Diploma Privilege for NY Forum

[JoeSeperac]

I am re-posting part of an email I recently received. Anyone registered to take the J20 NY exam should take a minute to sign the letter and share the link.

Senator Hoylman, Chair of the Judiciary Committee, introduced legislation to the NY State Senate to provide 2020 grads with diploma privilege. The Senator emphasized the public health needs which require diploma privilege, as the exam could be deadly to immunocompromised students. If New York were to adopt emergency diploma privilege, it would be the fourth state to do so, after Washington, Oregon, and Utah.

At this time, the UDP- NY coalition is asking you to sign onto a letter to the Court of Appeals asking for a hearing on the matter, and circulate it amongst your networks. The letter can be found here.

https://docs.google.com/forms/d/e/1FAIp ... w/viewform

[cwoodson9]

Switching to diploma privilege is an awful idea, and will flood the state with a glut of new lawyers at a time hiring is as tough as it is.

There's no reason NY can't have an online exam like CA is doing. It's not ideal but it's far better than just letting 2020 grads become lawyers without having to pass a test every other practicing attorney passed.

[Dahl]

It does seem like an online exam is both more fair and would help limit the number of grads vying for jobs in a particular area. I understand why 2020 grads would want diploma privilege instead, but having to compete against the entire nation of graduates for jobs would really hinder anyone who doesn't already have an offer.

There's no solution that is entirely fair though, and I feel for this year's graduates.

[CPA-->JD]

Switching to diploma privilege is an awful idea, and will flood the state with a glut of new lawyers at a time hiring is as tough as it is.

Are you really worried about losing a job offer to someone who would have otherwise failed the bar? 10k grads shouldn't be able to start because of that? I would think employers are able to discern who is likely to fail when they make offers of employment, irrespective of whether or not the exam is actually taken.

[replevin123]

Yeah. Doesn't the market solve this? That's why people try to go to good schools, get good grades, develop a reputation. You're not really in competition with the bottom of the barrel unless you are too or you're going to very small law firm for peanuts or trying to go out on your own. It's protectionism, plain and simple.

[Chaucer1343]

If they give diploma privilege to 2020 grads in NY, it should be applied to every US legal diploma-holding person. What about established attorneys in other jurisdictions who were planning to take the NY bar exam in Fall 2020? We all should receive diploma privilege.

[Anonymous User]

If they give diploma privilege to 2020 grads in NY, it should be applied to every US legal diploma-holding person. What about established attorneys in other jurisdictions who were planning to take the NY bar exam in Fall 2020? We all should receive diploma privilege.

Agreed, thanks for mentioning this. I completely understand why the focus is (and has been) on 2020 grads, but I’m licensed in CA and moved to NY and just wish there was more clarity on what I’m supposed to do. I was going to take the July 2020 exam, couldn’t even register for September so have been planning on Feb. Now I’ll potentially get bumped from Feb if there aren’t enough seats OR if there’s an online one in October, I’ll have to scramble to get time off to study because I wasn’t expecting to have to take it until Feb.

I wish all states could agree to waive in practicing, licensed out of state attorneys for 2020. It seems a small exception to give that shouldn’t cause extreme heartburn given that that group has passed a bar exam before.

[JoeSeperac]

In my opinion, diploma privilege might be the best alternative, although if they authorize it, it will likely apply only to first-time takers. The biggest concern with "emergency diploma privilege" is that it will allow some first-timers who would normally fail to pass. However, if you crunch the numbers, it's really not that significant. In July 2019, about 3,000 first-timers from NY law schools took the exam. Their overall pass rate was about 85%.



As a result, about 450 examinees who normally would have failed now become NY lawyers through emergency diploma privilege. However, many of these failers subsequently pass. NCBE released a study in 2007 after New York increased the passing score to 665 in 2005 in order to determine its impact. The study found that if you are a domestic-educated candidate taking the New York bar exam for the first time, there is a 94.7% chance that you will pass by your third attempt.This means in the grand scheme of things, "emergency diploma privilege" is theoretically allowing only about 150 "unqualified" 2020 graduates to practice.

However, an online bar exam could create even more "unqualified" candidates than diploma privilege. First. the online exam would likely be 1-day (this is what NJ, MA, DC, etc are doing). Fewer graded questions means lower reliability, which means you are less likely to be consistent in your exam score. The examinees who benefit most from this are the ones with lower-ability. For example, if you are playing someone in 1-on-1 basketball, the weaker player is better off agreeing to a short game against a stronger player (e.g. 7 points to win) because the weaker player has a better chance of getting lucky and winning. Conversely, if you are the stronger player, you want to agree to a longer game (e.g. 21 points to win) to give yourself the best chance at winning (because the longer the game, the more opportunities you have to demonstrate your higher-ability). With a shorter exam, more lower-ability examinees will slip through the cracks.

Secondly, there will be problems with the online exam. Some examinees will lose their internet while others will have the software crash and not work. This happens all the time during the actual exam, but there won't be an examsoft tech to come fix it at your house. This means some otherwise qualified examinees may fail for reasons outside of their control. It's also possible the lowest-ability examinees will find a way to cheat. I am sure there are many other factors I haven't even considered that will negatively impact this online exam.

