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The pandemic has resulted in an opportunity to rethink the practice of law. Part of that reflection should include licensing requirements for attorneys. Already, we've seen states grant diploma privileges for recent graduates, for example. We've also seen that attorneys do not necessarily need a brick-and-mortar establishment to serve clients, meaning that states should ease restrictions on running a virtual law office. A more dramatic rethinking of licensing requirements may involve practicing out-of-state. If an attorney can work from home, can they provide representation to anyone in the U.S.? Finally, no blog such as this would be complete without at least one complaint about CLEs.
The legal industry is slow to change, I know. But this is a unique opportunity to make bold changes. I happen to have a couple in mind.
We've been hearing complaints for years about the bar exam. At best, it's a test that measures whether you have the time, discipline, and stress management skills to study for and pass a grueling two or three-day test. It does not, however, measure what it takes to be a good lawyer. Nor is it just a matter of inconvenience: It's been pointed out that getting rid of the bar exam may improve diversity in the law.
Now is the right time to improve the bar exam, which some states, to their credit, are doing. In California, that meant lowering the passing score. Other states may need to make different changes or consider granting diploma privileges in more cases. While I doubt any attorneys would cry if the bar exam was removed entirely, at a minimum the bar exam should improve. We've seen previously unthinkable changes made to passing the bar. Let's keep the momentum going.
Some states still have a “bona fide" office requirement, and there are other regulatory obstacles to starting a virtual law office. States should rethink virtual office requirements.
Most attorneys and law offices will want some kind of brick-and-mortar establishment. But those that don't should be able to practice law wherever they are, and not be bound by the cost and inconvenience of needing a physical building.
Wait, hear me out. Some states require a physical presence in the state to practice law there, even if they are licensed in that state. Now that most legal professionals are working from home, is it time to re-think the prohibition against practicing law in a state where you aren't located?
States should also consider lowering their CLE requirements. At a minimum, states should finally make it as easy as possible to get CLE requirements completed, including completing all on-demand. Being an attorney comes with a host of ethical responsibilities. Most of us can handle completing on-demand courses without too much trouble. States have made changes already. Might some consider making those changes permanent?
As I noted above, the legal industry isn't eager to make dramatic changes to anything. Yet, licensing requirements are meant to protect consumers. The above requests are not about making it easier on attorneys. They would allow consumers a greater choice and flexibility in finding the right attorney without losing any of the guardrails of our profession. And if we can't make those changes now, then when?
Remote Work Is Probably Here to Stay. So, How's It Going? (FindLaw's In House)
Potential Federal Court Rule Changes for Future National Emergencies (FindLaw's Strategist)
Attorney Malpractice Claims: Yet Another Thing to Worry About in 2020(FindLaw's Strategist)