How Will We Get New Lawyers If COVID-19 Cancels The Bar Exam?

July feels like a long time from now. Hell, last week seems like an eon ago. But for those charged with administering the July bar exam, that date must seem right around the corner. With July barreling down on them, they’re in a jam to quickly decide to postpone — or even cancel — this administration of the bar exam.

But if they do decide to cancel the bar exam, what happens next? In a recently published paper on the issue, as part of the working paper series is co-sponsored by the Center for Interdisciplinary Law and Policy Studies at the Moritz College of Law, authors Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea A. Curcio, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Merritt, Patricia E. Salkin, and Judith Welch Wegner present several options — and their pros and cons — for consideration.

The first option considered is a simple postponement. However, the authors cite a potential wave of outbreaks of COVID-19 that would stymie a postponed exam:

The probable wave-like nature of the pandemic means that it is impossible to predict a time in 2020 when any jurisdiction could safely schedule an exam administered to large groups of people. Postponing the exam until early fall 2020, in fact, might situate the exam squarely in the second wave of the disease. Postponing and then cancelling the exam would be devastating for bar exam offices, exam-takers, employers, low-income clients, and small businesses. Exam offices in many jurisdictions are leanly staffed and funded; asking those offices to prepare for a postponed exam, only to have it cancelled and perhaps rescheduled, might overwhelm those offices.

There’s also an option to take the bar exam fully online, and allow applicants to take the exam from their homes. Though that is what the GRE is doing, the bar exam is more old school. The National Conference of Bar Examiners (NCBE) hasn’t yet moved the Uniform Bar Exam (UBE) online (which many jurisdictions rely upon) and local components of various jurisdictions’ bar exams are also not online. Having to make that monumental shift under the pressure of a pandemic is likely to be a move fraught with danger.

The paper also considers administering the bar exam to small groups (no more than 10 people). If that sounds like a logistical nightmare at best and an impossibility at worst (can you even imagine dividing up all the New York test takers into groups of 10?!) you aren’t alone. Besides, even small groups may run afoul of shelter-in-place orders, and it remains unclear whether we’ll still need them come bar exam time.

Also considered is extending emergency diploma privileges or diploma privileges plus some additional requirement (such as completion of bridge-the-gap programs or submission of affidavits) to law school graduates within the jurisdiction that they attended law school. The authors certainly see this as the most straightforward way to keep churning out new lawyers:

This option [emergency diploma privileges] is straightforward and easy to administer; based on Wisconsin’s experience, risks to the public are minimal. It would also be the most efficient way to get teams of licensed new lawyers on the front lines to help meet the legal challenges faced by our society as we first wage war to combat the virus and then rebuild profoundly damaged economic, social, and legal systems.

And while that will do wonders for law schools’ bar passage rates, it’s unclear how much support that option would have in the legal community. After all, some folks like the gate-keeping function of the bar exam, and this would be a radical departure.

They also discuss potentially expanding supervised practice rules for recent graduates:

Jurisdictions could temporarily modify these supervised practice rules to: (a) allow 2020 graduates of accredited law schools (including those who graduated in December 2019) to use these licenses through November 15, 2020; and (b) permit those graduates to use those licenses for any type of employer that provides close supervision by a licensed lawyer.

This could also potentially be used to allow those who successfully complete a supervised practice program to be permanently admitted to the bar.

But regardless of which option is ultimately selected, the authors urge the decision to be made quickly:

The progress of the COVID-19 pandemic makes one point abundantly clear: It is imperative to act quickly and plan ahead. It is already time to make decisions about the July 2020 bar exam. In addition to protecting the public health, we need to preserve the mental health of the candidates hoping to join our profession this year. Those candidates are already suffering 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. Will they be able to find jobs without a law license? Will they study intensely for the bar only to discover that the exam has been cancelled or postponed? This emotional stress is building by the day: some students report that they are struggling to focus on their remaining classes because they are so worried about whether they will be licensed later this year.

It’s true — any certainty would be welcomed in these tumultuous times.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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