Provisional licenses should be granted to 2,000 who took bar exam, group says

California could see an influx of almost 2,000 provisional lawyers who have not passed the bar exam if the state Supreme Court accepts a State Bar working group's proposal to expand the new provisional licensure program to those who scored at least 1,390 during the past five years.

The Provisional Licensing Working Group approved the recommendation during a video conference meeting Wednesday.

Since the state high court directed the bar to create the provisional licensure program to help law graduates facing challenges due to the pandemic to practice under supervision until June 1, 2022 without passing the exam, multiple groups have called for the program to apply to anyone who achieved the new, lower passing score of 1,390 as far back as July 2015.

After the licensure program ends, the new group who failed in the past would have to retake the exam to become licensed in California. This year's graduates who decided not to take the exam would also have to do so by June 1, 2022 to become fully licensed.

The state Supreme Court lowered the bar exam cut score from 1,440 to 1,390 at the same time it ordered creation of the licensure program.

The court later clarified it would not apply the lower score retroactively, which has stirred up debate.

However, Sunil "Neil" Gupta, the principal attorney to Chief Justice Tani Cantil-Sakauye, proposed in a previous meeting that graduates who scored 1,390 on recent exams but did not reach 1,440 could be fully licensed without retaking the bar exam.

That proposal was discussed Wednesday and will be discussed in future meetings.

Meanwhile, Gupta told the group that just under 2,000 people who failed the bar exam in the past five years but scored at least 1,390 would be allowed to provisionally practice with monitoring if the court implements the group's recommendations.

The Board of Trustees must vote on the proposal before sending it to the court. The next board meeting is scheduled for Nov. 19.

In an email, UCLA School of Law Dean Jennifer L. Mnookin commented she's glad the group recommended graduates be allowed into the program if they have scored 1,390 during the past five years.

"I hope they will give serious consideration to the possibility Neil Gupta suggested, of giving these candidates a pathway to full licensure that does not need to go through taking the exam all over again," Mnookin wrote. "After all, they already achieved what is now a passing score."

Gregory F. Fortescue, a senior Supreme Court attorney, said during the meeting it's important to make sure people who have not practiced or studied for the exam for five years or more are still competent to practice law.

"I would be hesitant to try to unleash those people into the legal practice without having some sense of whether or not they have maintained competency," Fortescue said.

Group member Dolores Heisinger called the level of unfairness regarding retroactive admission astounding.

"The moment the Supreme Court lowered the bar, that threw a whole new bunch of questions up in the air," Heisinger said. "For instance, a February 2020 graduate who scored 1,390 must go through the provisional licensure program in order to receive licensure. Nine months later, someone taking the October 2020 exam and getting a 1,390 score will move directly to licensure. That's one of the many, many questions of unfairness that this automatically raises."

Evan Miller is a 2019 graduate of Santa Clara University School of Law, who has advocated for retroactive admission since the court announced the lower cut score. Miller said he would have passed the exam in February if the score had been 1,390.

On Thursday, Miller said he was surprised by the working group's support and efforts to expand the program.

"They even went back five years to let people in, at least for the provisional licensing aspect," Miller said. "And we were not expecting that. We thought maybe at best that they would go back to 2017. It seems like they're interested in helping us."

Also commenting on the bar's recommendations, Mitchel L. Winick, dean at Monterey College of Law, said the proposal is a "thoughtful and balanced way to provide qualified law school graduates who have been denied licensure by the unreasonably high California 1,440 cut score with a pathway to licensure while still maintaining an appropriate level of public protection."