Biglaw’s Billion-Dollar Heavyhitters For Gross Revenue

Ed. note: Welcome to our daily feature, Trivia Question of the Day!

According to data collected by the American Lawyer for its 2020 Am Law 100 ranking, which Biglaw firms brought in more than $2 billion in gross revenue in 2019?

Hint: Of all the Am Law 100 firms, only 11 were able to reach these great financial heights.

See the answer on the next page.


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

In Poll, Legal Administrators Say Pandemic Changes Are Permanent | LawSites

“You can’t go home again,” novelist Thomas Wolfe famously wrote, and a recent poll of legal administrators suggests that is undeniably true for law firms in the era of COVID-19.

Of the legal administrators who responded to the poll, 91% believe the changes in working practices brought about by the pandemic, including more remote working, are permanent.

Three-quarters of them believe that the current situation will accelerate law firms’ plans to change their back-office services structure.

And 74% either agree or strongly agree that COVID-19 has made their staff more willing to change their working practices.

This non-scientific poll was conducted by the Association of Legal Administrators during a recent webinar it sponsored, “How to Plan and Manage when Change is the Only Constant.” Some 65 attendees responded to the poll, all of them administrators or working with the legal support function at law firms.

“It feels like these changes are a long time coming and it is unfortunate it took a pandemic to get us here, but this is a real opportunity to improve the legal service delivery model,” April Campbell, interim executive director of the ALA and moderator of the ALA panel, said of the poll results.

“Law firms will be able to focus on successful outcomes as the result of efficient processes rather than relying on a legal support system that was cumbersome and outdated. Some firms were already taking the leap before the pandemic, but now the rest of the industry is realizing the creation of new processes that work for their firms’ needs are a worthwhile endeavor.”

Other findings of the poll included:

  • Visibility of workflow and task delegation is the main challenge faced since support staff has been working from home.
  • 56% of those polled are planning on treating each office location differently when it comes to return to work plans between now and October.
  • A great effort by firms’ IT staff made WFH possible and this is set to remain even as returning to the office is encouraged, say 42% of respondents.

The ALA webinar included panelists from legal technology and consulting companies. In addition to Campbell as moderator, panelists were:

The panelists agreed that, assuming the poll findings prove correct and law firms will continue to work remotely for the foreseeable future, they will need to have a clear view of their legal support performance activity and analytics, and leverage this insight to make informed decisions to ensure efficiency. An example, they said, would be the proactive monitoring of the distribution of support tasks to ensure staff is highly productive, but not overloaded.

But the poll results also show that, while many law firms have been reluctant to change, the events of the last four months reveal openness on the part of law firm staff to change how they work, adopt new technologies, and refresh collaboration techniques.

“Law firms are changing and many are rethinking the fabric of their organizations,” said panelist Murray Joslin of Integreon. “The most successful adopters will be ones who are excited about changing, seeking new technology, discussing issues with clients, and embracing challenges. The magic of innovation lies in the ability to collaborate and be efficient.”

“Law firms have a unique opportunity to make difficult decisions now that they had wanted to make a long time ago,” said panelist Eric Wangler of BigHand. “Since it’s unlikely that people will be 100% back in offices, the long-term operational model will never look the same. This opens new possibilities for workflow, collaboration and back-office structures, facilitated by new technologies and strengthened infrastructures.”

At some point soon, Integreon is planning to produce an ALA white paper including more detail and analysis on this poll data, as well as insights from the webinar panelists about change management at law firms.  To request to receive this white paper when it is published, email info@integreon.com.

