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Law360 (September 30, 2020, 10:24 PM EDT) -- In one of the latest legal battles over October bar exams affected by the ongoing pandemic, law school graduates are asking the California Supreme Court to drop its plans for a remote test due to concerns over technical glitches and are pushing for provisional licenses to be issued instead.
On Tuesday, two law school graduates filed an emergency petition asking the state high court to cancel the remote bar exam and grant those signed up to take it provisional licenses. The request comes after California last week shot down an effort to do away with its bar exam altogether and institute diploma privilege, through which law school graduates can be granted admission to the bar without taking the test.
Tuesday's petition cites the technical problems experienced by ExamSoft, the company administering the exam. It also argues that if the exam does move forward, it should make the test open-book and drop the video and artificial intelligence monitoring, which many have pointed to as a potential source for technical issues as an estimated 30,000 to 40,000 test-takers attempt to upload both exam and video files on the day of the exam.
The petition also noted rising COVID-19 cases in California and the wildfires raging in multiple parts of the state and associated power outages. These problems have affected students' ability to study and may impact their ability to take the October exam, the petition argued.
Evan Schweitzer, a Pepperdine University School of Law graduate who is one of the aspiring attorneys behind the petition, said that the goal was for the state to ensure that its licensing this year was equitable for everyone.
"In a normal year, the bar exam is administered in a controlled environment that gives each applicant an equal opportunity to succeed," he told Law360 in an email. "They don't have to worry about their kids barging into the room, or the internet going out, or the construction next door. This year is fundamentally different."
He said he is concerned about technical glitches on the day of the exam, which could cause some applicants to fail.
"I hope the court will make make a decision rooted in compassion and understanding," he said. "Applicants are desperate for relief."
Students and advocates in many states have pressed local courts to adopt diploma privilege in response to the challenges the COVID-19 pandemic poses for the administration of the bar exam. Most states were forced to delay the July exam, and more than a dozen jurisdictions are now scheduled to conduct the test remotely on Oct. 5 and 6, despite concerns about the exam software.
Some states have also adopted provisional licenses, which give graduates a temporary license to practice, typically under the supervision of another lawyer, for a certain amount of time before being required to take the bar exam.
Washington, D.C., recently became the fourth jurisdiction to grant recent graduates some form of diploma privilege due to the COVID-19 pandemic, but declined a request to lessen its original conditions for admittance to the bar under this system.
Under the grant of diploma privilege in D.C. — which followed similar orders in Utah, Washington, Oregon and Louisiana — those who graduated from law school in 2019 or 2020 and who are registered to take the bar exam in October or next year could choose to be admitted to the bar without taking the test, provided they meet certain criteria. Among other things, graduates would need their law school dean to attest to their character and competence and would not be eligible if they have previously failed the exam.
The D.C. Court of Appeals said Sept. 28 that recent law grads who take advantage of the diploma privilege option will have to work for three years in the district under the supervision of another attorney as originally ordered, denying a request that the court lower the requirement to six months. The court also declined to extend from Sept. 26 until Oct. 2 the deadline to withdraw from the remote bar exam, which is still scheduled to take place on Oct. 5 and 6.
--Editing by Alanna Weissman.
For a reprint of this article, please contact reprints@law360.com.