On balance, with emergency diploma privilege, some "unqualified" examinees will become licensed, but every qualified examinee will also be licensed. Conversely, with an on-line exam, some "unqualified" examinees will become licensed while some qualified examinees will likely not become licensed. In the end, diploma privilege should produce the better overall outcome. FYI, bar review is my bread and butter (I tutor and offer subscription modules), but emergency diploma privilege is the right call here.

[Dahl]

Would diploma privilege somehow be limited to people who would have taken the Bar though? I would think a bigger cause of concern is the number of out of state graduates who would want a NY license who would not have taken the test otherwise. Would there be some mechanism for restricting this?

I am sure a lot of people are concerned that allowing DP this year means there would be a greater movement towards allowing it every year going forward. I’m not against that but our market is already flooded. If they’re going to do away with the Bar I wish the movement to limit the amount of law schools nationwide would gain traction. Haven’t seen much movement there since I graduated back in 2010z

[Anonymous User]

In my opinion, diploma privilege might be the best alternative, although if they authorize it, it will likely apply only to first-time takers. The biggest concern with "emergency diploma privilege" is that it will allow some first-timers who would normally fail to pass. However, if you crunch the numbers, it's really not that significant. In July 2019, about 3,000 first-timers from NY law schools took the exam. Their overall pass rate was about 85%.



As a result, about 450 examinees who normally would have failed now become NY lawyers through emergency diploma privilege. However, many of these failers subsequently pass. NCBE released a study in 2007 after New York increased the passing score to 665 in 2005 in order to determine its impact. The study found that if you are a domestic-educated candidate taking the New York bar exam for the first time, there is a 94.7% chance that you will pass by your third attempt.This means in the grand scheme of things, "emergency diploma privilege" is theoretically allowing only about 150 "unqualified" 2020 graduates to practice.

However, an online bar exam could create even more "unqualified" candidates than diploma privilege. First. the online exam would likely be 1-day (this is what NJ, MA, DC, etc are doing). Fewer graded questions means lower reliability, which means you are less likely to be consistent in your exam score. The examinees who benefit most from this are the ones with lower-ability. For example, if you are playing someone in 1-on-1 basketball, the weaker player is better off agreeing to a short game against a stronger player (e.g. 7 points to win) because the weaker player has a better chance of getting lucky and winning. Conversely, if you are the stronger player, you want to agree to a longer game (e.g. 21 points to win) to give yourself the best chance at winning (because the longer the game, the more opportunities you have to demonstrate your higher-ability). With a shorter exam, more lower-ability examinees will slip through the cracks.

Secondly, there will be problems with the online exam. Some examinees will lose their internet while others will have the software crash and not work. This happens all the time during the actual exam, but there won't be an examsoft tech to come fix it at your house. This means some otherwise qualified examinees may fail for reasons outside of their control. It's also possible the lowest-ability examinees will find a way to cheat. I am sure there are many other factors I haven't even considered that will negatively impact this online exam.

On balance, with emergency diploma privilege, some "unqualified" examinees will become licensed, but every qualified examinee will also be licensed. Conversely, with an on-line exam, some "unqualified" examinees will become licensed while some qualified examinees will likely not become licensed. In the end, diploma privilege should produce the better overall outcome. FYI, bar review is my bread and butter (I tutor and offer subscription modules), but emergency diploma privilege is the right call here.

When you say “it will likely only apply to first time takers” are you thinking first time takers of the NY exam or any exam? It just seems so silly to me that I might be required to sit for the exam (T6 grad, passed CA exam the first time, continuously practicing in big law for over 7 years), but allowing diploma privilege for 2020 grads.

[JoeSeperac]

When NYBOLE proposed the September exam, it had made accommodations for graduates from NY law schools to take the exam at their respective schools but didn't allow for similar accommodations for graduates from non-NY law schools like Georgetown. Thus, NYBOLE has already exhibited behavior that's partial to graduates from NY. I would expect emergency diploma privilege to be no different. However, please take what I am saying with a grain of salt, because I genuinely have no clue what NYBOLE will do.

The bar exam allows for economic protectionism, so I don't expect it to go away. For example, long ago, one examinee scored a 31.69 on the MPT on the July 2010 NY bar exam. His MPT score was in the bottom 8% of MPT scores sent to me by July 2010 examinees and it was the reason he failed the exam. The examinee joked that "NY BOLE must not be able to read my hand-writing." He then explained to me that he had been a practicing trial attorney in Florida for the past 32 years. How does a practicing attorney who has undoubtedly handled thousands of "lawyer" tasks did worse than 90% of the examinees on a component of the exam that tests your ability to do the kinds of things that lawyers do? This examinee was undoubtedly qualified to be a NY lawyer, but fell victim to the whims of the bar exam. The obvious solution is reciprocity between Florida and NY, but Florida doesn't want reciprocity in order to protect its bar from a huge influx NY snowbirds.