The American Lawyer’s 2020 Diversity Scorecard: Key Takeaways and a New Frontrunner Firm

The American Lawyer’s 2020 Diversity Scorecard has been released, and while it’s not all bad, it also isn’t pretty.  The 2020 Scorecard recorded the average number of full-time-equivalent (FTE) minority (including Asian-American, African-American, Latino, Hispanic, Native American and “self-described multiracial”) attorneys at Am Law 200 and National Law Journal 250 law firms for the 2019 calendar year. Here are the key takeaways you need to know about this year’s analysis:

  • 71 firms had at least 20% minority attorneys (up from 55 in 2019)
  • Seven firms had at least 20% minority partners

How are Firms “Graded” on the Diversity Scorecard? The Scorecard is specifically calculated to give a full picture of the demographic makeup of the top firms in the U.S.  A firm’s “diversity score” is the minority percentage of all U.S. attorneys at the firms surveyed plus the minority percentage of all U.S. partners at those firms.  Some things to remember when reading the report:

  • Lawyer counts are average FTE figures;
  • Equity and non-equity partners are included in partner statistics;
  • “Non-Partner” includes associates, special counsel, of counsel, and various staff attorneys;
  • Contract attorneys are not included in the report;
  • “Other Minority” includes Native Americans and those who identify as multiracial; and
  • Lawyers of Middle Eastern heritage are not counted as minority attorneys for the purposes of the Scorecard.

Who Came Out on Top?  The top five firms in terms of diversity representation among attorneys are:

  1. Berry Appleman
  2. Fragomen (down from number one in 2019)
  3. Wood Smith
  4. White & Case
  5. Kobre & Kim

The New Number One Firm has an Impressive Breakdown. Berry Appleman’s numbers are impressive – half of their attorneys identify as a racial minority.

… But There’s a Caveat: Fragomen actually reported a higher number of minority partners (24.4% to Berry Appleman’s 22.7%).

African-American Attorneys are Still Advancing at a Snail’s Pace.  The language of the scorecard makes this crystal clear: “Since 2010, the total share of minority attorneys included in the Diversity Scorecard grew by an average of 0.9 percent each year. This year did not buck the trend: The total share of minority attorneys grew by 0.9 percent, from 16.9 percent to 17.8 percent.”

Addressing the Lack of Diversity in the Legal Industry is an Imperative.  So much so that in 2019, over 200 general counsel signed on to a letter challenging law firms to develop more diverse teams.  And, in the wake of social injustice protests in mid-2020, the Law Firm Anti-Racism Alliance was formed, with 125+ firms signing on at its inception.

Why is Diversity So Important for the Legal Industry Specifically? Well, aside from cultivating a workplace that continues to attract talent, research also shows that diverse teams have a better exchange of ideas and are more innovative, which is better for clients.  In order to drive the industry forward, produce the best work possible for our clients, and to set an example for all of the other spaces within which attorneys work, attorneys must continue to strive for equity within their own firms and for the continued acknowledgement and elimination of bias in the legal field.

Related Content:

  1. What Legal Organizations Can Do to Prevent Unconscious Gender Bias
  2. The Benefits of Diversity in the Legal Profession
  3. Five Police Misconduct CLE Attorneys Should Watch This Week

Contract Law: The Best Way To Resolve Your Children’s Disputes 

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Afshan Paarlberg to our pages.

I can pinpoint the moment that contract law became alive and well in our home. I bring to you the unaltered facts (note: Some facts and circumstances may have been changed or exaggerated for demonstrative purposes).

It was April 8, the day following my youngest daughter’s birthday. My eldest child, herein referred to as the defendant, was beaming with pride over the acquisition of Legos, toys, and unopened birthday presents. My youngest daughter, aka the birthday girl and herein referred to as the plaintiff, held a single stick of gum. Had there been some sort of exchange? Both parties were alive and smiling, seemingly satisfied. Only moments later came the deafening screams accompanied by the urgent plea for justice. “Mama!” they cried in unison.

Now, normally I might have internally rolled my eyes, exhaled deeply, and proceeded to break up another fight. But something was different this time. Words from my dusty contracts book began swirling in the air. Exchange of goods? Agreement? Meeting of the minds? This was classic textbook stuff! I rolled up my sleeves. Lawyer mom was to the rescue.

