New Practice Pathways

Speaker’s Corner From The Practice January/February 2024
A conversation with the Willamette Law dean on licensure reform in Oregon

In November 2023 the Oregon Supreme Court approved a new pathway to becoming a licensed attorney: the Supervised Practice Portfolio Examination (SPPE). Instead of taking the traditional bar exam, law students who hope to practice in Oregon may complete 675 hours of practice under the supervision of an experienced attorney and then submit a portfolio of work to the Board of Bar Examiners. To understand this new licensure pathway, Dana Walters, associate editor of The Practice, spoke to Brian Gallini, dean and professor of law at Willamette Law, about how he got involved in the movement for reform.

Dana Walters: You have been an advocate for licensure reform even before you joined Oregon’s Alternatives to the Bar Exam Task Force. When and how did this become such an important issue for you?

Brian Gallini: Thank you for the opportunity and for the discussion. The question of licensure has been an issue for me for years. Since I began work as a faculty member, I have counseled students who were preparing for the bar, and each year without exception there would be a small handful of those who failed. Within that group, there was always a pocket of examinees who you really felt like, “Boy, they’re going to be good attorneys, but this is holding them back.” That started to prompt me to ask some questions about their experience getting ready for the exam. The more that you talk to examinees who have not passed the bar, you hear them say, “I have a family to care for, so I didn’t have the time. It’s not that I was unwilling.” Or, “I don’t have any source of income, so I had to work.” Those sorts of examples, they are not anomalous.

When I became dean of Willamette Law in 2020, I decided I could use the platform that I have to start encouraging a broad range of stakeholders to think a little bit differently about licensure and to bring life to those stories.

Walters: I’d love to know what the process looked like in terms of you helping to get this alternative off the ground. What were the arguments against the program, and how did you really sway minds?

Gallini: As a point of clarification, I have started to push back heavily against the idea of this as an “alternative,” though I admit I used that term at the outset. What I’ve learned through hundreds of hours of conversation on this topic is that the use of that word does two things: (1) It makes it look like it’s something less than the current bar exam. (2) Somewhat ironically, it lets the current bar exam totally off the hook. It’s sort of like saying, “Well, what we have is just fine. But what we really need to do is create these other things for people who can’t pass what we already have.” As a further irony, the National Conference of Bar Examiners is itself engaged in its own reform through the NextGen exam coming next year, so I now holistically call all of this licensure reform.

The chief objection we heard was that people distrusted whether something new would protect the public.

Brian Gallini, dean of Willamette Law

With that point made, it was 2020 and it was the peak of the pandemic. Across the country people were asking about the upcoming July bar exam, wondering, “Maybe we should think carefully about what it means to put hundreds of people together in close proximity with one another, taking a high-stakes exam.” Oregon was one of five jurisdictions that responded by granting emergency diploma privilege.

In that summer of 2020, the State Supreme Court voted 4-to-3 to grant emergency onetime diploma privilege to graduates of all three Oregon law schools. From that, a couple of months went by, and our then chief justice, Martha Walters, sent a letter to the Board of Bar Examiners saying—and I’m paraphrasing—“This experience has really caused us to wonder if there is something more we should be questioning about licensing attorneys.” And it was a good question given that we saw an increase at all three Oregon law schools in employment rates. We saw an increase in satisfaction from employers because they didn’t have to wait for their hires to begin work; normally, after all, their doing so would be contingent on passing the bar. So those couple things had started to percolate to the top, which led to the chief’s letter, and the Oregon Alternatives to the Bar Exam Task Force was born.

On the task force, the chief objection we heard was that people distrusted whether something new would protect the public. But, if I just simply double-click one subfolder down, so to speak, what’s lying beneath that often is, “Well, I had to do it; you should too.”

What changes people’s minds about the validity of a new licensure assessment is typically unique to them. Attorneys often start by saying, “The bar exam is the way that we measure minimum competence.” Then I’ll say, “But, what exactly are we measuring?” Subsequently, I often will ask, “Do you feel like you were ready to practice law the second you walked across the graduation stage?” That latter question usually really gets to attorneys because they kind of look at me like, “Well, of course not.” Which begs the question, “Why is that OK? Why is it OK that you just spent six figures in tuition and you don’t know how to practice law as a newly licensed lawyer?” To some degree, the bar exam lets law schools off the hook in that regard. I find that positioning the conversation through that reframing often causes critics of reform to look at the bar exam—and legal education— differently.

I calculate sitting for one bar exam at around $29,400.

Brian Gallini

I also talk about how the exam is one of privilege—it favors those who don’t have to work, those who don’t have families to care for, those who have the time to put in because of their life circumstances, and perhaps some candidates even have a job that is paying for their bar prep program and a living stipend. I will also talk about the cost of the bar exam, which is separately funded from or separately financed through bar loans rather than through education loans. Most people are really surprised to hear that.

