Now is the time for many state authorities to act decisively to avert more pandemic driven bar exam chaos. Without prompt action more testing failures, disruption, and delays are almost certain.
The evidence is in. The case is open and shut. Conventional in-person bar exams cannot and need not be held, at least so long as the COVID-19 pandemic makes them impractical and unsafe. Many states canceled scheduled in-person exams. Then at its August annual meeting, the American Bar Association passed a resolution that going forward this was the responsible thing to do given the scope and persistence of the global health emergency. Now what?
Overwhelming and mounting evidence indicates that simply expecting all candidates to take a remote online test is not yet technically feasible. It is also clear that postponements of licensing and requiring candidates to take the exam at home impose unfair burdens on many aspiring new lawyers, especially those with student debt and no jobs. Hardest hit are the underprivileged and disabled whose communities are underrepresented despite years of effort to make the profession more diverse. Anticipating these problems some states like New York acknowledged that the numerous challenges posed by remote exams administered by the National Conference of Bar Examiners must be addressed.
The ABA urged states to “safeguard the reliability and security of online software, provide reasonable accommodations to all applicants and disclose plans related to data collection, security protocols, exam coverage scoring or grading and portability.”
So far this has not happened. Online exams already held have been rife with system glitches. One vendor bidding to provide the necessary software withdrew on the basis that the task was impossible given the timetable. Florida for technical reasons canceled its remote exam the weekend before it was to be given. There are remote exams scheduled in October. Several states intend to simultaneously test online tens of thousands of candidates, something never before attempted. Meanwhile, with fewer than 40 days to go, there are scant details and even lower confidence about the technical wherewithal to make sure remote exams work. Experts also point out serious problems with scoring and grading the remote exams. State authorities such as the small staff of New York’s Board of Law Examiners must be overwhelmed. At this point the probability of failure is high.
The good news is that there are several straightforward emergency options within the power of state licensing authorities to adopt immediately that can minimize the difficulties and disparate effects of remote tests. It also is possible to quickly build on existing programs that states and law schools designed in recent years to assure that law graduates are competent, ethical, and committed to our profession’s responsibility to serve the public.
This can be accomplished with four steps:
- Make the online test one option rather than the exclusive requirement.
- Offer it more frequently than the old fashioned in-person exam.
- Enlist the private bar to pitch in to provide infrastructure and volunteers.
- Tweak existing programs to establish an optional pathway to a law license without an exam. That is, expeditiously develop temporary optional routes to licensed practice without an exam that are best suited to local circumstances. Such “no test” options can be rigorous, fair, and efficient, economically sensible while being specifically tailored to promote the availability of good affordable legal services adequately trained in local law.
Here is how:
As some states have already done for graduates of ABA-accredited law schools, more states and territories can respond to the emergency by clearing paths to a license that do not require graduates to take the NCBE’s Uniform Bar Exam. Such paths to practice might include, for example, in addition to a diploma, paid work with a provisional license under the supervision of a qualified attorney. The supervisor would certify competence in, knowledge of and experience with local law after a reasonable period of time if and when their mentee is ready. Other requirements that might be added could include passing an ethics test which most graduates do before graduation, and/or additional CLE on ethics and state law. Perhaps throw in additional requisites for converting a provisional license into a regular license, such as mandatory pro bono or service hours (already required in New York), which even might be keyed to the unmet public need for COVID-19 related legal services.
There are many variations for how each licensing jurisdiction might temporarily depart from past procedures to deal with a once-in-a-century health emergency. Each can develop pathways to practice that are sufficiently demanding and useful preparation for entry into the profession. It is not likely that regulators will allow graduates who work their way to practice without taking a test to unleash on the public the legal version of the hounds of hell.
After all, every candidate for a no test option would first have to earn their J.D. Trust me that is not easy. Each successful graduate did everything the ABA, state regulators, and the faculties of their law schools required them to do while being constantly tested, graded, ranked, and supervised, all while getting practical experience and performing many free hours of public service before graduation. Law school graduates should be ready to begin practice. In truth, law practice is a career-long open book exam and learning experience.
Immediately putting a no test option in place would be a sensible hedge against very likely problems with the remote exams now scheduled. It also would help make a remote exam option more manageable, because if nothing else it would reduce the number of test-takers. Out of state candidates and others who are more inclined to take a test than to earn their license through supervised work might prefer the remote exam option. Graduates of unaccredited schools would be required to take this path. Smaller test cohorts, greater flexibility, and choice also would be afforded by offering the exam more frequently. This is what the company that administers the LSAT has done successfully since it was initially prompted to do so by the necessity of severe weather emergencies a few years ago.
Change is not unimaginable and business, as usual, is not acceptable. For starters, local bar associations could help state examiners to organize a “Dunkirk” like rescue by law firms and lawyers. Many private firms might be asked to offer a veritable fleet of safe, technologically viable testing sites in offices that have state of the art facilities and good health protocols. This assistance is needed because many candidates do not have the facilities at home, and many law schools lack acceptable test sites and budgeted funds to rent suitable venues. Perhaps attorneys who volunteer to supervise provisional graduates, proctor, and grade exams could earn CLE credit. This incentive, by the way, will help employers overcome their reluctance to hire and supervise unlicensed attorneys.
Whatever the merit of these suggestions, the point is that given the collective wisdom and talent of our profession it should be possible to license new attorneys during the health crisis without undue delay. Without immediate action, the attendant problems will become worse and solutions will be more difficult as more new candidates graduate. It is not someone else’s responsibility. Each and every one of us should be informed, engaged, and willing to help admit qualified new lawyers into the profession, especially for the uncertain duration of our shared emergency. No less than the future of the profession and the wellbeing of the public is at stake.
JURIST carries extended coverage of Bars Exams in the Pandemic.
Nicholas W. Allard is an educator and lawyer with international and national prominence in higher education, public policy, U.S. and international government relations, technology, and innovation. He served as President (2014-18) and Joseph Crea Dean (2012-18) at Brooklyn Law School where he also has been a tenured Professor of Law. He is Senior Counsel at Dentons, the largest law firm in the world with offices in more than 80 countries and throughout the United States. Nick has been particularly focused on initiatives to make legal education more accessible, affordable, and valuable especially for underprivileged aspiring attorneys whose communities have been underrepresented by the profession. In recent years he has been outspoken about the need to improve licensing of new lawyers.
Suggested citation: Nicholas W. Allard, Act Now, Avert More Bar Exam Chaos Later, JURIST – Academic Commentary, August 26, 2020, https://www.jurist.org/commentary/2020/08/nicholas-allard-act-now-diploma-privilege/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