For child-rearing tactics, I had historically cracked open parenting magazines. I practiced the 1–2–3 step solutions, never managing to make it onward to those extra credit origami crafts. In fact, I rarely made it past step one because the suggested calm, whispering voice quickly escalated to yelling when nobody could hear me. No, this time I was headed for a crash course in contracts. I sensed my six-figure education was soon to finally pay off!

A quick refresher. When does a contract become legally enforceable? Both parties must consciously intend to enter the agreement. There must also be consideration, something of value offered between both parties. An offer made must be accepted. Both parties also establish a psychic connection; they undergo an out-of-body experience as their minds high-five each other in the air. You might instead hear it referred to as a “meeting of the minds.” There’s also an issue of capacity — you can’t be mentally impaired or a minor.

I was still excited to embrace contractual principles — although not quite legally enforceable — to solve problems between my minor children. Satisfied children and long-lasting peace treaties? Equity and justice under our own roof? I was sold, on my own idea.

Now let’s continue to unpack how this all went down. I first physically separated the plaintiff and the defendant, ignoring all allegations and plain-view evidence of assault. The contract was the singular matter at hand. A criminal tribunal would handle the other matters. I seated the parties on opposite sides of the hallway — an impartial venue. Then, I gave the plaintiff and defendant an opportunity to make each of their cases.

There was no four-cornered document to reference. So I proceeded onward to any oral agreements. There had also been no witnesses to the incident. The middle sister did extend support to both parties. However, she was promptly dismissed for offering inadmissible character testimony. Neither plaintiff nor defendant had personal phones or emails, leaving no trace of written messages to examine.

Unsurprising to any parent out there, two wildly different stories emerged about “the agreement,” giving indication that there was no meeting of their minds. But, key details also surfaced. First, testimonies corroborated that without the exchange, the plaintiff would be excluded from future games. Could this be a threat? What would a reasonable 4-year-old have done under the circumstances? Second, the gum had a bite mark in it. Did gum come with an implied warranty of being unchewed? Finally, would any child in their right mind trade new birthday presents for gum? I suppose we all know the answer to that question.

The holding in Paarlberg v. Paarlberg is that the verbal contract was void ab initio on the basis of duress (i.e., the threat of exclusion). Since the contract never happened, all items were returned to the original owners. The most important result came with policy changes. Any future exchange of goods or services between minors must be accompanied by a written, enforceable contract, notarized by a parent and written in pen, crayon, or marker. Pencil can be easily tampered with when nobody’s looking — and I know my children. All disputed matters are resolved before the non-notary parent. As for record-keeping, ours have a one-week shelf life, after which the shredder is fair game. Typically, the traded items are long missing under a forgotten pile of toys by then.

Feeling pumped? Diplomacy, fair negotiations, and contracts have minimized the bickering in our home. The opportunity to reflect on the fairness of decisions before making a promise can go a long way. We still have the odd fight when exchanges are not reduced to writing. But, thoughtfulness now underlies most of these child-centered decisions. So before you encounter the next outburst, give your lawyer magic a try. You might be pleasantly surprised.

My original efforts at telling this story can be found at https://medium.com/i-taught-the-law.


Afshan Paarlberg is a mission-driven lawyer, writer, and strategist. Passionate about human rights, she is currently conducting research at the intersection of philanthropy, marginalized communities and policy. She is known for her expertise in immigration law and all-things nonprofits. She can be reached at afshanpaarlberg@gmail.com

No, Shut Up, We’re Not Postponing The Election

This morning, about thirty seconds after the horrific jobs and GDP numbers dropped, the president sent us all haring off after another incendiary tweet.

And just in case anyone failed to be distracted, he pinned it to the top of his profile. Subtle!

At the risk of engaging with an internet troll, no, shut up, we are not delaying the election. Congress fixed the date of elections on “the Tuesday next after the first Monday in the month of November,” and only congress can un-fix it. Moreover, unless the voters return them to office, the Constitution says Donald Trump and Mike Pence’s terms are up on January 20.

