Because it's becoming a more popular option as more bar examiners flounder, we need put this out there: provisional practice is not the answer to bar exam woes. Here's why:

I feel like I shouldn't have to say this, but people seem to be forgetting in the rush to assume provisional practice will be the Big Fix: legal employers are businesses. They like to make money. They do not like to spend money.

It's not realistic to expect employers will line up to pay attorney salary to people who are not attorneys! Even if, for all intents and purposes, they can do the same thing as an attorney.

Why not? Because they don't want to, and they don't have to.

Provisional practice rules already exists, and these employers already benefit from them. Law students practice as clerks, interns, externs, student practitioners, etc. ALL THE TIME. Employers benefit because they can pay peanuts or NOTHING AT ALL for them to do this.

So if you were an employer:

Would you rather pay an attorney's salary to a 2020 grad, or would you rather pay a law clerk's salary to someone with nearly the same level of experience and the exact same level of authority.

Or this scenario: imagine you're an employer choosing between a 2019 grad, already barred, and a 2020 grad. In an ordinary year, you'd see them as roughly equal.

But this year, you're choosing between a candidate that's ready to go and a candidate that may not be barred for a year, two years, etc. How does that not play into your hiring decision?

If you're merciful and hire the 2020 grad anyway, how does that not play into your decision about their salary?

And this doesn't just go for those people (it me) still applying to jobs. It goes for those who already have them. Despite NY's provisional practice rule, employers there have pulled offers. And I've heard of this pretty much everywhere. https://twitter.com/YPractitioners/status/1284211505408479233?s=20

And those who keep their offers/jobs will still be impacted. I would not be shocked if we see employers looking for ways to drop salaries down because of lack of licensure.

I also think it's not uncommon for folks to get bonuses or salary bumps once they're licensed. Those obviously won't be coming as planned with provisional licensure.

And none of this even accounts for the impact this will have on employers who do the right thing and hire 2020 bar applicants anyway.

Provisional practice works best for certain employers–– generally, big firms. Those firms have robust supervision structures already in place. Nothing a first year associate says, does, THINKS is going anywhere without multiple other sets of eyes on it anyway.

But other employers–– smaller firms, non-profits, PD's offices, etc. can't offer the level of supervision that some of these provisional practice programs may require. These less-resourced employers rely on their first years to be able to act with the full authority of attorneys.

That's why a lot of them don't even hire until after folks have taken the bar anyway.

Supervision issues aside, there are also logistical issues for employers with students having to take the bar later.

Employers are going to have to accept that they're hiring people who, at some point in the future, will have multiple months where they have to pull back at work to study. And likely at least a couple weeks where they are just out of the office entirely.

Especially annoying for employers who hire in classes and will feel this effect multiplied by however many members of this year's "class" they employ.

They also have to accept that, because studying while working is HARD, there is a much greater than normal likelihood that the people they have hired will fail the exam. Then they have to figure out what they're going do about that.

Of course, none of this even touches on how unfair it is to ask people who have spent all summer studying and preparing for this exam to essentially forfeit that work and do it all over again in a year, while juggling work, family, etc. responsibilities.

Anyway, there are definitely things I've missed here, I'm sure, but it's really clear that, "Eh let's just deal with it all later" is not the solution we're being told it is.