Addressing the Access-to-Justice Gap: A Persistent Challenge That Calls for Multiple Approaches

By Hon. Ann A. Scott Timmer and Nicole Seder Cantelme; Hon. Donna J. Mowrer and Hon. Erin B. O’Connell; Ashton Bias Harrell; and Justin P. Forkner

When a community’s members struggle to access affordable legal services, it undercuts ideas that form the foundation of the US legal system. Yet legal deserts exist throughout this country and are especially prevalent in its rural and otherwise underserved areas. This feature explores approaches in four jurisdictions—Arizona, New Mexico, West Virginia, and Indiana—to tackle this complex problem. There may not be a one-size-fits-all solution, but the ideas presented below can hopefully help spur discussions about employing similar efforts in additional jurisdictions.

Arizona Supreme Court Launches Innovative Arizona Lawyer Apprentice Program to Provide a New Pathway to Licensure While Addressing Legal Deserts

By Hon. Ann A. Scott Timmer and Nicole Seder Cantelme

On July 17, 2024, the Arizona Supreme Court unveiled the Arizona Lawyer Apprentice Program (ALAP) to create a new pathway to bar admission. The ALAP was born from two circumstances. First, each year many aspiring Arizona attorneys fall just short of passing the Uniform Bar Examination (UBE) under Arizona’s passing score of 270. Psychometricians tell us that no one magical passing score exists to differentiate a qualified candidate from an unqualified one. Thus, when candidates fail the UBE by a slim margin, the Court is left wondering whether these candidates are nevertheless qualified to practice law. Rather than requiring these candidates to retake the exam months later, which can be stressful and financially costly, the Court wanted to give them an alternate route to licensure. Second, Arizona, like many jurisdictions, has a pressing need for attorneys in underserved communities and in public law offices across the state. It was a natural fit to structure the alternate route for bar licensure to help rectify this problem.

A New Pathway to Legal Practice

Currently, candidates must score at least 270 on the Uniform Bar Examination (UBE) to practice law in Arizona. The ALAP allows those whose UBE scores land between 260 and 269 to practice law under the supervision of a qualified Arizona attorney.1 Candidates who participate in the program must commit to working for at least two years in rural areas or within public law firms. Upon successful completion of this two-year period, ALAP practitioners are fully admitted to practice law in Arizona without having to retake the bar exam.

Addressing the Legal Desert

Arizona is often, and with no little irony, described as a “legal desert,” with a significant shortage of lawyers relative to its population. According to the American Bar Association, the national average is four lawyers per 1,000 residents, while Arizona has only about two lawyers per 1,000 residents. Unsurprisingly, this shortage is particularly acute in rural areas, where residents frequently face difficulties accessing legal representation.

Many factors contribute to Arizona’s legal desert. One may be that Arizona’s UBE passing score of 270 disqualifies many aspiring attorneys who want to practice in Arizona. This requirement has led many homegrown Arizonans to seek admission in neighboring states with lower passing scores, such as New Mexico and Utah. The ALAP addresses this issue by providing a viable alternative for those who are committed to serving in underserved areas, thereby retaining more lawyers within the state.

Program Eligibility and Requirements

To qualify for the ALAP, candidates must meet several criteria:

1. Achieve a UBE score between 260 and 269 on exams administered after July 1, 2023.
2. Hold a JD degree from an ABA-accredited law school.
3. Satisfy the requirements for admission to the practice of law under Arizona Supreme Court Rules 34 and 35(b)(6) and (8).
4. Undergo a criminal background check.
5. Secure employment with a qualified public law employer or a supervising attorney in a rural area within 12 months of September 1, 2024, or from their UBE score notification date, whichever is later. Employment must involve at least 30 hours of paid work per week.
6. Commit to at least two years of service in rural or public law practices.
7. Adhere to ALAP supervision requirements.

The program is currently open to those who took the UBE in July 2023, February 2024, or July 2024. This inclusive approach provides immediate relief to areas in need while fostering long-term retention of legal talent within Arizona.

Structured Supervision and Support

ALAP participants will practice under the mentorship of an experienced Arizona attorney for 24 months. This structured super­vision will gradually diminish over time, ensuring that participants gain comprehensive legal experience while protecting client interests. Supervising attorneys must be in good standing with the State Bar of Arizona and have at least five years of legal experience.