According to the Presidential Succession Act, if the president and vice president are unable to serve, then the Speaker of the House takes over. But without elections, House Speaker Nancy Pelosi and every other member of the congress would be out of a job as well. In that case, the Senate President pro tempore, i.e. the most senior member of the majority party, would step in. Currently, that person is Iowan Chuck Grassley, who has been in office since corn was domesticated. (More or less.)

But of the 35 senators up this cycle, 23 are Republicans and 12 are Democrats. So if all them exited the scene at once, control of the chamber would shift to Democrats, making Vermont’s Patrick Leahy the President pro tempore, since he’s been in office since maple syrup was invented. And if Leahy became President pro tempore on January 7 when senate terms expire, that would put him squarely in the line of presidential succession on January 20 when the Constitution kicks Trump and Pence to the curb. Which is … probably not what President Lulz had in mind.

Yes, if you feel like feeding the trolls even more, you can postulate about governors filling the seats between January 7 and January 20. But why waste the pixels — it’s never going to happen.

The real issue is that the president just dominated yet another news cycle with false claims about the security of remote voting, preparing his supporters to dispute the results if Biden is the winner. Trump’s Republican allies get to appear reasonable by comparison, furrowing their brows as they insist that the election must go on as scheduled, and Trump gets a pass on his lies about the safety of voting by mail during a viral pandemic.

“I don’t think it’s a particularly good idea,” Sen. Lindsey Graham said this morning when cornered by CNN’s Manu Raju.

“I wish he hadn’t said that, but it’s not going to change: We are going to have an election in November,” said Sen. Marco Rubio.

“Election fraud is a serious problem we need to stop it and fight it,” Sen. Ted Cruz stated, without offering evidence. “But no the election should not be delayed.”

Other senators described the president as making a hilarious joke at the press’s expense.

“I think that if you guys take the bait he’ll be the happiest guy in town,” Sen. Kevin Cramer told Raju. “I read it. I laughed I thought my gosh this is going to consume a lot of people, except real people. And it was clever.”

Except HAW HAW, multiple members of Trump’s cabinet are treating this as a serious suggestion. Yesterday Attorney General Bill Barr testified that he knew foreign governments would engage in wholesale counterfeiting of mail-in ballots because “that is just common sense.”

And this morning, in testimony to the Senate Foreign Relations Committee, Secretary of State Mike Pompeo, a Harvard Law grad who pretends he never read the Constitution, professed to be unclear if voting would be allowed to go on as scheduled. “In the end, the DOJ and others will make that legal determination,” he told Sen. Tim Kaine.

Because it’s all fun and games until John Yoo barfs out a memo saying that actually Article II gives the president the right to declare a national emergency and cancel elections. That train is never late.

Republicans openly challenge Trump’s tweet on delaying election [CNN]
Your Most Paranoid Pandemic Election Questions, Answered [Medium]


Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Firms Shouldn’t Force Employees To Download Certain Apps Onto Their Personal Phones

As the practice of law becomes more and more technology-based, attorneys often need to integrate their phones, computers, and other business assets to most efficiently provide legal services to clients. As a result of this integration, cybersecurity often necessitates that attorneys and staff use certain applications and software to make firm systems less vulnerable to attack. Accordingly, many law firms require attorneys and staff to download security software and other apps onto their phones so they can safely access email, documents, and other resources outside of the office. Nevertheless, requiring employees to download certain apps can raise privacy concerns and can also detrimentally affect an employee’s personal property.

In the olden days, attorneys and staff often did not need to worry about being asked to download proprietary apps onto their firms. Years ago, many firms issued business phones to attorneys and staff so that employees could access work email and resources without compromising their personal phones. In fact, I am old enough to have been issued a firm Blackberry — my first smartphone! — as a summer associate in 2011, and a firm iPhone when I became a full-time Biglaw associate in 2012.