I have a slide that I use that calculates what I think of as the total cost of the bar exam. It includes your bar provider, the lost wages because of the time you take away from working, the exam fee, character and fitness, the investigation, the laptop fee, then the living expense cost of waiting for the score. I calculate sitting for one bar exam at around $29,400. That often changes people’s minds!

Walters: Under the new program, students must complete 675 hours of supervised practice and submit a portfolio documenting that work. What’s going into that portfolio of supervised practice and how is it being reviewed? And could you talk about why you landed on this approach?

Gallini: To the first point, the portfolio is the work that lawyers do. It’s less a question of what’s the magic bullet work product that a provisional licensee should submit, although the rules do provide for specific textual examples. Rather, it’s about tying the work that lawyers do with the skills that the public should expect newly licensed lawyers to have.

That first point I think is critically important in terms of who reviews it. This is an exam. Each item of the portfolio is reviewed and graded by the Board of Bar Examiners, which is the same body that grades the current bar exam—a point that is often lost in some of the media conversation.

Why this approach? We’re an interesting profession in the sense that I take one bar exam and I’m good for life. We don’t, as doctors do, require recertification exams. As a result lawyers sometimes conflate experience with expertise, and we point to, “Well, I passed this bar.”

Here in Oregon, I think this new pathway gives us the chance to think a little bit differently about the wicked problems of our state, particularly around rural access, immigration, public defense.

Brian Gallini

One of the subnarratives going on in this reform is to tangibly identify minimum competence, but to do it in a way that’s tied just to newly licensed lawyers but not to represent that by passing “this means I’m competent for life.” This is just what we think you should be able to do coming out of law school and being ready to contribute to the profession in your first year. And that’s a slight reframe of the licensure conversation that we’ve had for decades.

Walters: As a follow-up to that, how will you define success in this new initiative? What are you and the state tracking to understand if you’ve succeeded?

Gallini: It’s a good question, although it raises some uncomfortable follow-up questions.

The court was super interested in tracking some of the basics about SPPE, specifically who is going to do this. The grads who raise their hands, as you know, may not just be from Oregon as it’s open to graduates from any ABA-accredited law school. The court, and I think the public generally, is interested in where they will practice. And the subtext of that is the question of whether big firms are really going to hire folks who do this.

Then I think there are some questions around will there be any race-, gender-, or ethnicity-based distinctions in who selects this path? And will the stats reflect the same really alarming stats around who is passing the current exam?

Here in Oregon, I think this new pathway gives us the chance to think a little bit differently about the wicked problems of our state, particularly around rural access, immigration, public defense. I try to talk about these problems as separate from licensure reform, but at this point in our conversation, it does make sense to talk about licensure as a tool to address some of those issues. In other words, we can have a better system of licensure and think about it as a tool to address something like access to justice in rural areas.

I mentioned a moment ago that asking these questions raises some uncomfortable follow-up questions, and I pushed back a little bit when the court brought up the idea of tracking where graduates who pursue SPPE go, not because I’m opposed to tracking all of it. It’s just that we don’t track that sort of data for the current exam. If we’re really serious about launching the SPPE and giving it a fair shake, we should probably be doing the exact same thing with the current bar exam. But again, that’s not how we think. So there will be data tracked at the state level, and we’ll probably rely to some degree on the Institute for the Advancement of the American Legal System (IAALS) for that support. But I don’t see us, unfortunately, doing that tracking for the current bar exam.

[Success]…would be some level of portability, reciprocity, or recognition of passing the SPPE in other states.

For me, success looks like three big-picture things. The first is a shift in the conversation around attorney licensure. And that shift in conversation is to some degree already occurring across other states so that Oregon is not just a one-off. For instance, we see conversations happening in places like Washington, Minnesota, Massachusetts, Maine, South Dakota, North Dakota, and California. So, one metric would be the continuation of that conversation.

The second would be some level of portability, reciprocity, or recognition of passing the SPPE in other states.

The third major measure of success would be making a difference in recruiting in rural areas. I mentioned Oregon has some trouble recruiting attorneys to practice in rural areas, but we are not at all alone. If you look at the data reflecting what happened to lawyers during and after the pandemic, it hit lawyers the hardest in a particular age bracket and in rural geographic areas.

I’ve worried for years that we have been thinking about recruiting attorneys to rural spaces the wrong way. I would like to leverage the SPPE to serve high-need areas by creating a postgraduate fellowship where a new law graduate could go to a high-need area, become licensed, and take that experience into their next job. Creating a post-graduate fellowship that incorporates the SPPE as a pathway to licensure is a new way to think about enhancing rural access.

