August 27, 2020

COVID-19 and the Bar Exam

Balancing Safety and Legal Profession Concerns

Anxiety over when and how new graduates will be able to take a bar exam has overtaken the pride and satisfaction they felt in earning their degree.

Anxiety over when and how new graduates will be able to take a bar exam has overtaken the pride and satisfaction they felt in earning their degree.

COVID-19 has forced our country to adopt restrictions to keep all of us safe during this pandemic. There are still many who consider government-imposed regulations a violation of their civil rights, but most people are following scientifically available guidance, and, in many states, infection rates have consequently slowed. Such improvements have persuaded many governors to let restaurants, office buildings, and schools to open, provided people continue to wear masks, maintain social distancing, and sanitize their hands. But the race to ease restrictions while the pandemic continues has left many people confused or in professional limbo, including recent law school graduates who planned to take the bar exam this summer.

Anxiety over when and how new graduates will be able to take a bar exam has overtaken the pride and satisfaction they felt in earning their degree. Many states have delayed making decisions on whether to postpone the bar exam in hopes that things will improve, but continued delays are likely to make things worse as bar admission candidates from the spring of 2020 could have to compete for a spot to take the winter bar exam with those graduating mid-year.

Even in jurisdictions that have proceeded with their exams, decisions have been difficult. On August 4, 2020, the ABA House of Delegates heard from young lawyers and law students about the unsafe conditions at some in-person bar exams, with candidates having to choose between risking their health and that of their families or delaying the chance to practice law until it is safe. For jurisdictions offering a remote exam, software glitches created problems that required some cash-strapped candidates to buy new computer hardware as a condition of taking the exam. Ultimately, a divided ABA House of Delegates adopted policy that supports new law school graduates and calls on jurisdictions to adopt temporary examination and admissions procedures for those graduating or seeking admission to practice during this pandemic.

Two days after the ABA House adjourned, ABA President Trish Refo sent a letter to the Conference of Chief Justices calling on the Conference to develop a national strategy under which each jurisdiction would take appropriate action along these lines. Such measures might relate to the administration of the bar exam itself or to a special temporary admission to the bar, e.g., “diploma privilege.” These would be temporary changes and only as necessary to address the public health and safety issues presented during this crisis, while keeping open the doors to the legal profession.

Some have questioned whether the ABA’s new policy would have an impact, given how quickly jurisdictions must decide what to do. Within 24 hours of the ABA House vote, however, the adopted resolution was cited in support of an August 5th order by the Nevada Supreme Court to state bar examiners concerning the administration of a remote bar exam.

The ABA’s new policy will not guarantee a particular outcome by any jurisdiction, but it will hopefully help improve conditions for test takers and increase transparency over the process by shining a light on the challenges involved. The policy also helps new graduates and others seeking admission to practice law during the pandemic know that their concerns are understood and heard by the American Bar Association and the entire legal profession.