Benefits for Rural and Public Law Employers

The ALAP is designed to be mutually beneficial for both aspiring attorneys and employers. Public law firms and rural practices are encouraged to offer competitive salaries and benefits, similar to those of first-year fully licensed attorneys, to attract and retain these new lawyers. ALAP practitioners are expected to ease caseload pressures and enhance legal service delivery in underserved areas.

Pathway to Full Admission

Upon completing the program, ALAP participants must meet all supervision and continuing legal education requirements. They will then be recommended for full admission to the State Bar of Arizona. This recommendation will be based on evaluations from supervising attorneys and endorsements from judges or other attorneys familiar with the participant’s work.

The ALAP is not intended to be an easier path to licensure. Nor does the Court deem participants as less capable than their peers who achieved a passing score on the UBE. Instead, the ALAP is simply an alternate way to demonstrate one’s qualifications to practice law in Arizona.

A Step Toward Greater Justice

The Court anticipates that the ALAP will both (1) ensure that all qualified candidates can achieve licensure in Arizona without needing to take multiple exams; and (2) assist in closing the access-to-­justice-gap in Arizona. By providing a structured path to legal practice for those committed to serving underserved communities, the program aims to improve access to legal services and support the overall health of Arizona’s legal system. The Court also hopes the ALAP will inspire similar programs in other states, potentially contributing to a broader movement toward enhancing access to justice nationwide.

This innovative program underscores the Arizona Supreme Court’s dedication to ensuring that all aspiring attorneys have a sufficient opportunity to demonstrate their qualifications and that residents, regardless of their location, have access to quality legal representation.

The ALAP began accepting applications on September 1, 2024. For more information about the program and how to apply, visit the ALAP website.

Greening New Mexico’s Legal Deserts with the Rural Justice Initiative

By Hon. Donna J. Mowrer and Hon. Erin B. O’Connell

To help address the growing shortage of attorneys in rural New Mexico, the New Mexico Rural Justice Initiative (RJI) was born in 2019. Led by Chief Judge Donna J. Mowrer, the RJI Committee, under the New Mexico Supreme Court, developed a comprehensive plan to begin greening New Mexico’s “legal deserts.”

New Mexico is the fifth-largest US state geographically and ranks 46th in population density, with just over 2.1 million residents. There are approximately 5,000 attorneys practicing in New Mexico, and most opt to practice along the Rio Grande corridor running between Santa Fe and Las Cruces. This leaves vast swatches of the state without adequate access to legal providers. Of New Mexico’s 33 counties, four do not have a single practicing lawyer, and more than one-third have 11 or fewer attorneys.

Understood another way, of the approximately 5,000 lawyers in practice, 4,500 of them work in three counties with the bigger cities: Bernalillo County (Albuquerque), Santa Fe County (Santa Fe), and Dona Ana County (Las Cruces). The other 30 counties, constituting the bulk of New Mexico’s enormous land mass, have few to no attorneys in active practice. The problem worsens further when governmental service is factored into the picture. Rural attorneys are often employed by city, county, state, and federal entities as judges, public defenders, prosecutors, agency attorneys, and so on.

When faced with a legal issue, citizens and businesses in rural New Mexico often confront a tough choice: go without an attorney or pay an out-of-town attorney and incur not only travel costs for the attorney to attend proceedings, but also incur travel costs for the litigant to meet with the attorney. Having attorneys in rural communities provides access to justice, spurs economic growth, and ensures the continued development of the supports necessary to sustain communities.

With this background in mind, the RJI Committee developed and proposed a plan to reduce the access-to-justice gap many New Mexicans face by providing for the retention and expansion of legal services in rural areas. The RJI is a three-phased plan for recruiting and retaining attorneys: (1) Rural Judicial Externships, (2) Rural Practice Externships, and (3) the Rural Practice Incubator. The overarching goal is to allow students or recent law school graduates the time and opportunity to get to know and understand the local community and bar, and envision a life and practice in the area.

Phase 1: Rural Justice Externship

Phase 1 is a 10-week program open to those who have completed their first year of law school, in which the students work 40-hour weeks with a judge as a law clerk. Students will have the opportunity to observe court hearings, review pleadings, and prepare memoranda. They will attend community meetings and functions with their mentor judge, meet local attorneys, and be introduced to other community members, who will share with students the benefits of building a life and career there. Mentor judges will work to connect students to business, political, educational, and civic leaders. Students will receive three hours of externship credit (the RJI committee hopes to work with the University of Mexico School of Law and other law schools on this front), a stipend of approximately $7,000, and free housing during the 10-week program.

