By Juan M. Villalvazo
On July 16, 2020, the California Supreme Court sent a letter to the State Bar of California, directing it to “implement, as soon as possible, a temporary supervised provisional licensure program—a limited license to practice specified areas of law under the supervision of a licensed attorney,” in response to the COVID-19 pandemic and the challenges it presented to new 2020 law school graduates. At its meeting on the same day, the State Bar Board of Trustees appointed Board Member Hailyn Chen to carry out the Court’s order and delegated her the authority to appoint a working group or take other steps necessary to implement the direction of the Supreme Court. [Agenda Item 705].
Accordingly, Ms. Chen established a Provisional Licensure Working Group comprised of judges, private practice attorneys, government attorneys, attorneys responsible for hiring and recruitment, representatives from law schools, the Legislative Counsel of California, members of the Committee of Bar Examiners (CBE), and others. The working group met on August 7, 2020 and August 18, 2020, to develop a proposed rule of court using California’s Multijurisdictional Practice rules and Practical Training of Law Students rules, as well as rules adopted in other states to inform the process.
The working group circulated the draft rule for public comment on September 1, 2020, for a 15-day public comment period which closed on September 15, 2020. According to a memo that Ms. Chen presented to the Board of Trustees at its September 24, 2020 meeting, the working group received 193 public comments on the proposed rule. The group met again on September 18 and made some additional amendments to the proposed rule, which the Supreme Court liaisons on the working group determined were not substantive enough to require circulation for an additional public comment period.
Ms. Chen presented the Working Group’s proposed rule and program implementing the Court’s direction as to Provisional Licensure to the Board of Trustees at its September 24, 2020 meeting, and the Board voted to adopt the recommendations and submit them to the Supreme Court for Approval [Agenda item 708]. Accordingly, on September 30, 2020, the Bar filed a request for approval of a California Rule of Court to create the temporary supervised provisional licensure program for all persons who became eligible to sit for the California Bar Examination between December 1, 2019 and December 21, 2020.
On October 22, 2020, the Supreme Court issued Administrative Order 2020-10-21-01, granting the Bar’s request and establishing Rule 9.49 of the California Rules of Court, as set forth in Attachment I to the order.
The program allows eligible 2020 law school graduates to practice law as provisionally licensed lawyers under the supervision of fully licensed lawyers. Provisionally licensed lawyers will be able to engage in the same activities that a fully licensed lawyer is permitted to engage in, under their supervising lawyer’s direct supervision and subject to certain restrictions. Both provisionally licensed lawyers and their supervising lawyers are subject to liability, discipline, and sanction from the State Bar and the California Supreme Court, should the provisionally licensed lawyer fail to adhere to State Bar rules and guidelines governing regularly licensed lawyers.
Provisionally licensed lawyers will be allowed to provide a significant portion of legal services for clients, including appearing before a court; drafting legal documents, contracts or transactional documents, and pleadings; engaging in negotiations and settlement discussions; and providing other legal advice, provided that the work is performed under the supervision of a qualified supervising lawyer. Under this rule, supervising lawyers have discretion to decide the limits on what a provisionally licensed lawyer “can do, or what needs to be done under direct versus general supervision.” Provisionally licensed lawyers may have more than one supervising lawyer, who need not work at the same law firm.
Only those eligible under Business and Professions Code sections 6060 and 6061 to sit for the California Bar Examination between December 1, 2019, and December 21, 2020, either by graduating from a qualifying law school with a juris doctor (JD) or master of laws (LLM) degree during the time period, or by otherwise meeting the legal education requirements, are eligible to apply for provisional licensure. Application is not predicated on having taken the California Bar Exam, so long as candidates have already submitted a complete Application for Determination of Moral Character to the State Bar. Those who have had an adverse determination of moral character and fitness are precluded from applying. Those who sit for the bar exam during the provisional licensure program but do not pass can continue to practice until they pass the bar exam or until June 1, 2022, when the program is set to expire.
Consistent with the Supreme Court’s directive, the State Bar has posted a Frequently Asked Questions sheet about the program on its website. Rule 9.49 becomes effective on November 17, 2020.