Top DC Court Says It May Allow Law Grads To Skip Bar Exam

By Hailey Konnath
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Law360 (September 15, 2020, 11:30 PM EDT) -- Washington, D.C.'s highest court will expand provisions allowing law school graduates to temporarily practice under supervision and potentially grant emergency exam-waiver admission to the D.C. bar "for qualifying applicants" by the end of the month, according to an order issued Tuesday.

If the D.C. Court of Appeals follows through with granting diploma privilege to recent law school graduates, the district will join a small group of states that have done so in the midst of the coronavirus pandemic, including Louisiana, Oregon, Utah and Washington.

In Tuesday's order, the high court granted in part a July 16 emergency petition requesting diploma privilege for graduates. It noted that it has also been informally asked to consider expanding temporary practice so graduates can practice under supervision while they await the results of the Oct. 5-6 bar exam and admission.

"The court has decided to take a multi-faceted approach in response to the COVID-19 pandemic, including administration of the October 2020 remote bar exam and alternative pathways to authorized practice of law in the District of Columbia," the court said.

The court said it will also be releasing the results of the online exam by mid-December and licensing successful examinees who pass subsequent character and fitness reviews by mid-February. That means test-takers will get licensed only a few weeks later than they would have if the exam had been in July as originally planned, the court said.

"With rolling review, certifications will begin after the examination results are released," the Court of Appeals said.

The court received more than 500 comments after it asked for public input in late July, according to the order.

"In making this decision, the court carefully balanced a range of public concerns and community responsibilities," it said. "The court has a fundamental duty to regulate the bar to ensure that members of the D.C. community have competent, ethical and well-trained attorneys."

"We considered that as well as the desire of law school graduates to begin their careers and of course our responsibility to make decisions that protect the health and safety of examinees, proctors, and staff to the greatest extent possible," it added.

Diploma Privilege for D.C., a chapter of the nationwide United for Diploma Privilege movement that advocates automatic admission to the bar for qualifying law graduates during the pandemic, celebrated the court's order on Twitter.

"We are grateful to the D.C. Courts for their deliberations and for today's order," the group said. "We believe it evidences a commitment to an alternate path to licensure and we remain committed to steadfast advocacy until a final decision."

Diploma privilege advocates have lodged a string of similar requests around the country, arguing that the pandemic has led to delays and uncertainty surrounding the test that amount to an unconstitutional burden on examinees.

In California last week, United for Diploma Privilege urged the state high court to do away with its bar exam and permit law school graduates to be admitted to the state bar, calling the Golden State's plan to administer an online exam in early October "impractical, infeasible and inequitable" in light of COVID-19.

In Pennsylvania, the effort garnered the support of the Pennsylvania Bar Association, which said it backed a limited plan to allow this year's crop of law school graduates to temporarily begin practicing law without taking the exam, although they should ultimately be required to take the test one day.

A group of law students took the issue to Pennsylvania's highest court last month, arguing that the threat of cyberattacks and technical glitches rendered the test an unreliable means of gauging a would-be attorney's competence as compared with a well-regulated emergency licensure system.

Advocates also raised the issue in Florida, but the state's highest court shot down that request earlier this month.

The coronavirus pandemic has forced states to alter their bar exam policies amid caution from public health authorities over large in-person gatherings. While some states are considering whether to offer diploma privilege to aspiring attorneys or grant temporary licenses to practice law, others have moved to hold bar exams remotely.

On Monday, a group of 15 California law school deans asked the state Supreme Court to shift the upcoming bar exam to an open-book test, saying students are grappling with a slew of unprecedented challenges caused by wildfires, COVID-19 and racism.

In Michigan, which on July 28 became the first state to hold a bar exam online, there was an apparent cyberattack that caused a serious technical problem during the test, according to the exam's technology provider. Test-takers were unable to log in for the second part of the exam, forcing the state's Supreme Court to extend the amount of time allotted for the test.

--Additional reporting by Khorri Atkinson, Carolina Bolado, Emma Cueto and Matt Fair. Editing by Breda Lund.

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