More recently, firms have realized that they could save money by just having their employees use their own personal phones to read work emails and access work documents. As a result, attorneys and staff at many firms are not provided with work phones and are basically forced into downloading apps to their personal phones in order to facilitate access to firm resources. Many employees are not really given a choice about whether they can opt out of downloading these applications onto their phones. Usually they are just told that if they do not download the apps, they will need to log into work through a desktop or come to the office to read emails, calendar invites, and deal with other work-related matters. This is extremely impractical for many employees given the need to respond to many work matters as soon as possible, so attorneys and staff are often forced into downloading apps onto their phones.

Some apps are pretty benign, and employees cannot complain much when they need to download them onto their phones. For instance, some firms ask that employees download an app to provide an access code with which they can enter a firm’s system, and this is typically better than carrying around a separate security fob (which I had to do earlier in my career). Also, some other apps that allow access to a firm’s cloud or document management system from a phone are pretty convenient to have.

However, many firms require attorneys to download an app that allows a firm to wipe an employee’s phone of work-related data remotely, and this app can cause problems. Firms usually convey that such an app allows firms to remotely erase work-related data if a phone is lost or stolen. However, we all know that firms are more likely interested in remotely wiping a phone of work data if they need to terminate someone unexpectedly. I had to download such apps onto my personal phones at a few of the firms I worked at before opening my own shop.

Although I have never had technical issues with such apps, I have heard horror stories about such apps from others. One friend told me that when her phone was wiped of work-related data after she voluntarily quit a firm, the process erased all of her contacts! To add insult to injury, neither the firm nor the application developer seemed interested in helping her restore her contacts, since she had already left her job. As horrible as this situation sounds, this was not an isolated incident. About a year later, another friend of mine, who worked at a different firm, also had his personal contacts wiped from his phone when that firm erased data after he was laid off. I am sure all of us would be devastated if we lost all of our personal contacts, and downloading some kinds of apps at the request of firms can seemingly expose employees to technology issues.

In addition, some apps also come with serious privacy concerns. A friend told me that an app her firm forced her to download populated her personal calendar events into her work Outlook. In an office which has a public events system that allows people to see when others are busy, this would enable her entire firm to see her personal plans. In addition — and I don’t want to seem like I’m the kind of guy who wears a tinfoil hat — downloading an app onto your phone could potentially lead managers to discover where you are, how you spend your time, and other information. I have anecdotally heard of firms using time-tracking applications, keystroke-logging software, and other intrusive methods to surreptitiously watch employees. It seems like downloading work-related apps onto your phone can further enable firms to collect data on employees.

There is an easy solution for firms to satisfy privacy concerns and still promote security and efficiency. Firms should offer any attorneys and staff who do not wish to download apps onto their personal phones a separate work phone. Some people may not like to walk around with two phones, but others might prefer it. Indeed, I felt like a baller carrying around two phones earlier in my career. (Although some people joked that I must be a drug dealer, probably a reference to Breaking Bad!) In any case, employees should have a real choice about what they wish to do with their personal property.

All told, firms need to be a lot more aware of how requiring attorneys and staff to download certain apps onto their phones can raise privacy concerns. So long as firms give employees a bona fide option to not install apps onto their phones (possibly by offering separate work phones), firms can strike a balance between preserving security and respecting the privacy of employees.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The Top Law Schools For Music Law (2020)

Representing emerging and celebrity musicians and music industry companies is likely to catapult your name into the news and turn your business into a household topic of conversation. Maybe that’s one of the many reasons why you’re so interested in pursuing a career in music law. Attorneys who practice in the field of music law have worked with some of the most celebrated — and sometimes reviled — recording artists in the country (or the world), and that’s exactly the kind of career experience you envision for yourself.

If you’re still deciding where to go to law school and you’re dreaming of someday practicing law with music’s brightest stars as your clients, perhaps it’s time to take a look at Billboard’s latest law school rankings.

Billboard’s ranking is based on the number of accomplished music attorneys that have graduated from each law school. Billboard has ranked the top 10 law schools alphabetically. We’ll provide our readers with a look at the first five law schools here at Above the Law. Click here to see the full list.

