Beyond the Bar

Lewis & Clark Law School is at the forefront of a movement to provide a rigorous—and more equitable—alternative to the bar exam. Professor Joanna Perini-Abbott is helping lead the conversation around licensure reform.

Beth Sethi JD ’23 remembers sitting in her car, consumed with rage as she listened to a radio report about the Trump administration’s policy to separate migrant children from their parents at the U.S. border. “How can this be happening, and why is there absolutely nothing that I can do about it?” she recalls asking herself.

It wasn’t the exact moment the mother of three, now 48, decided to apply to Lewis & Clark Law School to become an immigration attorney. But the outrage she experienced that day led to a midlife career pivot, and in 2020, Sethi entered law school. This spring, immediately after graduation, Sethi will begin working as a full-time attorney at the immigration firm where she has clerked her final two years of law school.

Sethi won’t be taking the bar exam—because she won’t need to. She’s among the first Lewis & Clark law graduates to pursue a new, alternative form of legal licensure in Oregon, known as the Supervised Practice Portfolio Examination, or SPPE. Instead of taking the bar exam, law school graduates can now commit to practicing for 675 hours under the supervision of a licensed attorney, including federal judges. They must also pass an ethics exam and submit a portfolio of work for approval to Oregon’s Board of Bar Examiners.

The SPPE pathway is available to spring 2024 graduates of the state’s law schools as well as to out-of-state law school graduates who wish to pursue Oregon licensure without taking the bar exam. The first-of-its-kind program in the U.S. is expected to usher in a wave of changes to attorney licensure beyond Oregon, as the legal profession seeks to remake itself to better represent the people it serves.

Reckoning With the Exam

The licensure reform movement begins with rethinking the bar exam as a way of measuring the competence of new attorneys, says Joanna Perini-Abbott, professor of practice and director of the law school’s new Advocacy Center, which facilitates practical skills training for law students. She’s widely recognized as a leader in catalyzing the state and national conversation around licensure reform.

The bar exam, many critics say, has long been a poor measure of a lawyer’s ability to be good at their job. But until 2020, “no one had really studied what it meant to be competent to practice law,” says Perini-Abbott. “We have gone well over a hundred years putting our faith in an exam to test competence without actually stepping back and asking, ‘What is competence?’”

Professor Joanna Perini-Abbott is widely recogized as a leader in catalyzing the state and national conversation around licensure reform. Professor Joanna Perini-Abbott is widely recogized as a leader in catalyzing the state and national conversation around licensure reform. That question was thrust to the forefront in the early days of the pandemic, when Perini-Abbott was serving on the Oregon Board of Bar Examiners and the state had to figure out how to administer the bar exam without creating a superspreader event. What Oregon and several other states and the District of Columbia settled on was granting “diploma privilege” to recent grads, allowing them to begin practicing law under supervision after passing an ethics exam but without sitting for the bar exam.

The racial justice protests of 2020 spurred an even deeper reckoning for many law schools and the legal profession at large. Was the bar exam itself a fair test? Did it exclude people who would make good lawyers, but who weren’t skillful test takers? And did the structure of the exam itself make it more challenging for law school graduates who didn’t have the financial means to pay for expensive bar prep courses or study for the bar exam full time without working? The Oregon Supreme Court, urged on by the state’s law schools, asked the Board of Bar Examiners to look at alternative pathways to licensure. Their goals were to find new ways to send competent attorneys out into the world, to diversify the pool of attorneys in the state, and to find ways to rethink licensure so that it tests competency and legal acumen, not just arcane facts.

Perini-Abbott sought out Deborah Jones Merritt, professor emeritus at the Ohio State University Moritz College of Law, who is known for her research into the efficacy of the bar exam as a test for on-the-job competence. There are “all these other things that are important for lawyers to be able to do,” Merritt says, including being able to communicate with clients in a variety of ways and cultivating the skills to counsel clients who are upset because of traumatic life events, such as divorce or the threat of incarceration. “The bar exam as it’s currently constituted just really doesn’t seem to fit with what people actually need to know,” Merritt says.