Walters: I’m wondering how you are thinking licensure reform might affect curricula. Law schools obviously teach subjects that are tested on the bar exam, but then students graduate and still have to spend all this time studying for the bar exam. How will this affect curricula, both at your own institution and more broadly?

Gallini: There’s what we have to do, and then there’s what we can think about doing. What we have to do is make sure that we stand up a curriculum that matches what the court has said students are required to take in order to be eligible to pursue SPPE. As a law school, we’ve already done that.

The second piece of doing what we have to do is standing up a curriculum that we can offer to graduates, both our own and from other law schools, for classes that they didn’t take during law school but that they will need to pursue SPPE. We launched something that we call “JD for Life” that will address this need, and it’s open to graduates across the country. If students are missing a course that they would need as a prerequisite to pursuing the SPPE, they can come take that missing course with us.

We’ve been spending a lot of time strengthening current experiential offerings on a more regularized basis as well as encouraging and incentivizing faculty to build out more experiential offerings.

Brian Gallini

Beyond that, we get to start thinking a little bit more about bringing the skills that will be examined by the Board of Bar Examiners for the SPPE into the law classroom. It doesn’t mean that you get to stop, nor should you stop, teaching the more traditional bar-related classes. The SPPE does not disrupt the current bar exam. But we need to think with intention about stable buckets of courses that are reverse-engineered to teach the skills that will be tested in the SPPE.

In law schools, that means investing more into experiential learning, including clinics, externships, and simulation learning. We’ve been spending a lot of time strengthening current experiential offerings on a more regularized basis as well as encouraging and incentivizing faculty to build out more experiential offerings.

As a practical matter, simulation classes mean rethinking how classes are offered. Take me for an example. I teach Criminal Procedure II where we talk a lot about guilty pleas. If I did that as a true bar class, I could have, say, 100 or more students. Practically speaking, it wouldn’t matter how many students enroll in that class until it’s time to grade exams, because we could just have a Socratic dialogue about the constitutional requirements for a guilty plea. That’s the way we’ve done it in law schools for a long time, and we could keep doing that. And there’s value in doing so.

But in a simulation world, I might have a mock case file. I’d separate the class into those who represent the prosecution and those who represent the defense. I would assign the readings underlying the minimum constitutional standards for a guilty plea. And then they would go off and negotiate the plea, appear before me acting as judge, and appear at a particular time. They would then be graded on the relative success of their plea against the balance of their classmates.  That’s just an example, but you can imagine applying that example to other classes in the curriculum.

I mentioned the number of students intentionally because, wearing my dean hat, it’s much more cost-effective to put 100+ in my Crim Pro II podium-style class. But by contrast, we have to think carefully about how to deploy or redeploy faculty resources in a simulation learning course. I think 20 is probably the right number for that class—it’s more students than we would enroll in a clinic, but fewer than in a traditional podium classroom.

Walters: Maybe just to tie it all off: Why did this happen in Oregon? Why is Oregon ready for this? What should other lawyers, whether elsewhere in the United States or internationally, take away from Oregon leading on this issue?

There was a willingness to think a little bit differently about how to serve Oregonians. And reforming attorney licensure is perhaps one way of thinking about doing so.

Brian Gallini

Gallini: I think the credit overwhelmingly has to go to the Oregon Supreme Court. After all, none of this is possible were it not for their willingness, back in 2020, to be forward-thinking and say, “Maybe there is something other than the bar exam. We don’t know what it is, but go figure that out.”

As for why Oregon? I think, and now I’m entering more speculation mode, the subtext of what’s been happening here locally in the state matters. For instance, we have a strong commitment to providing legal representation in immigration issues. Through what’s called “universal representation,” we are one of the few states that says, if you can’t afford a lawyer and have an immigration-related legal issue, the state will provide one. Having that commitment to providing counsel of course provides a need to in fact make attorneys available to fulfill that commitment.

But we’re also in the middle of a public defense crisis. So between those two major issues, I think there was a willingness to think a little bit differently about how to serve Oregonians. And reforming attorney licensure is perhaps one way of thinking about doing so.

Now, in terms of what people should take away, whether here in the United States or internationally, the takeaway is that there is a better way of licensing attorneys. Doing so, however, starts with having a conversation about doing things differently.

In my view, one of the hardest things about accomplishing meaningful reform to attorney licensure is getting people to a place where they will think about a different approach. As a profession, we’re so wedded to doing it the way we’ve always done it. That’s what I would hope the legacy of this initiative will do for others, to give them something to point to, to say, “OK, we’re not the first. Here’s some other state that’s thought about this and was willing to do it differently. Maybe we should be too.”

Brian Gallini is dean and professor of law at the College of Law at Willamette University.