Phase 2: Rural Practice Externship

Phase 2 is also a 10-week program, open to students who have completed their second year of law school. It is designed to have students practicing in the community. Students have the option to work with a local district attorney (DA) office, public defender (PD) office, legal aid office, or with a local private practitioner or firm. Those working under the DA, PD, or legal aid offices will be able to appear in court under the supervision of a local attorney and handle small cases, or assist with larger cases, as permitted under New Mexico’s law-student practice rule. The lawyer(s) overseeing a student will facilitate their understanding of the practice of law and law-practice management, including research and writing from the practice perspective. The mentor lawyer or firm will introduce students to the local community and bar, like what is expected of the mentor judge in Phase 1. Students will receive three hours of externship credit, a stipend of approximately $7,000, and free housing during the 10-week program.

Phase 3: Rural Practice Incubator

Phase 3 is open to law school graduates and builds on the Rural Practice Externship. This phase requires lawyers licensed in New Mexico to be willing to serve the community and commit to a rural practice for a minimum of five years. This commitment involves work in an underserved community in private practice, and allows lawyers to open their own firm, affiliate with a local firm, or affiliate with a firm from another city to open a branch in the local community run by a RJI lawyer. Lawyers will be required to provide a certain amount, to be determined, of services at a reduced cost. The Incubator will provide a stipend at the end of each full of year of service over the five-year period: year 1, $10,000; year 2, $15,000; year 3, $20,000; year 4, $25,000; and year 5, $30,000. This phase gives attorneys the opportunity to become rooted in New Mexico’s rural and underserved communities around the state. The funding is intended to facilitate the attorney’s law practice, allowing the lawyer time to become established as a welcomed member of the local bar and community, with the stipend structure encouraging a lawyer’s long-term commitment.

A modified form of the first phase of the program, the Rural Justice Externship, is currently underway. In 2022, the judiciary received legislative funding to begin the RJI, which resulted in an in-progress clerkship program in which students work for a rural trial judge. Similar to traditional clerkships, law graduates will make a two-year commitment and receive a salary. Although structured as a clerkship, the mentor judge will ensure that the focus is as intended by the Rural Justice Externship, which is community integration. Two judicial districts are piloting two-year clerkships for law school graduates, and legislative funding will be sought going forward to fund all phases of the program.

New Mexico’s rural communities have a wide range of legal needs and the financial ability to pay for services. But rural community members and small businesses often find themselves turning to the larger cities for their civil legal needs. Local legal services, however, are in demand and play a crucial role in maintaining the health of smaller communities. Local attorneys rooted in the communities they serve are well situated to understand the cultural nuances and unique socioeconomic dynamics prevalent in their area. Community connections allow for more personalized and contextually relevant legal advice, build trust, and support local jobs and economic development. The RJI was developed to facilitate essential legal services in New Mexico, which contributes to the economic and social vitality of this diverse, culturally rich state.

An Old Rule’s Modern Impact: How Rule 9 Helps Expand Access to Justice in West Virginia and Provide an Alternative Pathway to Licensure

By Ashton Bias HarrellThis article is based on the author’s presentation at the 2024 NCBE Annual Bar Admissions Conference held on May 2–5, 2024, in Chicago, Illinois.

Access to justice is the cornerstone of a fair and equitable legal system. However, for many individuals, especially those in underserved communities, getting legal assistance remains a significant challenge. It is no secret that legal deserts loom large, casting a shadow over justice in rural America. As former American Bar Association (ABA) President Judy Perry-Martinez has said, “Nearly every state in the nation has large stretches of rural areas and counties with few lawyers in them.”1 In West Virginia, we see the challenges rural attorneys confront, the strain on our legal aid and public defender offices, and a decline in the number of lawyers in our small towns. Amid these challenges, a beacon of hope emerged: Rule 9 of the West Virginia Rules for Admission to the Practice of Law.2

Originally established in 1989, Rule 9’s relevance in today’s legal landscape could not have been predicted. Yet it has emerged as an asset in addressing today’s challenges within our legal community. Rule 9 grants limited permission to practice law in West Virginia to individuals licensed in another US jurisdiction who are employed by Legal Aid of West Virginia, the Public Defender’s Office, or Mountain State Justice. This rule encourages attorneys to offer legal representation to indigent individuals while also providing an alternative licensure pathway for applicants. By incentivizing attorneys to participate in such programs, the rule not only benefits legal professionals but also aids many who would not otherwise be represented.

