Of all the purported alternatives to forcing students to take an in-person bar exam during a pandemic, the least useful is the provisional license. Which is exactly why it’s the proposal that survives “consensus” efforts like those spearheaded by the ABA — it sounds like a response yet it’s toothless enough to garner widespread support among critics.
And while some states adopt full or modified diploma privilege regimes, Hawaii is content to play it safe with an empty provisional licensing option.
The court, recognizing the logistical challenges and health concerns surrounding the upcoming exam during the COVID-19 pandemic, will give applicants who, by order of the court, are approved to sit for the exam, the option of foregoing the exam in favor of the provisional license….
The provisional license will require the licensee to work under the direct supervision of an attorney who is currently actively licensed in and practicing in Hawaii. The supervising attorney will also be required to be named on all pleadings and other court submissions.
The attorney would then have to pass the bar by July 2022.
Here’s a fun fact: you can already practice under the supervision of a licensed attorney. If your name isn’t on captions and another attorney is ultimately responsible for your work then you’re a “Law Clerk” or “Unlicensed Attorney” or however your particular jurisdiction prefers you flag yourself. Graduates who have law firm jobs do exactly this sort of work for months while awaiting final admission now. The only way this program is acceptable is if it requires provisional attorneys to take fancy three-hour lunches everyday since they’re just summer associates anyway.
A supervised probationary period is a fair requirement under some diploma privilege plans — even though it presents problems that would need to be sorted out in practice — but a stint of supervised probation that ultimately dumps the applicant back at square one in 18 months isn’t an alternative. It’s slapping a supposedly loftier name on “being a paralegal.”
But you get to do it in Hawaii, so there’s that.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.