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Several of the largest U.S. states are considering plans to postpone their summer bar exams because of the health concerns associated with the coronavirus.
On Friday, New York became the first jurisdiction to officially delay the July bar exam, to an as-yet-undermined date in the fall. Massachusetts and Connecticut followed the suit Monday, by announcing that they will also postpone the exam.
The decision to postpone the exam does not come as a surprise, given that COVID-19 restrictions prohibit large gatherings for the foreseeable future, and the tests are typically administered in large, in-person groups.
The postponement of the bar is alarming aspiring attorneys, who fear further cancelations and delays might disrupt their path to a successful legal career.
“We’re pretty petrified,” Nicole Buckley, a third-year student at the City University of New York School of Law, told law.com. “I have friends from all different law schools, and pretty much everyone is in the same boat. The decision to cancel the July bar exam is devastating and really detrimental to all of us—whether it’s because we were relying on bar grant money for funding for the summer, or for prospective employment.”
Buckley is of one the many law students lobbying for a diploma privilege that allows graduates to bypass the bar exam.
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Anxious law students in Florida, California, New York and other jurisdictions have shared petitions and open letters to bar examiners, urging them to go the emergency diploma privilege route, Law.com reports.
A working paper by a group of legal academics sides with the law students, urging states to consider diploma privilege for 2020 law graduates, as well as supervised practice.
“In addition to protecting public health, we need to preserve the mental health of the candidates hoping to join our profession this year. Those candidates are already suffering from educational, family, and financial disruptions. Some have lost part-time jobs needed to support themselves and their families. Others are struggling to care for children or older relatives. All are panicked about whether they will be able to take the bar exam this summer and, if not, how they will cope. Each year, more than 24,000 graduates of ABA-accredited law schools begin jobs that require bar admission. The legal system depends on this yearly influx to maintain client service. The COVID-19 crisis, moreover, will dramatically increase the need for legal services, especially among those who can least afford those services. We cannot reduce entry to the profession at a time when client demand will be at an all-time high,” the paper states.
“The mistake is to assume that an exam will be possible in the fall,” said Ohio State University law professor Deborah Jones Merritt, one of the paper’s 11 authors. “There is a significant chance that exam-takers will study intensively for a fall exam only to have it canceled a week or two before it is offered [due to subsequent waves of infection].”
The National Conference of Bar Examiners, which develops and produces the bar exams used by most U.S. jurisdictions, is working closely with state bar admission offices in finding a doable plan that will protect candidates’ safety and ensure competency of people admitted to practice law, the NCBE said in a statement.
“It is not clear that it is imperative to quickly adopt alternative methods of licensure, as proposed in the white paper, particularly at a time when courts and bar admission offices are working overtime (and remotely) to respond to this crisis,” NCBE President Judith Gundersen wrote in the statement.
New York’s decision to postpone the attorney license tests may cause a rush of the state’s 3L students signing up for the July exam in other jurisdictions that use the Uniform Bar Exam, hoping that those states will move forward, noted CUNY Law Dean Mary Lu Bilek.
However, it seems that most jurisdictions are favoring postponement over bypassing the exam.
The New York Court of Appeals announced the delay without any detailed explanation of its decision to postpone the exam—beyond the inability to safely administer the test in July—The decision was announced before the State Bar of New York’s Task Force on the New York Bar Examination issued any recommendations, said chairman Alan Scheinkman, a state court appellate judge.
The task force considered an emergency diploma privilege and dismissed it.
“For one thing, there are about 15% of first-time test takers who do not pass,” Scheinkman said. “In this current year, where a lot of schools have gone to pass/fail courses, we would be very concerned about admitting people who have not shown a minimum degree of competency.”
Buckley told Law.com that she and other students will continue to organize and lobby the New York State Court of Appeals to adopt an emergency diploma privilege program.
“I know the Court of Appeals is worried about it because it sounds like it’s too easy,” she said. “But the route of going through emergency diploma privilege still requires you go through a required course [of legal education]. It would allow students to stay on the timeline of being able to get a job by the end of the summer. It would relieve a lot of the economic, personal, and emotional burden on every student who is planning on taking the bar in July.”