Benjamin N. Cardozo School of Law, Yeshiva University (New York)
Enrollment: 925

Brooklyn Law School (Brooklyn)
Enrollment: 968

Columbia Law School, Columbia University (Manhattan)
Enrollment: 1,244

Fordham University School of Law (New York)
Enrollment: 1,093

Harvard Law School, Harvard University (Cambridge, Mass.)
Enrollment: 1,740

While it certainly helps to go to a top-ranked law school to represent the members of the music industry elite, going to a law school in New York or California seems to be even more helpful. If you’re interested in music law, you should know that it’s a relatively tough field to get into, and it may take you quite some time to reach the peak of your career — or, you could get really lucky.

Either way, choosing the right law school is just the first step, and we wish you the best of luck. Maybe someday you’ll get to represent your favorite musician.

Revealed: Billboard’s 2020 Top Music Lawyers [Billboard]


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Paul Singer Ready To Burn PG&E To The Ground To Get His $250 Million

As Law Students Sue Schools Over Exorbitant Tuition For Online Classes, Consolidation Might Be Coming

As reported by ATL and many other news outlets, law schools are increasingly moving to online classes for the fall 2020 semester. Yet, most of these schools are not offering any kind of meaningful tuition reduction for the students who are getting an online experience rather than the in-person experience they originally signed up for.

You can’t blame law schools for a pandemic. They still have to pay professors’ salaries and maintain their facilities. Still, it doesn’t seem fair to students to charge them more than the median household income to basically watch interactive YouTube. I mean, it didn’t seem fair to me, even long before COVID-19, for law schools to charge as much as they do just to serve as an entrance barrier into a profession that for most of its participants is a life of thankless toil in a job they hate (if they are lucky enough to find a job at all). I guess you’ll have to read my book if you want to hear more about that.

Anyway, the COVID-19 situation has awoken a few law students to the reality that they’re dramatically overpaying for a legal education. A rising 2L sued Harvard Law over its steadily high $65,875 annual tuition going into the fall for online classes. Students have filed two class action suits against Cal Western Law as it increases tuition costs for the fall semester, despite the new distance-learning model. There are probably going to be more of these.

The lawyers filing these lawsuits obviously see some merit to them. Other civil litigators, myself included, are skeptical. Despite being a litigator, I think litigation in general is a pretty bad way to try to solve most of life’s problems, and, despite being a progressive, I think there is a solid free market solution right in front of these students: if you don’t like how much your crappy law school is charging you to hang out in its Zoom meetings, don’t go to that law school.

Whether the lawsuits get any traction or not though, surely the pandemic is going to result in more legal education going online. As someone who taught first-year legal writing for many years, in a program that had some in-person components but had a lot of online interactions too, I can tell you that there is very little need for bricks-and-mortar classroom sessions in at least some legal subject areas. The hardest thing about the program I taught in was that it started as a pilot program, and the ABA, being skeptical of anything new and internet-related in a very lawyerly fashion, required the law school, in an abundance of caution in trying something new, to build more rigor into the program than I’ve seen in any IRL legal-writing program.

If we learn during the pandemic, that we can do more law school classes online, shouldn’t we keep it up after the pandemic? Unless made artificially into more work than it has to be, an online program is more efficient than a bricks-and-mortar program. Facilities costs would be lessened, class sizes could be increased without losing anything (unless you incorrectly think there’s educational value in an increased chance of being cold-called and embarrassed Paper Chase-style), and law students wouldn’t have to deal with the time-consuming and expensive logistics of getting to in-person class sessions.

Law school everywhere, for everyone, is not going all-online anytime soon. But it pretty realistically could be far more online, to almost everyone’s advantage, on a more permanent basis after the pandemic ends. If there could be more students at some of the established schools because of the efficiencies created by increased online learning, tuition could be lower for all of them. Students might feel more like they were getting what they paid for, because they’d be paying far less for it. The law schools would have a broader base of tuition support. The only losers would be law schools that are really struggling, whose students would be gobbled up by the growing online programs at the better schools. And even the vast majority of law schools agree there are too many law schools.