Her research has also found that the exam disproportionately excludes people of color, people who come from low-income households, people with disabilities who are challenged by test-taking, and those with caretaking responsibilities. It’s one reason why people of color are underrepresented in the legal profession. But it wasn’t until 2021, when the ABA for the first time released numbers that broke down bar exam passage rates by race, that it became clear: The bar exam itself could be one of the major barriers to entry into the legal profession. During the 2020 exams, white test takers were far likelier to pass than those of other races or ethnicities, according to the ABA.

The bar exam itself could be one of the major barriers to entry into the legal profession. During the 2020 exams, white test takers were far likelier to pass than those of other races or ethnicities, according to the ABA.

A Practical Alternative

Sandy Patrick, professor of lawyering at Lewis & Clark Law School, teaches bar exam preparation and classes that help law students cultivate practical skills. She believes the supervised pathway will be a superior measure of competence. It’s not only more equitable, but will encourage more people to pursue legal careers.

“I think we’re going to see that people on this track are going to be even more ready to practice law than people who are taking the bar exam,” Patrick says. “The supervised portfolio approach plays to the strengths of many and does not favor students who can buy more expensive study courses or who can afford not to work during the three months that they are studying for the bar.”

She’s also enthusiastic about a third pathway toward licensure, which the Oregon Supreme Court will consider next. Law students will eventually have a choice to pursue an experiential-based curriculum during law school that allows them to obtain a law license soon after graduation. Legal education is changing and the paths to licensure should change, too, Patrick says.

“When students get out now, employers want students who are ready to start practicing,” Patrick says. “The months or years of mentorship that new attorneys once received is no longer a realistic model, especially if students go into any kind of public interest law. Today’s employers want new law grads to be able to start their jobs with a solid set of skills.”

The law school’s location is also a plus. “As  ‘Portland’s law school,’ we’re able to arrange ample legal opportunities in the city for students to gain experience,” says John Parry, Edward Brunet Professor of Law and associate dean of faculty at the law school. “We really do want our law students to be out in the community learning,” Parry says. “Many of them are already out there, working and gaining skills. Why can’t they be working toward their law license at the same time? After all, the goal is competent practicing attorneys.”

Yet the bar exam is unlikely to disappear anytime soon, in part because it’s more portable—at least for now. Graduates of Oregon law schools who pass the bar exam are eligible for licensure in other states, but the SPPE pathway licenses lawyers to practice only in Oregon. That could shift as other states, including Washington and California, consider similar licensure pathways that allow law school graduates to forgo the bar exam.

Optimism for the Future

“I think we’re at the crest of the wave or at least at the very front part of the wave. But no matter what, the wave of change is coming,” says Perini-Abbott.

Many in Oregon see the new licensure paths as useful recruitment tools, particularly for prosecutors and public defenders. Oregon and other states have struggled in recent years to meet the demand for public defenders, in particular, and a pathway that allows recent graduates to forgo the bar exam to begin working immediately may draw a more diverse mix of lawyers to public interest law. It’s also expected to help place new lawyers in rural areas.

Potential employers are curious about what’s required on their end, as well as how people who choose such a path will be perceived by other legal professionals, says Adrian Tobin Smith, chair of Oregon’s Board of Bar Examiners. There’s no better way to test someone’s competence to practice law than by assessing real-time legal skills, Smith says

“There’s a lot of support for a program that involves real-time mentoring,” Smith says. “Many folks are excited about a pathway that allows individuals to begin work during, if not immediately following, law school.”

Sethi did her research before deciding to pursue the supervised portfolio pathway, including speaking with practicing immigration attorneys. All were supportive, she says. The bar is scary, Sethi says, but she has confidence she could pass it—she has a 4.03 GPA, and high grades are a predictor of successful passage. But skipping it saves her time and money. The firm where she works has already offered her a job and has agreed to supervise her postgraduate work. She can start right away without forgoing income to cram for the July bar exam.

One other major deciding factor? The bar exam itself doesn’t test any knowledge of federal immigration law, Sethi’s focus. So even if she were to take and pass the bar exam, Sethi says, it wouldn’t reflect her competence to represent people in immigration court. But a supervised practice portfolio will demonstrate to the Oregon Board of Bar Examiners that she knows what she’s doing in immigration cases.

“I came to law school with a very specific purpose,” says Sethi. “This new pathway almost felt like it was designed for me or others in my position. It just felt like it was perfect for me.”