[Anonymous User]

When NYBOLE proposed the September exam, it had made accommodations for graduates from NY law schools to take the exam at their respective schools but didn't allow for similar accommodations for graduates from non-NY law schools like Georgetown. Thus, NYBOLE has already exhibited behavior that's partial to graduates from NY. I would expect emergency diploma privilege to be no different. However, please take what I am saying with a grain of salt, because I genuinely have no clue what NYBOLE will do.

The bar exam allows for economic protectionism, so I don't expect it to go away. For example, long ago, one examinee scored a 31.69 on the MPT on the July 2010 NY bar exam. His MPT score was in the bottom 8% of MPT scores sent to me by July 2010 examinees and it was the reason he failed the exam. The examinee joked that "NY BOLE must not be able to read my hand-writing." He then explained to me that he had been a practicing trial attorney in Florida for the past 32 years. How does a practicing attorney who has undoubtedly handled thousands of "lawyer" tasks did worse than 90% of the examinees on a component of the exam that tests your ability to do the kinds of things that lawyers do? This examinee was undoubtedly qualified to be a NY lawyer, but fell victim to the whims of the bar exam. The obvious solution is reciprocity between Florida and NY, but Florida doesn't want reciprocity in order to protect its bar from a huge influx NY snowbirds.

So do you think they’ll only give diploma privilege for those who graduated from NY law schools? I’m just trying to get a sense of the scope you are thinking of. My point was mainly that if they grant diploma privilege to a 2020 grad from my very same law school, it doesn’t seem to make sense that I still have to sit for it to practice here.

[JoeSeperac]

In July 2019, there were 7,922 first time examinees taking the NY bar exam. About 3,000 were from NY ABA Law Schools, 2,500 were from Out of State ABA Law Schools and about 2,400 were Foreign Educated. The examinees from NY ABA Law Schools and Out of State ABA Law Schools had a similar pass rate of about 85-87% The Foreign educated first-time takers had a pass rate of 53%. The remaining 2,200 J19 takers were repeaters who had an overall pass rate of 24%.

Based on the pass rates, it seems very unlikely Foreign educated first-time takers would receive emergency diploma privilege and it's almost a certainty that retakers wouldn't receive it. Since the pass rates for in-state and out-of-state first timers are very close, it seems logical to grant diploma privilege to both. However, the fact that NYBOLE acted protectionistic earlier by permitting NY law schools to provide rooms/proctors to take the exam, but not allowing out-of-state schools like Georgetown to do the same, ignoring any potential constitutional issues, I have to wonder if NYBOLE will be likewise protectionistic with diploma privilege. It really is anybody's guess.

[Anonymous User]

In July 2019, there were 7,922 first time examinees taking the NY bar exam. About 3,000 were from NY ABA Law Schools, 2,500 were from Out of State ABA Law Schools and about 2,400 were Foreign Educated. The examinees from NY ABA Law Schools and Out of State ABA Law Schools had a similar pass rate of about 85-87% The Foreign educated first-time takers had a pass rate of 53%. The remaining 2,200 J19 takers were repeaters who had an overall pass rate of 24%.

Based on the pass rates, it seems very unlikely Foreign educated first-time takers would receive emergency diploma privilege and it's almost a certainty that retakers wouldn't receive it. Since the pass rates for in-state and out-of-state first timers are very close, it seems logical to grant diploma privilege to both. However, the fact that NYBOLE acted protectionistic earlier by permitting NY law schools to provide rooms/proctors to take the exam, but not allowing out-of-state schools like Georgetown to do the same, ignoring any potential constitutional issues, I have to wonder if NYBOLE will be likewise protectionistic with diploma privilege. It really is anybody's guess.

Thanks for all the insight! Always interesting to hear your thoughts.

[tea_bag]

It was my impression that the "foreign-educated 53% passage rate" is the percentage of candidates whose legal education was wholly obtained in foreign countries covering laws of foreign jurisdictions.

The pass rate for LLM grads of US ABA-accredited law schools have never been separately announced by BOLE, but it is possible they are just mixed in with the JD grad numbers due to practicality (https://www.americanbar.org/content/dam ... -final.pdf)

[AsterixMan57]

Diploma privilege is a load of nonsense and will fail because every profession of consequence, and particularly one that can be as costly and ruin lives from mispractice as law, maintains a degree of state-level government testing/certification.

[JoeSeperac]

It was my impression that the "foreign-educated 53% passage rate" is the percentage of candidates whose legal education was wholly obtained in foreign countries covering laws of foreign jurisdictions.

The pass rate for LLM grads of US ABA-accredited law schools have never been separately announced by BOLE, but it is possible they are just mixed in with the JD grad numbers due to practicality (https://www.americanbar.org/content/dam ... -final.pdf)

Good point. I presume NY classifies a foreign LLM as Foreign Educated, but I could be wrong. The question becomes whether LLMs are considered "graduates of out-of-state ABA-approved law schools"

https://www.nybarexam.org/press/Press%2 ... arExam.pdf

[nixy]

Diploma privilege is a load of nonsense and will fail because every profession of consequence, and particularly one that can be as costly and ruin lives from mispractice as law, maintains a degree of state-level government testing/certification.

hahahahahahahaha

(wait was this not sarcasm)