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COVID-19 v. The Bar Exam

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by Katie Wolf

on 16 April, 2020

The Latest Class of Law School Grads Fights for Their Future

We’re all doing our best with social distancing, giving up our social life, working remotely, and even giving others on the sidewalk wide berth as we pass. But now imagine: you’re crowded in one room with hundreds of other people, for 12 hours over 2 days.

That’s just a normal bar exam, but in the age of COVID-19, it flies in the face of all the public health advice we’ve heard from the nation’s experts. With the next Unified Bar Exam (UBE) scheduled for late July, the class of 2020 is grappling with big questions about their future.

The National Conference of Bar Examiners, which administers the UBE, will decide by May 5th whether they will offer a July bar in any jurisdiction. But the class of 2020 isn’t simply waiting around to find out what will happen to them. They are actively petitioning for increased flexibility and creativity to ensure that they can move their careers forward.

Recently, Utah astonished the country by adopting the bold strategy which many students demand: letting students skip the bar completely. With the switch to an ‘Emergency Diploma Privilege’ taking the place of the bar exam, Utah’s law students will be some of the few with a clear pathway to licensure.

Will others follow suit or find different solutions? Will this class of law school grads be supported or left in the lurch? Here’s 4 reasons why this decision matters to the entire profession, and a review of 6 possible licensure measures under consideration.

4 Reasons Why It Matters

With so many industries screeching to a standstill, why is it crucial to ensure that new lawyers can attain a license to practice? A working paper from 11 legal scholars sets out the stakes.

1. Ensure Access to Justice
Each year, around 24,000 law school graduates begin jobs that require them to pass the bar. Around half of these are positions with government, legal aid groups, and small firms. These are the organizations that most serve low-income people and those with the least access to justice. Cutting off the supply of new graduates means causing more harm to the most vulnerable groups. Access to justice is even more crucial as we face a tidal wave of new lawsuits related to consumer injuries, workplace violations, and shareholder losses as a result of COVID-19.

2. Protect Diversity in the Industry
Unemployment rates are already around 13%. Without a pathway toward practicing law, law school graduates will struggle to find employment. And that struggle will hit hardest those groups that are already underrepresented in the legal field. That will hurt efforts to increase diversity in an industry that has long struggled with the issue.

3. Harness Unique Skills
These new graduates are also some of the most adept at remote work. Their skills and digital fluency will be valuable additions to firms struggling to reshape their practice.

4. Support the Well-Being of Future Lawyers
The working paper from 11 scholars mostly focuses on the well-being of the industry as a whole. But they also point out that the uncertainty surrounding the bar exam is taking its toll on the mental health of students. “This emotional stress is building by the day,” they write. “In addition to protecting the public health, we need to preserve the mental health of the candidates hoping to join our profession this year.”

With that in mind, the working paper sets out 6 possible ways jurisdictions can adjust the pathway to licensure. Many of these are already under consideration in different states. Each of them carries its own risks and difficulties. Here is a deeper look at the possibilities:

6 Alternatives to the July Bar Exam

1. Emergency Diploma Privilege
Law students and deans around the country have written letters pleading for emergency diploma privilege for law student grads. Deans of every ABA-accredited law school in New York are petitioning the state’s Court of Appeals to provide some pathway to licensure without taking the bar exam. As one columnist puts it, emergency diploma privilege is “the only ethical and humane path to licensure during the COVID-19 crisis.”

The National Conference of Bar Examiners (NCBE) is pushing back against calls to forego the bar. In addition to asserting that the exam is the best way to ensure new lawyer competence, they claim allowing ‘diploma privilege’ will reduce mobility, since students will only be licensed in the jurisdiction where they’ve studied. Furthermore, it brings up additional problems regarding ABA accreditation of law schools. Since rates for passing the exam are the main determiner of accreditation, foregoing the exam pulls the foundation out from under the entire system.

On the other hand, many point out that this is a system that has been working well in Wisconsin, where diploma privilege has been the norm for years. In a spirited defense of the system, law professor Beverly Moran writes that Wisconsin’s diploma privilege has proven itself better than the bar at ensuring the competence of those given the license to practice law. Further, she writes that it helps lawyers “prepare for the modern world by forcing up-to-date concerns into the classroom, while states that keep the bar examination find that they are stuck in the twentieth century.”

Professor Moran also notes that diploma privilege will work better for some jurisdictions than others. She believes it’s best instituted in small states, where there is a close relationship between the bar, the judiciary, the legislature, and the law schools within the state.

2. Diploma-Privilege-Plus
Worried about the rapid switch to a bare diploma privilege, some have suggested additional requirements that could ensure competence in newly-licensed lawyers. The letter from 11 legal scholars includes several possibilities to help ‘bridge the gap’:

  • A set of online courses or exams.
  • Successful completion of work with a clinic or externship.
  • An affidavit from an employer or externship supervisor that the candidate possesses the knowledge and skills to practice law with minimum competence.
  • Completion of CLE programs.
  • Completion of MAX, a free, online financial literacy program offered by AccessLex. (For enlightening thoughts from AccessLex President Chris Chapman, check out my interview with him on the Filevine Fireside)
  • Completion of specified lessons from the Center for Computer-Assisted Legal Instruction (CALI).

