July bar exam is anything but a sure thing; options are being floated

With every passing day, the July bar exam appears to be a likely COVID-19 casualty.

Already a number of jurisdictions —  such as New York, New Jersey, Massachusetts, Hawaii and Connecticut —  have postponed the exam, and it’s likely that others will follow suit. A number of states have prohibited large gatherings to help stem the spread of COVID-19.

Additionally, a growing number of soon-to-graduate students are pushing for alternatives, including letting them practice without taking the bar. 

They have a legitimate argument. The longer graduates have to wait to take the bar, the longer they can’t practice.

Meanwhile, some jurisdictions are pushing for an alternative, one that would allow graduates to work under the supervision of licensed attorneys for a brief period. The ABA Board of Governors has endorsed that too in a rare resolution

The postponements are not exactly surprising, particularly in New York's case. New York City has been hard hit by COVID-19. The state has reported the most cases, and its health care system is being overwhelmed.

The National Conference of Bar Examiners said each jurisdiction is allowed to postpone the bar if they see fit and also has offered later alternative dates.  Jurisdictions that opt to delay the exam can hold it on either Sept. 9 and 10 or Sept. 30 and Oct. 1.

The organization added that it will decide whether to move forward with the July test on or about May 5.

A number of legal education experts had predicted the disruption and wrote a paper called “The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action.”

Postponing the bar was one of the six options they laid out. However, the educators warned how pandemics normally have waves of infection periods, making it difficult to know when to reschedule. They wrote:

“The probable wave-like nature of the pandemic means that it is impossible to predict a time in 2020 when any jurisdiction could safely schedule an exam administered to large groups of people. Postponing the exam until early fall 2020, in fact, might situate the exam squarely in the second wave of the disease.

That possiblity has raised the concern of New York City law school deans. They are lobbying for the previously mentioned alternative - allowing graduates to practice law under the supervision of New York licensed attorneys. They could sit for the bar later or, given these extreme circumstances, not be required to take the bar. The New Jersey Supreme Court is moving forward with a plan to let graduates work with attorneys. They would have to take the bar when it's rescheduled. 

Having graudates work with attorneys was one of the options laid out by the legal educators in their paper. 

Still another option was to let graduates practice upon graduation without taking the bar. Wisconsin, for instance, has a diploma privilege, which allow graduates to practice without sitting for the bar. However they can only practice in that state.

The Utah Supreme Court has proposed doing the same thing for graduates this year. However, they would still need to work under an attorney for 360 hours. And only grads from schools with a bar passage rate better than 86% would qualify. 

New York law school students would like to see such a concept put in place. More than 1,000 signed a letter written to the state task force on the exam, saying they should get “emergency diploma privilege.”

The students, who hail from all 15 of New York’s law schools, wrote:

“We understand the importance of the bar examination as a method for measuring legal competencies. However, we do not believe that our careers should be put on hold in these circumstances. We must begin the hard work of rebuilding the lives of our friends, families, and neighbors through upholding the rule of law and fighting for justice.”

They are hardly alone. Harvard Law School students are asking for the same thing. Students in Ohio are pressing it too. There's a national effort as well, with students petitioning the NCBE.

In part, they wrote:

"Beyond the human cost, law students graduating in the class of 2020 are faced with what is turning out to be the greatest economic shutdown in modern history. Already we have seen mass layoffs. There could not be a worse time to be entering the job market for any profession, let alone the highly-competitive legal profession. The uncertainty over the bar exam only compounds our uncertainty about our future employment prospects. The average law school graduation debt is $100,000 per student."