Attracting and retaining lawyers in rural areas has become increasingly difficult nationwide, and West Virginia is no exception. Depending on the jurisdiction, applicants taking the bar exam must receive a minimum score of 260 to 270 to pass the Uniform Bar Examination (UBE). In West Virginia, aspiring lawyers must achieve a score of 270 or higher to be eligible to practice law. If an individual takes the West Virginia bar exam but falls short of the required score, they can seek admission in another UBE jurisdiction where their score meets requirements. Once the individual is admitted there, they can then apply for admission to practice law in West Virginia under Rule 9 if they have received an offer of employment from one of the approved Rule 9 agencies. This rule not only aids in recruiting attorneys and enhancing access to justice; it also offers an opportunity for attorneys to use their expertise in our state. Perhaps the most advantageous aspect of Rule 9 for these individuals is that, after five years of maintaining good standing, these attorneys are eligible to apply for admission under reciprocity, thus attaining full legal licensure in West Virginia.

The board sees Rule 9 as a legitimate pathway for attorneys to demonstrate their abilities under proper supervision. Moreover, it serves as recognition for those who choose to contribute their expertise to agencies dedicated to enhancing access to justice within our state. To qualify under Rule 9, applicants must file a complete application with the board, along with a certificate of good standing and a statement confirming their association with the relevant legal services or public defender program. The board closely monitors Rule 9 admittees to ensure compliance with professional standards, regularly conducting checks to verify employment status, good standing within the jurisdiction of licensure, absence of disciplinary actions, and adherence to ethical guidelines. Jurisdiction administrators maintain communication with admittees and their supervisors throughout the Rule 9 work period to ensure everything runs smoothly and no problems arise. Admittees may pursue full admission through reciprocity once they meet the necessary requirements. Upon full admission, the specific oversight related to Rule 9 concludes.

In essence, Rule 9 presents a win-win scenario for all parties involved. Applicants not only gain a pathway to practice law in West Virginia but also get access to valuable mentorship opportunities, generous employment benefits, and the potential for reciprocity after five years of active practice. Concurrently, the state benefits from enhanced access to justice for indigent individuals, streamlined recruitment of attorneys, strengthened program staffing, and the provision of an alternative licensure pathway. Moreover, the few issues reported with Rule 9 practitioners highlights the effectiveness of the mentorship they receive, ensuring they are well-prepared to serve their clients and make positive contributions to the state’s legal community.

Since its inception, Rule 9 has significantly enhanced access to justice in West Virginia. With over 20 individuals currently admitted under Rule 9, more people in West Virginia are receiving the legal assistance they need. Furthermore, the attorneys admitted under UBE transfer score have shown remarkable dedication to their roles, with an average commitment lasting more than two years, emphasizing this initiative’s effectiveness and sustainability. According to statistics from the West Virginia State Bar, nearly half of the counties in West Virginia would be considered “legal deserts” as defined by the ABA. Therefore, it is critical that jurisdictions like ours seek solutions to these issues and actively promote programs that aid those in need of access to justice.

Online Law School: An Oasis in Indiana’s Law School Deserts?

By Justin P. ForknerThis article is based on the author’s presentation at the 2024 NCBE Annual Bar Admissions Conference held on May 2–5, 2024, in Chicago, Illinois.

Indiana, like most US states, faces a critical shortage of attorneys. And as in most states, Indiana’s attorney shortage is complicated. It defies a single solution because it isn’t a single problem. In fact, to call it an “attorney” shortage misses the mark—it is a legal professional shortage. And this shortage adversely affects access to justice, economic and workforce development, and our communities’ civic health.

Yet the potential solutions are just as myriad as the problems. The answer is not simply “more lawyers” but instead a complete reevaluation of how legal services are provided, who can do so, and how to make them accessible to all in need. To that end, on April 4, 2024, the Indiana Supreme Court created the Commission on Indiana’s Legal Future, tasking it with exploring the problem from all angles and recommending ways to address it.1

Though “more lawyers” aren’t the panacea, an increase would certainly help.2 When I present on the dearth of attorneys in Indiana, I often describe it as the confluence of three issues, or “rivers”:3 the age of Indiana-based attorneys; where those attorneys are located; and our attorney production line. Other efforts through the Commission will aim to address where our attorneys are and how to encourage younger lawyers to practice where they currently aren’t; this article, though touching briefly on these topics, will focus primarily on the last element of our three-rivers problem—the attorney production line. In particular, it will highlight a route Indiana traversed prior to the Commission: creating a path for people to become licensed Indiana attorneys by attending law school online.

