NY Bill Would Suspend Two-Fail Bar Exam Rule For Pandemic

By Emma Whitford
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Law360 (July 10, 2020, 9:36 AM EDT) -- New legislation would allow New York public defender and government law graduates who have twice failed the bar exam to continue to practice under supervision for the duration of the state's ongoing coronavirus state of emergency.

Introduced by Assemblywoman Aravella Simotas and Senate Judiciary Chair Brad Hoylman, both Democrats, bill A10661/S8648 ​​​​​​amends sections of Judiciary Law Section 478, which has allowed current and recent law students to work as indigent service providers or prosecutors until and unless they fail the bar exam more than once.

Simotas, a former litigator, said she was inspired to draft a bill that would temporarily lift the two-fail disqualification after reading a Law360 story about public defender law graduates in this situation, forced to give up their clients and take pay cuts in the midst of a pandemic.

The graduates hoped to sit for a June bar exam, which has been pushed to September. That exam is favoring first-time takers from New York schools, likely boxing out graduates who have failed the test twice.

"When I noticed the anxiety of those law graduates who hadn't yet passed the bar, and the difficulty of them sitting again, I said something needs to be done," Simotas told Law360. "During this crisis, New York should be taking every opportunity to make life for New Yorkers easier."

Vulnerable clients in housing and family court should not have to switch attorneys abruptly, Simotas said. "I know personally how invested I was in my cases and how I was an expert on that," she said. "I would spend weeks and sometimes months studying and it's unreasonable to think that a new attorney coming in can offer the same type of representation."

The Association of Legal Aid Attorneys and the Legal Services Staff Association — unions representing 2,000 defenders of the indigent at more than 12 organizations in New York City — have been urging Gov. Andrew Cuomo and Chief Judge Janet DiFiore to temporarily amend Section 478 since the spring.

They have identified at least 14 law graduates in their organizations who have failed the bar twice and subsequently experienced pay cuts and lost clients. 

Association of Legal Aid Attorneys President Jared Trujillo praised the bill on Thursday, noting that he also supports a new Hoylman bill that would grant emergency diploma privilege to recent law graduates — essentially temporary license to practice law without taking the bar exam.

The exam is "a really classist test that we need to get rid of in New York, but this is an important first step so the impacted people will not suffer," Trujillo said of the practice order bill. "It really hurts people to not have the same attorney. These are folks that have been practicing under the student practice order for months, and are actually more skilled now than when they took the bar exam."

Simotas' and Hoylman's bill would expire whenever New York's state of emergency is lifted. Depending on the timing, it would not necessarily provide a bridge to the next bar exam for every retaker.

Iesha Sumerall, a law graduate with Legal Services NYC who has been working with indigent tenants, told Law360 Thursday that the bill comes at a critical moment.

"I was just speaking with my supervisor yesterday," Sumerall said. "We have a conference request from the court and ... she said she would have to take over the case. So, exactly what we feared would happen. I'd be a secondary advocate on [the client's] behalf. The possibility of this being concrete would be amazing and just in time."

Simotas on Thursday urged Cuomo and DiFiore to expedite the process by simply instating the temporary practice order amendment themselves.

"If Judge DiFiore or the governor issue [their own orders], I'm happy," she said. "I just want to get it accomplished."

Cuomo's office did not respond to a request for comment.

Lucian Chalfen, spokesperson for the Office of Court Administration, said, "We are reviewing their proposals."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Additional reporting by Rachel Stone and Frank G. Runyeon. Editing by Katherine Rautenberg.

For a reprint of this article, please contact reprints@law360.com.

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