The ‘Diploma-Privilege-Plus’ option is the alternative in the works in Utah. According to the proposed order released by the Utah Supreme Court, recipients have to have graduated between May 2019 and June 2020 from law schools that post a first-time passage rate for last July’s exam of 86% or higher. They must not have previously taken the exam, and already have been registered to take the July exam in Utah by April 1.

But in addition to this, potential lawyers will have to complete 360 hours of legal work under the supervision of a licensed attorney. The Court believes these requirements will make sure that law students who want to practice elsewhere don’t flood the system here.

Now that Utah is about to take this step, many are watching to see if other states will follow suit.

3. Exam Postponement
This is currently the most popular option since it seems to require the fewest adjustments. The NCBE has already committed to providing two alternate fall dates for the exam: Sep 9-10 and Sep 30 – Oct 1. New York state has already rescheduled for September, with Massachusetts, Connecticut, and Washington DC following suit.

Some worry that students and testing institutions risk facing exactly the same problem in September. COVID’s timeline in the country is completely uncertain. Many epidemiologists have suggested a resurgence of the disease in the fall, putting the postponed exam squarely within the worst time of the second wave.

As the medical director of infection prevention for Yale New Haven Hospital warns, “COVID-19 is going to be with us for a while. It’s too early to really call accurately what we’re going to see in 1 year’s time or 2 years, but it’s going to be substantial.”

Will postponed exams just be postponed again? How will students and the legal industry at large face the economic and emotional repercussions of perpetually kicking this ball down the road?

4. Extended Supervised Practice Programs
Earlier in April, the ABA put forward a resolution urging jurisdictions to allow for extended supervised practice programs. This allows those who have graduated from an ABA-accredited school to practice the law in situations where a licensed attorney can watch over their work.

Many jurisdictions already have programs like this in place for grads who want to get experience before they get their bar exam results. But this resolution urges expanding their time frame (until November 15) as well as the practice settings (allowing practice in private firms, in addition to government and non-profit settings).

This option doesn’t bypass the necessity of a bar exam. Grads would be expected to pass the exam by the end of 2021. Anyone who had previously flunked the exam couldn’t access the option, and anyone who takes the test and fails to pass it would lose their practicing privilege.

New Jersey, Arizona, and Tennessee have already adopted extended supervised practice measures. New York announced they were looking into the process. But questions remain. Some wonder whether there will be enough lawyers interested in supervising the graduating class. Others worry it will negatively affect students who will still have to take the bar several months or a year down the road.

Some hold out hope that extended supervised practice measures could morph into a means of bypassing the bar exam. Jurisdictions could decide to grant licenses to those who have completed a certain number of hours under supervision, provided they can show an affidavit from their employer certifying their competence. They argue that the skills gained in actual practice are clearly more relevant for their futures than anything included in the exam.

5. Online Testing
Since so much legal education has moved to the internet, some argue that it’s time for the bar exam to follow suit. The NCBE has announced they are exploring this option, but there are no clear details yet on what this could look like and how security would be enforced.

With time ticking, many find this a risky strategy to rely on. But it could be more feasible for the MPRE, which is already an online test. The MPRE is scheduled to be administered in August and would be easier to switch to remote delivery. However, students traditionally have to take the MPRE within a window of time before or after their bar exam. The uncertainty of the exam means that the window would need to be expanded.

6. Smaller Group Testing
Finally, some propose that the bar exam could be offered to groups of fewer than 10 people, reducing the risk of contagion and complying with states’ social distancing rules. This system would require a much greater investment in proctors and testing venues. It also risks further uncertainty, since public health restrictions may prohibit even small gatherings in some areas, should a COVID outbreak occur. It would also need to provide additional provisions for those with compromised immune systems or other risk factors.

The Larger Debate Around the Bar Exam

In 1850s Illinois the ‘bar exam’ looked very different from today. One aspiring attorney described his exam as administered by the lawyer Abraham Lincoln—while Lincoln was lounging, “lank and half-nude,” in a bathtub.

He wrote:

[Lincoln] asked me in a desultory way the definition of a contract, and two or three fundamental questions, all of which I answered readily, and I thought, correctly. Beyond these meager inquiries…he asked nothing more. As he continued his toilet, he entertained me with recollections, many of them characteristically vivid and racy of his early practice and the various incidents and adventures that attended his start in the profession. The whole proceeding was so unusual and queer, if not grotesque, that I was at a loss to determine whether I was really being examined at all.

To signify that the young man passed this odd exam, Lincoln gave him a letter to take to the court, which said only:

My Dear Judge: The bearer of this is a young man who thinks he can be a lawyer. Examine him, if you want to. I have done so, and am satisfied. He’s a good deal smarter than he looks to be.

(This entire bizarre story can be found in the first American Law School Review from 1911).

Though this moment is unprecedented, it’s worth remembering that the system of licensure for lawyers has always been under flux. Though this situation is new to us, many of the questions around the ultimate usefulness of the bar exam are not. While we struggle through this moment of turmoil, the decisions we make will shape the future of practicing law, long after the pandemic ends.