Rivers One and Two

To understand the impact of Indiana’s attorney production line, it is helpful to first review the first two problems and how they merge. In short, where we have fewer attorneys in our state, those attorneys trend older. And that’s most evident in our rural counties, where lawyers are retiring with fewer younger lawyers coming in to replace them.

Attorney Age: To track an attorney’s age, we use their date of bar admission as a proxy.4 Although some attorneys, like myself, come to the law as a second career, the majority attend law school directly after college. We can thus approximate that a newly admitted lawyer is about 25 years old, making an attorney 15 years past admission roughly 40 years old, and so on. From that, we know that the average retirement “age” of an Indiana attorney is 39 years past admission, or roughly 64 years old.

Figure 1. Number of Indiana active attorneys and average years since bar admission by county

The average years past admission in our state is 22.4 years, meaning the average age of an Indiana attorney is roughly 47 years old. Though this doesn’t sound too bad, the issue becomes stark when localized. The average years past admission is much higher, 25.7 years, for lawyers in our nonmetropolitan statistical areas than it is in our ten most populous counties, 23.3 years, and in our county with the highest population, 20.3 years.5 These numbers lead to the second problem.

Attorney Locations: To determine where Indiana’s attorneys are located, we use their registered business addresses.6 Including judicial officers, there are roughly 19,000 active attorneys in Indiana.7 Subtracting lawyers who maintain active licenses but are based out of state leaves closer to 16,000 active attorneys.

But these lawyers are predominantly clustered in Indiana’s urban areas; over half work in Marion County, where Indianapolis is located, and the seven “donut” counties that surround it.8 Thus, some of Indiana’s 92 counties have as few as five active attorneys—and when you reduce that number by the judge(s) and prosecutor(s), many counties have only one or two lawyers representing its residents, businesses, and governmental entities.

Figure 2. Location of Indiana law schools overlaid on maps of active attorneys and average years since bar admission by county

River Three

To be sure, these two problems are not unique to lawyers in Indiana. Medical providers, mental health professionals, veterinarians, accountants, and other professionals are all in scarcer supply in our rural counties. What is unique to lawyers in Indiana is a recent reduction in legal educational offerings.

In 2017, the state had five law schools: Indiana University’s Robert H. McKinney School of Law in Indianapolis and Maurer School of Law in Bloomington; Valparaiso Law School in northwestern Porter County; Notre Dame Law School in South Bend; and Indiana Tech Law School in Fort Wayne. But, over a three-year stretch, two of those schools closed: Indiana Tech in 2017 and Valparaiso in 2020.

Indiana Tech’s closure had a small impact on attorney output—it was relatively new and had not begun producing large numbers of graduates. Valparaiso’s closure, however, was significant, as it accounted for about 18% of Indiana’s bar exam applicants, recruited Indiana residents heavily, and produced an outsized percentage of public service lawyers. By contrast, Notre Dame has roughly 180 students in each graduating class, but only a handful are Indiana residents and just about 8% take Indiana’s July bar exam. IU Maurer graduates around 170 students each year, with roughly half of them being Indiana residents, but only around 38% of those graduates sit for Indiana’s exam. As for IU McKinney, the graduating class is generally around 225–245 students, with roughly 80% of those students being Indiana residents and 74% sitting for the exam.9

Therefore, although we have three law schools, only IU McKinney predominantly enrolls Indiana residents and sees most of its graduates take the Indiana Bar Exam. It is also the only law school in the state to offer an evening program, as well as the only one with a hybrid online program. Yet both those programs still require in-person, on-campus work, and both cost the same per credit hour as the traditional daytime program.

The closure of Indiana Tech and Valparaiso and the above statistics lead to the confluence of Indiana’s three problems: the areas of our state with fewer and older active lawyers not only suffer from an access-to-justice problem, but the people in those counties who might become lawyers must confront an access-to-nearby-law-school problem. With that third river drying up, these areas aren’t just legal deserts; they’re also law school deserts.