UPDATE #1 – APRIL 06, 2020
NCBE Sets Two Dates For Fall Bar Exams
The National Conference of Bar Examiners has announced two dates in the fall when law graduates can take the exam, LAW.com reports. Aspiring attorneys can take the license test September 9 and 10, and a second exam September 30 and October 1.
“We don’t yet know what the months ahead will hold,” reads the council’s announcement. “NCBE is being proactive and continuing to explore solutions for as many scenarios as we can anticipate. We are consulting with outside testing, technology, and exam security experts to consider various options and alternative methods of testing if the traditional group setting must be canceled or modified.”
NCBE hopes that jurisdictions will stick by the exam and forgo the increasing calls for alternative licensing systems.
“No matter what happens, we are committed to ensuring that law students have every opportunity to become licensed so that they can put their legal education to work in helping those affected by this crisis,” reads the announcement.
UPDATE #2 – APRIL 08, 2020
ABA Board of Governors approves limited practice for recent law school grads
The American Bar Association’s Board of Governors on Tuesday published a resolution urging jurisdictions to immediately adopt emergency rules authorizing limited practice with lawyer supervision for recent law school graduates if the COVID-19 pandemic causes cancellations of July bar exams, ABA Journal reports.
Graduates of ABA-accredited law schools who graduated between 2019 and 2020 and have yet to take the bar exam would be able to practice law under limited rules. The graduates would have to take the license test by the end of 2021; the limited authorization would end if someone takes and fails the bar exam.
While the board unanimously voted for the resolution, various members expressed concerns about the emergency rule being unfair to people who failed the February 2020 bar exam.
“This has to be done incredibly quickly. This is an issue on which the American Bar Association, in my opinion, and in the opinion of the working group, must lead and not wait to see what others do. This is a moment for us to do what we were put here to do, which is to lead the profession,” said Patricia Lee Refo, president-elect of the ABA and leader of the working group. The Standing Committee on Bar Activities and Services joined with the ABA’s Law Student Division to submit the resolution.
Law grads would also need to meet all of their jurisdictions’ attorney admissions requirements and would be subject to the same attorney discipline rules as licensed lawyers.
“This is an issue that all jurisdictions and supreme courts are mulling right now. It’s causing tremendous anxiety among third-year law students, who anticipated a very different end to their law school careers. They are absolutely needing some certainty on the issue,” said Paula Fredrick, chair of the ABA Standing Committee on Ethics and Professional Responsibility, general counsel for the state bar of Georgia and a member of the working group assembled to address the issue.
“Some jurisdictions will take this resolution and run with it happily. Even the ones who don’t run with it happily, they will have a nice laundry list of what they will consider as they decide where to go with the fall version of the bar,” she added.
According to the resolution, Tennessee and Arizona state supreme courts recently adopted similar emergency rules. New Jersey also recently announced a supervised practice provision.
UPDATE #3 – APRIL 10, 2020
New Jersey Law Grads can temporary practice law without passing the bar
Law school graduates in New Jersey will be allowed to practice law temporarily without taking the bar exam after the test was postponed as a result of the coronavirus pandemic, according to an order from the New Jersey Supreme Court.
Students graduating in 2020 can practice law under the supervision of an attorney with a three-year license before the bar exam is held in the fall.
“At this challenging time, the public has a continuing and growing need for legal services in many critical areas,” Chief Justice Rabner said in a press release last week. “Newly admitted lawyers can help meet that need.”
The law grads must have a degree from an accredited law school and must apply to take the first scheduled bar exam after graduation or qualify for one extension.
The rule allows graduates to do such things as providing client legal services, drafting legal documents and pleadings, and taking part in negotiations and settlement discussions.
“The temporary ability to practice law will lapse if the graduate does not sit for the first bar exam scheduled after graduation, unless granted an extension, or if the graduate does not pass the exam,” the release said.
