ABA Must Seize Opportunity To Respond To Bar Exam Chaos

By Nicholas Allard
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Law360 (July 31, 2020, 3:53 PM EDT) --
Nicholas Allard
Nicholas Allard
The American Bar Association was established in 1878 to improve legal education, to set requirements for gaining admittance to practice, and to facilitate the exchange of ideas and information among members of the profession.

As the ABA's first-ever virtual annual meeting continues through Tuesday, it will soon consider and vote on a new resolution that goes to the heart of its worthy founding purposes. This proposal could prove to be one of the most important measures ever to be before the ABA for many reasons.

Resolution 10G will be considered by the ABA House of Delegates, the organization's policymaking body. In brief, the resolution urges the highest court and bar admissions authority in each of the 50 states, the five territories, the District of Columbia, and Native American tribes to take emergency actions with respect to the admission to the bar and licensure of new attorneys that best fit the local circumstances of each jurisdiction.

The resolution is accompanied by a detailed report that explains the pressing need for additional adjustments to the steps already taken, but are now demonstrably inadequate, in the wake of the ongoing COVID-19 crisis. The report explains why local authorities should anticipate problems and accommodate and mitigate the hardships of needed new approaches that predictably will hit the less advantaged and disabled especially hard.

What is apparent is that no less than the future of the profession is at stake. It is not someone else's responsibility. Each and every one of us should become informed, engaged, and be open to ways to pitch in and help make the novel approaches work.

Although 23 jurisdictions held in-person exams on July 28 and 29, 11 others have postponed and still plan to administer them in September. A growing number have announced or are considering other options, including offering a remote online exam.

Resolution 10G builds on the foundation laid in April by an earlier ABA resolution (No. 77). It addresses the unforeseeable new developments in the bar admissions landscape over the last four months.

First, Resolution 10G urges the highest court and bar admissions authority in each jurisdiction to cancel all in-person bar examinations currently scheduled for various dates this fall, and not to administer any other in-person bar examination until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff and local communities.

As important, the resolution further urges each jurisdiction to establish temporary emergency measures to expeditiously license recent law school graduates and other bar applicants.

Finally, the resolution also emphasizes that jurisdictions electing to administer a remote bar examination need to implement appropriate safeguards with respect to the reliability and security of the online software; provide reasonable accommodations to all applicants; and disclose plans related to data collection, security protocols, exam coverage, scoring or grading, and portability.

With a viral gun to its head, our profession is accelerating a long simmering debate over the value of the traditional bar exam. It now has an historic opportunity to serve the public need for more good lawyers and affordable legal services. We can make sweet use of the awful adversity of the pandemic with careful albeit unavoidable experimentation. Accumulating experiences and data can inform us in the future whether or not and how to change or return to the old normal.

Several jurisdictions have plans to hold remote online tests in place of in-person exams, but there are obvious challenges. Much work remains to be done in a short time and I believe practicing attorneys can help make it all work.

For example, optional, safe, technologically viable testing sites will be needed because many candidates, including less advantaged and disabled students — just the kind of people our profession has been working hard to encourage — often do not have access to appropriate online facilities at home. Cash-strapped law schools lack the budgeted funds to pay for offsite testing locations.

Perhaps the private bar can organize a volunteer Dunkirk-like rescue that makes good use of many law firms' state-of-the-art office facilities that have good health and safety protocols. Authorities might also rely on licensed lawyers to voluntarily proctor the exams in dozens if not hundreds of such emergency law firm locations.

Meanwhile prospective employers should be encouraged and incentivized to overcome their reluctance to hire and supervise aspiring lawyers now who will need to take a big chunk of time off later to study, take the test, and hope for the best while awaiting results. (Firms might consider incentivizing supervisors by offering them continuing legal education credit.)

Perhaps volunteers can help authorities with more timely grading of the online test, which would in itself be a major improvement in many jurisdictions. Whatever the merit of these ideas, the point is: think creatively and we all can contribute to the effort.

Another option is to allow graduates of ABA-accredited law schools to practice by "diploma privilege" without sitting for the exam. This is an approach that has worked well in Wisconsin for decades and now will be used at least this year in Utah, Washington, Oregon, Louisiana and likely other states.

All 15 New York state law school deans, for example, have urged the Court of Appeals to adopt the diploma privilege at least on an interim basis to permit 2020 graduates to practice law. After all, every one of their graduates earned their J.D.s.

And trust me, that is not easy. Their graduates did everything the ABA, state regulators, and the superb faculties of ABA-accredited law schools required them to do, while being constantly tested, graded and supervised, and while getting practical experience and performing many free hours of public service before graduation. They should be ready to begin practice. After all, law practice is a lifelong open book exam.

A third hybrid approach is mentioned in the report accompanying resolution 10G — providing a pathway to admission through supervised practice without sitting for an exam.

If coupled with online multistate ethics testing and with ways to assure minimal competency in local law, such as adding more local law CLE requirements for new attorneys, not to mention adding an additional pro bono COVID-19 assistance requirement, this option could provide a muscular alternative to the old-fashioned bar exam.

These are hardly the only options. Some approaches may be offered in combination and all might be customized to local circumstances.

For example, remote online testing might be more attractive to out-of-state candidates, while supervised practice could be more appealing to many in-state graduates. Offering both simultaneously could make the numbers more manageable for each novel pathway to practice. Besides, given the very real prospect of unexpected problems with any new system, it is not a bad idea to have a fallback in place.

By all accounts, there is a long-standing unmet gap in available, affordable legal services for those who need counsel for both civil and criminal matters. The COVID-19 pandemic has made this disparity, like so many other social inequities, painfully more apparent.

At the same time, the new demand for legal work is off the charts for the rich and the poor, and for organizations big and small, due to the unprecedented disruption brought by the health crisis and transformational change touching every aspect of our lives. This trend is likely to continue long after the emergency eventually subsides.

Legal education in the U.S. and an American license to practice license are widely regarded as the international gold standard. Even so, in the new world of law that is dominated by accelerating change, competition, uncertainty and risk, the luster of this standard cannot be maintained by clinging to the past against all evidence and in the face of a once-in-a-century emergency.

It simply cannot be the case that the collective talent and wisdom of our profession is incapable of developing ways to cope with the health crisis, and use even multiple new ways to license new attorneys to serve the public. We might even hope that the present necessity to experiment cautiously will jump-start efforts to improve the final stage of becoming an attorney.

Until that time, approving and heeding ABA Resolution 10G is a step in the right direction. Throughout it all our golden bar can be more involved preparing graduates for practices and making the next generation of attorneys shine brighter than ever.



Nicholas W. Allard is former president, dean and a professor of law at Brooklyn Law School, and a current senior counsel at Dentons.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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