Delaying Bar Exam Amid COVID-19 Is A Risky Move, Profs Say

Law360 (March 25, 2020, 9:46 PM EDT) -- With the coronavirus pandemic expected to disrupt the bar exam this summer, U.S. courts and regulators need to act fast to come up with a new way to license lawyers, and simply postponing the exam for later this year isn't going to cut it, according to a group of law professors.

Jurisdictions are probably not going to be able to administer the July 2020 bar exam because even if restrictions aimed at curbing the spread of the novel coronavirus like lockdowns and schools closures are lifted by then, limits on large gatherings could still be in place, a group of 11 licensing scholars wrote in a March 22 policy paper titled "The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action." At the same time, demand for legal services in the wake of the unfolding crisis is sure to "skyrocket," the paper said.

"These are unprecedented times: We must work together to ensure we do not leave the talented members of Class of 2020 on the sidelines when we need every qualified professional on the field to keep our justice system moving," the professors wrote.

The professors identified six licensing options and said three were promising and three were probably doomed to fail.

One of the risky options, they pointed out, is pushing back the summer bar exam to fall 2020 since scientific models of COVID-19 indicate that the U.S. is likely in store for several waves of the infection.

"Postponing the exam until early fall 2020, in fact, might situate the exam squarely in the second wave of the disease," the professors wrote. "Postponing and then cancelling the exam would be devastating for bar exam offices, exam-takers, employers, low-income clients, and small businesses."

Instead, one option jurisdictions should look into is an "emergency diploma privilege." The state of Wisconsin has used this privilege to license most graduates of the state's schools without requiring them to take a bar exam, and other jurisdictions may want to implement it for graduates of the class of 2020 — as well as those who graduated in December 2019 — from accredited law schools, according to the paper. Those who previously have failed a bar exam in any state could be excluded from this option.

One issue with that alternative is that graduates would be limited to practicing in the same jurisdiction as their law school, but jurisdictions could weigh extending the privilege to graduates in other jurisdictions that promise reciprocity on the emergency measure, according to the paper.

"This option 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," the professors wrote.

Another viable avenue, the professors said, is allowing jurisdictions to implement the emergency diploma privilege while adding one or more eligibility requirements, such as completing online courses or exams that supplement the Uniform Bar Exam, completing a clinic or externship, or finishing Continuing Legal Education programs.

A third potential option, they said, is having jurisdictions license law graduates who finish 240 hours of legal work under a licensed lawyer's supervision and submit an affidavit from their supervisor.

"This option would offer a particularly rigorous assessment of graduates' competence because it would require demonstration of a wide range of knowledge and skills required for practice," the professors said, adding that this option would allow jurisdictions to license lawyers graduating from law schools in any state.

Like the postponement option, two other licensing avenues — holding online exams or administering exams to small groups — were discouraged by the professors. They said online exams raised questions about exam security and access for test-takers. Holding exams for a smaller set of test-takers at a time would require more advance planning and proctors, the professors said.

The authors of the paper include Mary Lu Bilek, dean of the City University of New York School of Law and a member of the American Bar Association's section on legal education and admission to the bar; Carol Chomsky, a University of Minnesota Law School professor; and Andrea Curcio, a Georgia State University College of Law professor.

Even though each jurisdiction is different, courts and regulators needed to start moving toward a solution now, according to the paper. Each year, more than 24,000 graduates of ABA-accredited law schools start jobs that require bar admission, and the legal system relies on this steady influx to keep pace with client service, the professors wrote.

The COVID-19 crisis "will dramatically increase the need for legal services, especially among those who can least afford those services," they said. "We cannot reduce entry to the profession at a time when client demand will be at an all-time high."

--Editing by Jill Coffey.

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

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