UPDATE #4 – APRIL 13, 2020
NCBE is pushing back against calls for emergency diploma priveledges
The National Conference of Bar Examiners warns that allowing law grads to skip the bar exam just because of the coronavirus crisis could lead to many problems- unleashing unqualified attorneys is one of them, according to the group that designs the test.
In a white paper released April 9, NCBE advises against calls for emergency diploma privileges to state bar examiners, arguing that the bar exam ensures new attorneys will meet a minimum level of competence and should not be elbowed out because of the pandemic.
The bar exam and whether it will be possible to administer the test safely keeps law grads and jurisdictions awake at night. Licensing tests for doctors and nurses are not being canceled due to the pandemic, the national conference’s paper notes.
“There are good reasons the jurisdictions have relied upon the bar exam for decades as a fair, objective, valid, and efficient method for making licensing decisions, rather than relying upon diploma privilege,” reads the white paper, which is titled Bar Admissions During the COVID-19 Pandemic: Evaluating Options For the Class of 2020. “Those reasons are still compelling in the face of the current crisis.”
Developing the licensing test is the main function of NCBE which has more than 100 employees and in 2018, reported $26.6 million in revenue so it’s not surprising why the organization is against canceling the exam. Nevertheless, the white paper points out the benefits to the public that would be compromised without requiring the test for would-be attorneys.
Several jurisdictions have said that the postponement of the July bar into the fall and others have announced they are extending the limited practice programs that enable law grads to represent clients under the watch of a licensed lawyer.
But only one jurisdiction—Utah—has announced that it will move forward with an emergency diploma privilege that would allow recent graduates to be admitted to the bar without passing the exam.
UPDATE #5 – APRIL 15, 2020
Florida Bar Exam Results Are In
The Supreme Court of Florida released The grades from the February 2020 General Bar Examination that took place in Tampa from Feb. 25-26.
It applies to test-takers who were sitting in the examinations in Florida for the first time.
The test-takers at The University of Florida and Florida International University scored the highest passing percentages.
“We’re very happy that 10 of our 12 first-time bar takers passed, which puts us first in the state,” said the dean at UF Laura A. Rosenbury.
The dean of FIU College of Law, Antony Page, noted that the numbers between the top-performing universities.FIU had nine of 11 students pass. Page credits the dedication of students and faculty.
“We are pleased to consistently be more than 20% above the state average,” Page said. “Our consistently excellent results on the bar are a great testament to the work that our students do and our faculty to get ready for the bar.”
With 70% of its candidates passing the bar Florida State University took the third spot. Next was Stetson University with 68.2%, and the University of Miami with 55%.
The dean of the law school at Florida State University, Erin O’Hara O’Connor, noted her concerns about the July exam, which has more test-takers.
“Any school’s pass rate can change dramatically if three or four students are having personal issues or struggling with preparation time,” she said.
Nova Southeastern University, with a 30% passing percentage, ended up in the last place. Though, in 2018, UF held the lowest spot with 31.8%. While UF officials agree that it is hard to draw a conclusion from a small sample size, the university has since taken steps to improve its performance.
“When we saw those results in February of 2018, we doubled down on our commitment to ensuring that as many of our students pass on the first attempt as possible,” Rosenbury said. “We offered more support for our first-time bar takers, as well as started offering a bar prep course for credit,”
Rosenbury said the university was the last law school in Florida to have that type of course.
“We’re just excited our bar passage rates have gone up steadily since February of 2018,” Rosenbury said. “I think they will be even higher this July, or whenever the bar exam takes place this summer.”
According to the high court reports,1,717 applicants took the licensing test in February.
UPDATE #6 – APRIL 28, 2020
California Postpones Bar Exam Until September aims to administer it online
California’s July bar exam will be postponed until September because of Covid-19 concerns, and the state bar will ‘make every effort possible” to administer the test online with remote or electronic proctoring, the state Supreme Court announced Monday.
