long as he or she is accompanied by a licensed driver.

The permit holder is not permitted to drive solo until he or she passes the road test, which — like the bar exam — is a licensing prerequisite.

To qualify for temporary authorization, the ABA resolution suggests that law school graduates who were registered to take the bar exam in July be required to sit for the exam by the end of 2021.

The ABA also recommends that each graduate’s supervising attorney be in good standing and identified on all court, government agency and alternative dispute resolution filings submitted by the graduate when serving as a lawyer.

The graduate and supervising attorney should disclose to any client the graduate’s unlicensed status and receive the client’s consent prior to representation, the ABA says. The client should also be provided the supervisor’s name and contact information.

The graduate should be held to the state’s ethics rules for attorneys, including the obligation to provide “truthful and non-misleading advertising or other public statements concerning his or her limited authority to practice,” the resolution states.

The graduate’s limited authorization to practice law should terminate if he or she fails the bar exam, the resolution added.

“Every law graduate in this country has planned and worked for years toward the goal not only of graduation from law school, but admission to the bar and licensure,” the ABA stated. “The inability of a law graduate to take the bar examination in July 2020 would mean a delay, at the very least, of months in their ability to begin the practice of law. This delay may lead not only to tangible financial and family hardship, but disruption in the plans and operations of the organizations and clients for whom these law graduates may already be planning to work.”

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