By Erol Kilic
On September 25, 2023, the State Bar of California (State Bar) opened a 30-day public comment period for an alternative path to licensure for aspiring attorneys. The Proposal for a Portfolio Bar Examination (PBE) would allow for provisional licenses, between four to six months, for candidates to work under the supervision of a licensed attorney in California. After the provisional period expires, candidates would then submit their work portfolios to independent graders trained by the State Bar. Candidates would be required to identify their contributions to any work submitted clearly, and supervisors would be required to consent to the submission of the work. Candidates who achieve passing scores based on established rubrics would not have to take the California bar exam; however, passing candidates would still need to fulfill all other requirements for admission to the State Bar.
The announcement of the public-comment period resulted from the State Bar Board of Trustees meeting that took place on September 21st and 22nd of 2023 (Agenda Item 702), after over two years of study and deliberation by the Joint [California] Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar Exam. The State Bar had already approved California’s Original Provisional Licensure Program in October of 2020, in response to the challenges facing law students as a result of the COVID-19 pandemic. The provisional licensure program allows qualified law students to practice in specified areas of law under the direct supervision of a licensed attorney for a limited time. As a former participant, I can attest to the great value of such a contextualized approach to learning practical competency beyond the established benefits of typical legal intern/externships.
The Blue Ribbon Commission (BRC) naturally recommends that the PBE begin with a pilot program limited to candidates who are still active in the Original Provisional Licensure Program. There are roughly 100 individuals currently active in the original program, and they would provide a sound pilot group because they are already paired with supervising attorneys, they have already completed thousands of hours of legal work, and while the group is small enough to manage effectively, the participants are also sufficiently diverse for representational purposes. The BRC initially recommends scaling up the program and including JD graduates of ABA-accredited and California-accredited law schools.
The BRC has importantly identified that, while candidates should be required to complete law school courses in all major doctrinal areas, they should not be limited to specific practice areas for the purposes of the PBE, “as competence in one area is seen as indicative of potential competence in others.” (Report from the Alternative Pathway Working Group: Request to Circulate for Public Comment, p. 3). In addition to clear benefits regarding greater practical training and representation within the legal profession, the BRC highlights that the PBE is also likely to contribute to the protection of the public “at least as effectively as the two-day bar exam.” (p. 15). According to the BRC, this is because the PBE would incorporate an assessment of essential lawyering skills not practically testable through the traditional bar exam, and the PBE would require a demonstration of doctrinal knowledge and professionalism in the context of real-client problems.
At this stage, the State Bar needs meaningful public comment to better consider the potential benefits of the PBE, and we urge all those interested to post comments before October 25, 2023. The State Bar has also made the public comment form accessible here for information and instructions on how to submit comments.