While many legal educators in California had urged the State Bar to allow law graduates to practice law under an attorney’s supervision, the high court, which oversees the State Bar, decided to reschedule the exam to Sept. 9-10 considering the “enormous challenges this public health crisis has placed before those who seek admission to the California bar, including the graduating law school class of 2020.”
“These adjustments recognize and will advance the manifest public interest in maintaining access to justice through competent and qualified legal services,” the court wrote.
The president of NCBE, Judith Gundersen, told the ABA Journal that the organization is evaluating the feasibility of securely administering an online bar exam.
“The NCBE is not working directly or exclusively with Massachusetts, California, or any other states in this endeavor. We are, however, exploring options to assist all jurisdictions, including California, in fulfilling their duties to protect the public through their bar admissions processes,” Gundersen told the ABA Journal.
Besides California, Massachusetts, announced last week that if the COVID-19 pandemic prevents a bar exam from being safely administered in person, its board of bar examiners will offer an online test.
UPDATE #7 – MAY 5, 2020
Texas Moves Forward With July Bar Exam
The Texas Supreme Court ordered the Bar Examination in Texas to go forward in July as scheduled. However, test-takers can also take the exam in September or at a later date for no additional fee.
The capacity for the July test is yet to be decided once the Texas Board of Law Examiners consults with the health authorities “regarding best practices for administering the examination safely,” the court wrote in its Thirteenth Emergency Order Regarding the COVID-19 State of Disaster.
The order notes that as of May 18, law school graduates and unlicensed law students and can practice under supervision. The new rules may be changed following public comment “and as rapidly changing circumstances warrant.”
“We are very pleased that under the guidance of public health authorities, we will be able to put on the July exam as scheduled, but we have this system in place so they can begin their practice under supervision while they wait to take the bar,” said Justice Brett Busby, the court’s liaison to the Texas Board of Law Examiners.
The court wrote in the order that “disruptions to personal and professional lives caused by the pandemic, may result in some applicants not having time to prepare for the July bar, or that some may no longer want to take the July exam for personal health reasons.”
In case the board cannot accommodate all law students registered for the July exam, the board will automatically register the extra candidates for the September exam.
According to the executive director of the Texas Board of Law Examiners, Susan Henricks around 2,000 students are expected to register to take the test in July or September, and the board should be able to accommodate all of them between the two dates.
“We are going to have people spread out, six feet apart. We’ve ordered 5,000 surgical masks,” she said.
Scores from the September exam are likely to be released in a quick turnaround of about three weeks after results from the July exam are made public.
UPDATE #8 – MAY 7, 2020
Bar Exam Set for July
The National Conference of Bar Examiners greenlighted the July test to jurisdictions that choose to stick with the traditional exam timeline—a decision that had been up in the air due to the COVID-19 pandemic. NCBE also left the door open to change plans should the COVID-19 pandemic warrant it.
While nineteen states so far have announced plans to postpone the bar exam to September, the remaining jurisdictions have either said they have yet to make an announcement about their exam plans or intend to give the test as scheduled in July.
“Based on this information, [the national conference] has determined that there will most likely be a sufficient number of July examinees to administer the bar exam,” reads the announcement.
Administering the test in July means the National Conference will need to develop three separate bar exams within two months. In early April, NCBE announced that it would offer additional tests Sept. 9 and 10 and Sept. 30 and Oct. 1 for jurisdictions that choose to delay the test. However, the conference announced in March that it would wait to see whether there was enough interest from jurisdictions to offer a July exam.
NCBE also said Tuesday that it is still searching alternative delivery options for the test, though it has earlier warned that moving the test online presents numerous challenges, including ensuring test security.
“We also continue to study and formulate options for an emergency remote assessment for those jurisdictions that cannot administer an in-person bar exam due to COVID-19 restrictions,” reads the announcement. “We will continue to work closely with jurisdictions in the weeks ahead to help ensure that law graduates have the answers they need as they prepare for licensure.”
