By Emma Cueto

Law360 (July 27, 2020, 5:41 PM EDT) -- The National Conference of Bar Examiners, state courts and other stakeholders have badly bungled the response to the COVID-19 pandemic, an article in the fall issue of Howard Law Journal argues, but the crisis could offer an opportunity for the legal community to reconsider the status quo.

Professor Marsha Griggs of Washburn School of Law wrote in the article, which was published online on Saturday, that the last-minute changes to the exam and the resistance to consider alternatives to an in-person test have harmed test takers, and examiners in many states need to do better.

"Faced with the medical reality that the threat of coronavirus rendered traditional administration of a bar exam unsafe, bar-licensing authorities lagged woefully behind other institutions, including the rest of the legal profession, in responding adaptively to the health crisis," Griggs wrote.

Instead of responding quickly and successfully adapting to the new reality of the pandemic in the way that law firms and law schools did, Griggs argued, "too many states failed to make timely and reasoned temporary departures from a testing modality fully incompatible with public safety and questionably out of touch with the needs of today's legal profession."

With public health officials warning against indoor events and large gatherings of people, many states have been forced to make changes to the usual bar exam procedure, with some choosing to delay or take the test online and others opting for an alternative means of licensing new law school graduates.

This month, for instance, California lowered its passing score and moved the testing date to October. Georgia also pushed the date to October and announced that the test would be administered online. Delaware and Louisiana, meanwhile, cancelled the exam outright and granted law students a limited right or a temporary right, respectively, to practice law in the state.

Other states granting "diploma privilege" or something similar include Washington, Oregon and Utah.

New York, in contrast, this month cancelled its July exam dates without announcing a new plan.

The situation has led to criticism not only of bar examiners' response to the pandemic, but also of the bar exam itself, with some in the legal community pointing out the way in which the delays and disruptions disproportionately affect less privileged test takers — and the way COVID-19 has only heightened that inequality.

Griggs joined that line of criticism in her article, highlighting the ways in which the uncertainty and changed plans impact test takers. Many recent graduates started out studying and mentally preparing for an in-person test administered by the National Council of Bar Examiners, only to find themselves now needing to gear up for an online test, or one written by their own state, she said.

In states with delayed dates, those studying for the bar must now find a way to stretch their budgets to cover additional months of test prep, and an even longer gap before they can begin working, Griggs noted.

These hardships were not unavoidable, Griggs argued. If the NCBE and state examiners had acted quickly and with foresight and planning in the early days of the pandemic back in March, the current situation could have been avoided, she said.

Despite the months of public health guidance, however, many states were slow to respond to the pandemic, which Griggs argues reflects the type of rigid thinking and unwillingness to change that often goes along with the bar exam.

"The recent crises have brought into question both the actions and inactions of the bar examiners, and the bar exam itself," she wrote, going on to ask, "Why does the legal profession continue to rely so heavily on bar examination in the face of such longstanding criticism? Why were examiners willing to expose applicants to the risk of death rather than make any modification to the method or modality of bar examination?"

Griggs told Law360 that while she appreciates the position that bar examiners have been put in is a difficult one, it could also be an opportunity for states to experiment not only with new testing formats, but also with new means of licensing attorneys.

"I think it's certainly time to look at the bar exam," she said. "If not now, when? ... If based on these circumstances, we aren't willing to take a close look at how we license attorneys we never would."

States could reconsider the largely multiple-choice format of the bar exam in favor of the type of open-book, essay formatted test Nevada unveiled, she argued in the article, or the "supervised path to licensure" rolled out in Utah, in which graduates are granted diploma privilege but must also undergo 360 hours of supervised practice by a licensed attorney.

Whichever route states may choose to go, however, she said, they owe it to the current lawyer-hopefuls to do better — especially since current projections expect the COVID-19 pandemic to continue into 2021. 

"I don't know what if anything could be done right now when we are less than 24 hours away from the July in-person exam," she said. "But my hope is that this will be a positive lesson. ... Hopefully it is handled better in February."

The NCBE did not respond to a request for comment. 

--Editing by Alyssa Miller.

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