That’s a significant hurdle to overcome when we know that a substantial driver of practicing in a rural part of our state is a pre­existing connection to that area—a family, a career, a community. Would-be lawyers from these areas must either uproot, move, and leave their jobs or undergo grueling commutes back and forth to school.10 And this is a problem not shared by those looking to become doctors, nurses, accountants, and veterinarians. Those fields have far more extensive education networks in Indiana.11

Given this recent challenge of getting individuals in large parts of our state to law school, the question then became, “Can law school be brought to them?”

The Purdue Proposal

Into Indiana’s law school desert stepped Purdue University and Purdue Global.12 Purdue Global is a fully online law school originally founded in 1998 as part of Kaplan University and acquired in 2018 by Purdue—Indiana’s land-grant university—as part of its Purdue Global system. Purdue Global costs roughly $50,000 in total for its four-year law program. And though the law school is not accredited by the American Bar Association (ABA), it is accredited by the State Bar of California.13 Additionally, a Purdue Global student typically differs in many ways from a “traditional” law student. For example, as of 2022, the law school’s student body was 60% non-white and over 50% female, had a median age of 43, tended to work full-time, and lived outside the commute range of brick-and-mortar schools. Additionally, nearly 20% were directly linked to military service as a veteran or as the immediate family member of an active-duty service member.

I turn now to spring 2022, when Purdue proposed amendments to Indiana’s Admission and Discipline Rules that would allow graduates of non-ABA accredited law schools to sit for the state’s bar exam. The proposal, however, specified that the law school needed to have been accredited by one or more state, regional, or national bodies that specifically accredit law schools and be operated by or affiliated with a state educational institution whose legal education program or degree was approved by the Indiana Commission for Higher Education. In practical terms, this proposal applied only to graduates of Purdue Global by virtue of its California accreditation and its Purdue affiliation.

Working Group

To examine Purdue’s proposal, the Indiana Supreme Court assembled a working group chaired by one of our intermediate appellate court judges. The group included a mix of practitioners, trial court judges, rural community representatives, educators, and bar examiners. It met six times over six months and received briefings from a cross-­section of presenters, including the State Bar of California’s accreditation staff, the ABA Council on Legal Education and Admission to the Bar, Purdue Global staff, entry-level lawyers, and current law students.

The working group then issued a report, identifying advantages of and challenges to allowing Purdue Global graduates to sit for the Indiana Bar Exam. The report recognized that remote learning was a necessity brought on by the COVID-19 pandemic that had become a reality here to stay and that Purdue Global could provide quality, affordable access to a legal education for folks living in our law school deserts.14 But the report also expressed doubt that Purdue Global alone could solve our lawyer shortage and lawyer diversity challenges, fear that Purdue Global graduates may generate more character and fitness issues than the state’s other law school graduates, and concern that allowing Purdue Global graduates to take the bar exam might lower our state’s bar passage rates.15 There was also a significant concern that the Indiana­-centric nature of the proposal might run afoul of the US Constitution’s Dormant Commerce Clause.16

With these pros and cons in mind, the report did not make a direct recommendation to adopt or reject Purdue’s proposal; instead, it provided the Court with a list of recommendations that the working group felt should be preconditions to approval. These included mandating certain ABA-style reporting requirements, enforcing a higher bar passage rate than ABA standards for Purdue Global graduates, limiting class sizes, and obligating Purdue to target marketing and job placement efforts in our legal deserts. The Court then submitted the proposal and report for public comment.17

Public Response and Comments

Comments were mixed. By and large, the institutional responses were not favorable. The Indiana State Bar Association (ISBA) believed that an independent accrediting agency should ensure a non-ABA accredited law school’s standards met the level of practice expected of Indiana lawyers.18 The Indianapolis Bar Association (IndyBar), our largest local bar association, feared that the proposal’s impact on Indiana’s lawyer shortage would be minimal; that waiving ABA standards would diminish the quality of the practice of law; and that without in-­person instruction in some form, new lawyers would suffer from lack of access to mentorship and practical skills-building.19 The two IU law schools expressed similar concerns, and they also pointed to Purdue Global’s higher dropout rate—roughly 50%. On the other hand, Indiana Legal Services (ILS), the state’s largest legal aid organization, was in favor of the proposal. Notre Dame Law School did not comment.