It’s something to think about, at least. Nobody’s happy that we’re dealing with this pandemic. But it’d be a shame to learn nothing from it and just go back to the deeply flawed way things were before COVID-19 forced law schools to try their hand at online learning.


Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

More High-Profile Support For Diploma Privilege

With bar exams learning that at least one examinee has since tested positive for COVID, the fig leaf protections examiners implemented from spot temperature checks to signed statements have been exposed. People can have this virus without realizing it for days and that’s exactly how it ported itself into the test site.

With these dangerous exercises behind us and more looming in a few months, the push to inject common sense into the process has intensified on all fronts.

The Pennsylvania Bar Association’s Board of Governors adopted the recommendations of a task force report urging the state supreme court to adopt diploma privilege for people who graduated between April 1 and June 30, 2020. At a time when even concerned authorities are more comfortable with half-measures like online exams, Pennsylvania’s professional leaders see that as just another disaster waiting to happen.

Moreover even those with ideal home conditions will be at the whim of a storm, accident, or equipment failure that causes a loss of power during the exam. Neither public health officials nor the medical community at large can give reliable prediction of where Pennsylvania or the country will be in October 2020 as it relates to the pandemic. A diploma privilege would provide some certainty to the recent law school graduates who are trying to enter the at the most uncertain time in the history of the bar exam. While a diploma privilege does sacrifice the testing of graduates, the majority of people who take the Pennsylvania Bar Exam for the first time in July pass the test (The first-time pass rate for the July exam each of the past three years was 80%). Many of those who do not pass the bar exam the first time do successfully pass the bar exam during a subsequent test — often on the second try.

Check out the full task force report here.

Meanwhile, across the river in New Jersey, the Rutgers Law School faculty have issued a strong statement advocating for diploma privilege.

In normal times, the bar examination is a stressful professional event, perhaps the most stressful professional event that a law graduate faces prior to embarking upon the practice of law. This year that anxiety has been increased exponentially. The cost this year to the newest members of our field outweighs the benefit the bar examination normally provides in proving a candidate’s mettle to practice law. The time has come for New Jersey to join other states in turning to more a humane response to what this year has become a protracted, costly, and painful professional examination process— one that is disproportionately affecting women candidates and candidates of color.

The Rutgers statement echoes the technical concerns about online exams and cites the school’s own experience with Spring exams:

The online bar exam also assumes that all applicants have access to computers with webcams and certain amounts of memory. Not all applicants have computers that meet these requirements. Many of the law school faculty can personally attest to this fact—several of us needed to purchase equipment to hold online classes this spring. Any law graduate who now must purchase additional computer hardware just to take the bar exam will be spending money during precisely the time they are suffering financial burdens of unemployment.

Which assumes an online exam can even get that far without crashing, something we have no reason to trust as yet.

Check out the full Rutgers statement here.

Finally, the ABA is entering the space. It’s not a call for diploma privilege, but does represent a big shift from the organization’s early agnosticism on the subject. The proposal would urge every state to suspend in-person bar exams for the duration of the epidemic and commit to actually testing any online exam process well in advance of the test day so applicants aren’t finding out that the test is canceled the week before it’s scheduled.

Unfortunately, the proposal leaves open the possibility of in-person exams in the event that “public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities.” The proponents presume that this is a bar that states are unlikely to clear, but if we’ve learned anything from this week, it’s that bar examiners can convince health officials to give them arbitrary waivers assuming the state bothers involving them at all in the process until the last second. And the states using online exams always believe the platform is ready to go right up until it isn’t. These caveats may be inserted in the interest of fairness, but each may turn into more of a loophole than the drafters’ expect.

Still, the ABA is a cautious bunch so the symbolic act of even criticizing states for pursuing this insanity should be lauded. It may not be diploma privilege but it sets the stage for advocates to push… assuming state supreme courts take this language seriously.

Though that’s another thing we have little reason to trust.

You can check out the full resolution here.


HeadshotJoe 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.