UPDATE #9 – MAY 13, 2020
California Bar Examiners released its work plan for the upcoming September 202 Bar Exam
On May 11, California Bar Examiners submitted a seven-page work plan to the Supreme Court for the delivery of the September Bar exam.
‘The California Bar Examination is a high stakes examination. We must approach our responsibility t transition thoughtfully, methodically, deliberately and accurately.’ Donna Hershkowitz, Interim Executive Director of the State Bar wrote in an official email.
The key to delivering the exam online is whether the NCBE will provide a variation on the MBE that can be used effectively to scale the written portion of the exam. However, the work plan states that the California bar may hold the exam in person if the exam cannot be conducted online.
The state’s highest court ordered that State Bar, to postpone the July bar to Sept. 9-10 and to make every effort to administer the exam online with remote or electronic proctoring.
The court made its decision due to “the health and safety issues presented by the COVID-19 pandemic, and the enormous challenges this public health crisis has placed before those who seek admission to the California bar, including the graduating law school class of 2020.” the court wrote in an April 27 letter to the state bar’s board of trustees.
According to the work plan, facilities will be secured for testing accommodated applicants and test-takers without the proper equipment can take the exam remotely.
If the exam is administered online, applicants will receive notice of the rules by June 8.
Some testing experts have concerns about whether a remote exam can deliver valid and reliable results, due to issues like exam security, an inability to control testing environments and Americans with Disability Act accommodations.
The State Bar will confirm the change from in-person to remote by July 13.
UPDATE #10 June, 2020
Two states introduce COVID-19 waivers for July bar exams
Aspiring lawyers sitting for the July bar exam in North Carolina and Mississippi have a little extra paperwork to fill out: A waiver of liability, should they contract COVID-19 from the two-day exam. (And you thought Florida was crazy for going ahead with an in-person bar exam over the summer.)
The Mississippi Supreme Court adopted a plan in May put forth by the Board of Bar Admissions to go ahead with an in-person test in July, which includes a requirement that test-takers sign liability waivers and a number public health measures.
Test-takers in Mississippi will have to follow the protocols with regard to allowing temperature checks, screening questions, as well as engaging in social distancing and wearing masks during the test.
“It would be hard to prove negligence on the state, if it’s operating under appropriate guidelines with separation, wearing masks and keeping people as safe as possible, says Philip McIntosh, a professor at Mississippi College School of Law.
As a general rule, the Mississippi Supreme Court has not been in favor of waivers, McIntosh adds.
“They will look at whether it has been freely negotiated, which is an immediate problem in this case, and does it affect public interest? If you are applying for a license from the state, which you have to waive negligence to get, that doesn’t sound like an equal bargaining condition,” McIntosh says.
McIntosh suspects, that Mississippi applicants may be less likely to challenge the waiver than those in other states.
“That’s just a cultural thing,” McIntosh adds. ”I suspect a lot of students will say, ‘I’ve got to take the bar exam anyway.’ They may not be happy about it.”
On the heel of Mississippi decision, North Carolina Board of Bar Examiners also announced the requirement in a website link detailing information about COVID-19 requirements and protective measures.
“By proceeding to take the examination, each applicant acknowledges and voluntarily assumes all risk of exposure to or infection with COVID-19 by attending the July 2020 North Carolina bar examination, and the possibility that such exposure or infection may result in personal injury, illness, permanent disability, and death,” the document states.
Unlike, Mississippi North Carolina is not asking test-takers to waive their rights, but so much as posting a notice that applicants taking the test has already done so.
Kimberly Herrick, chair of the North Carolina Board of Bar Examiners said there are aditional plans to post signs with similar language at the testing sites.
“If we get feedback that convinces us that we’re doing something we shouldn’t be doing, we can certainly as a board to decide to change what we’re doing,” says Herrick, a guardianship and estate administration attorney based in Concord, North Carolina.
Some contracts and civil law professors, however, are scratching their heads. “I don’t think it’s enforceable or material,” says David Hoffman, a professor at the University of Pennsylvania Carey Law School. “This is not an agreement; it’s a posted sign.”