At the individual level, attorney responses broke into two basic camps. Those who opposed the proposal focused heavily on the benefits of face-to-face peer inter­action in law school and the challenge of developing, in a fully online environment, the soft skills and networking necessary for effective legal practice. Those who supported the proposal largely expressed a view that Indiana needed lawyers, and if Purdue Global’s graduates could pass the bar exam and meet the other qualifications for admission, then it shouldn’t matter where they earned their degree.20 Members of the public also generally commented in favor of the proposal.21

The Court had a decision to make.

The New Way Forward

It’s important to note that at the time Purdue submitted its proposal, Indiana was one of only 19 states that limited eligibility to take the bar exam, under any circumstances, to graduates of ABA-­approved law schools.22 And it was clear from the institutional, professional, and public responses that although there was support for shifting away from that position as a result of the state’s attorney shortage, the initial proposal was not the best solution to our law school desert problem. The perceived risks outweighed the potential benefits.

In November 2023, after considering all the feedback and conducting additional research and analysis, the Indiana Supreme Court posted for comment a new, broader proposal to amend its Admission and Discipline Rules to provide a process by which otherwise-­qualified individuals, who did not graduate with a law degree from an ABA-­accredited law school, could sit for our bar exam.

Specifically, this new proposal included a mechanism for two sets of individuals to seek a waiver of our ABA-accreditation requirement:

• Graduates of a non-ABA accredited US law school who were eligible upon graduation to take the bar exam of another US jurisdiction; and
• Graduates of a non-US law school who subsequently completed a graduate degree in American law from an ABA-accredited law school.

In both instances, Indiana’s Board of Law Examiners would be given authority to recommend that an individual sit for the bar exam based on their education and experience, but the Court would make the ultimate determination.23 Similarly, the individual would be subject to the same admissions requirements as graduates of ABA-accredited law schools.24

The response to this proposal was, overall, favorable. The ISBA was supportive. IndyBar was not opposed but urged the Court to proceed with caution.25 As for the IU law schools, they were still not in favor of allowing graduates of non-ABA-accredited law schools to take the bar exam,26 but they did not oppose allowing graduates of foreign law schools with graduate degrees in American law to do so.27 ILS was again in favor but suggested concrete standards to frame the Board’s discretion. And comments from individual practitioners and members of the public were again split, but generally more favorable than not.28

As a result, on February 15, 2024, the Court approved a modified version of the new proposal, incorporating language that the Board of Law Examiners “should grant a waiver when doing so would be in the public interest after balancing all relevant factors including the applicant’s educational history and achievement, work history and achievement, bar exam results from other jurisdictions, desire to practice law in Indiana, and familiarity with the American legal system.”29 This new rule went into effect July 1, 2024, meaning the first eligible applicants can seek a waiver to sit for the February 2025 exam.30

Conclusion

The critical takeaway from this article it is that the attorney shortage, in Indiana and across the United States, is complicated. It is fueled by several factors, some preventable and some inevitable. There is no one single solution or standard set of solutions that will work everywhere. Instead, there are any number of avenues to explore, each of which will present its own unique challenges and sources of both resistance and acceptance.

But, as a legal profession, we cannot remain complacent; “do nothing” is not an answer. We must instead commit our energy to fully understanding the risks and benefits of these new ideas, and we cannot simply cast off one as too small or another as too large. Any one of them, applied effectively based on a jurisdiction’s needs, could target a discrete aspect of the shortage as part of a collective solution. And we must come to grips with the idea that, in many ways, “the way we’ve always done it” is what got us to this point—and it won’t get us out.

Acknowledgments

This article would not have been possible without the inestimable assistance of many people engaged in Indiana’s online law school endeavor. I hope this article reflects the tremendous effort they invested. And I owe my highest personal thanks to three tremendous players in the field of Indiana’s legal education reform: Josh Woodward, Counsel to the Chief Justice of Indiana; Brad Skolnik, Executive Director of the Indiana Supreme Court’s Office of Admission and Continuing Education; and the Honorable Nancy H. Vaidik, Judge of the Indiana Court of Appeals, chair of the Indiana Supreme Court’s Purdue University Global Concord Law School Working Group, and co-chair of the Indiana Supreme Court’s Commission on Indiana’s Legal Future.

This article originally appeared in The Bar Examiner print edition, Fall 2024 (Vol. 93, No. 3), pp. 6–19.

Contact us to request a pdf file of the original article as it appeared in the print edition.