The Activist Guide to Passing the Bar Exam

Please do not hold the bar exam this year. Do not hold it in July. Do not hold it in September. Maybe not even next February. Figure out a better way to license attorneys. There are many options.

Recent liability waivers from Mississippi and North Carolina demonstrate that you understand the serious dangers posed by taking a two-day exam in person surrounded by a lot of other people. The fact that you are finding it difficult to find proctors and are asking for help from “young attorneys” says that your own people are telling you it is too risky.

Putting hundreds, or even dozens, of stressed out people in a room together for hours and hours in the midst of a global pandemic is a public health disaster. Temperature checks only tell you if someone has a fever, not whether someone has the virus. Many transmissions if COVID-19 occur from asymptomatic individuals. Masks are helpful, but not 100% effective. Some of you are permitting masks but not requiring them, leaving many potential carriers the option of exposing those around them. Have you tried to do 100 MBE questions with a mask on? The anxiety surrounding the bar exam is immeasurably high in normal times. This, is taking it to an unimaginable new level.

There doesn’t have to be a bar exam. But if you think there does, you can do it online, as Nevada and Indiana will be doing. Those of you in UBE states may feel that you no longer have the capacity to administer your own exam. But you did it not that long ago. You can do it again. There are expert exam writers at your local law schools who can help. You could even work together and have each state draft one essay question. There are many options. Please explore them.

There are concerns about exam security. But if that is the driving force for having an in person exam, then you are prioritizing fears about cheating over the protection of human life. Do you really think so little of the next class of attorneys that they must risk their lives to prove to you that they would not cheat on an exam?

Ask yourself honestly, would you take the bar exam during this pandemic? Would you encourage your child to? Do you really want to be responsible for the next surge in your community?

You may counter that hundreds of applicants have registered so they must want to take it. But what they want is to be a licensed attorney. Their registration is a product of employer pressure, fear, and the perverse incentives of the legal profession. Despite their registration, they are terrified.

We owe it to the newest members of our profession not to sacrifice their health for the sake of the status quo. Nothing is the same right now, and it shouldn’t be. We are in the midst of a worldwide health crisis. Is the bar exam actually worth risking their lives for? Is there really no way to determine who is minimally competent to be an attorney, other than to have them all gathered together in a room for two days?

The purpose of the bar exam is, ostensibly, to protect the public. What about protecting law graduates?

These waivers may protect you from legal liability, but if you go forward with an in-person bar exam, you will still be responsible for spreading COVID-19 throughout the population of new law graduates, their friends, families, and communities. How can this possibly be the right decision?

I’m working on a list of questions regarding the physical space at bar exams this July/September. Here is the beginning of the list. If you are/were going to be taking an in-person bar exam this year, what questions would you have about the physical set-up and health and safety measures?

• Will applicants be required to wear masks or face shields?
• Will there be temperature checks?
• How far apart will applicants be seated?
• Will masks and hand sanitizer be made available to all applicants?
• How far will proctors be seated from applicants?
• Will proctors be wearing masks and gloves?
• If a technician needs to touch an applicant’s computer, will sanitizing wipes be available to ensure the computer can be disinfected?
• What will be the protocol for the lunch break? Will applicants have to leave the building?
• How will social distancing be observed in the personal belonging rooms?
• How will social distancing be observed in restrooms?
• How will social distancing be observed in security lines and when exiting the exam room?
• Who will determine if an applicant who appears for the exam cannot sit for the exam on the scheduled dates? Will they be given a refund?
• If an applicant does not feel that the situation is safe and withdraws from the exam, can they obtain a refund?

If you have other ideas, please leave them in the comments or find me on Twitter (@allierobbins) or Facebook (https://www.facebook.com/allieat.cunylaw).

Yesterday, the Florida Board of Bar Examiners released guidance that gives us a glimpse of what taking the bar exam in July 2020 will look like.

Highlights include:

• All applicants will have their temperature checked and applicants with a temperature of 100.4 degrees Fahrenheit or higher will not be permitted to take the exam.
• Applicants will be required to wear a mask throughout the entire test.
• There will be one applicant per table, and they will be seated at least six feet apart from one another (this is actually much nicer than the usually squished bar exam seating arrangements.)
• Out of state applicants may be required to quarantine for 14 days prior to the start of the exam.

Can we please just end this now? I am tired of having to counsel my students through various decisions based on how sick they might get if they choose to take an exam at a certain time or in a different state, because legal employers insist that they take the next bar exam, and bar examiners are determined to go forward with traditional testing, regardless of whether it is safe or healthy to do so.

Are we really so beholden to the status quo that we completely disregard the physical and mental health of our recent graduates? How can we be so cavalier and heartless as a profession? Is this how we want new attorneys to approach their jobs? Work at all costs, even if it could make you and those around you physically sick?

Excellent attorneys are forward-thinking and demonstrate compassion. They can change course and make a new plan when their current strategy isn’t working. They make a plan, reflect on that plan, and make a new plan.

The fact that this is really the plan for the class of 2020 demonstrates none of these qualities. Maybe the bar exam doesn’t test minimal competency after all.

A few days ago, the National Conference of Bar Examiners released a white paper entitled Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020.

Predictably, NCBE argues strongly against diploma privilege and the expansion of supervised practice orders, and for the bar exam as the only measure of evaluating lawyer competence and protecting the public from malpractice. Further, the NCBE goes to great lengths to insult law schools, law faculty, and lawyers. NCBE states that “diploma privilege would create inconsistency in the qualifications of new lawyers (dependent on which school they attended) and introduce subjectivity into the standards for minimal competence to serve the public, with each ABA-accredited school deciding whether an individual student is qualified. This creates an extraordinary conflation of roles for law schools—to be both educator and licensing authority.” The white paper further goes on to say, “Academic assessments used in law school classes are prepared and graded by individual professors and are naturally of varying degrees of quality and rigor from one professor to the next and from one law school to the next. In contrast, the bar exam meets the professional standards for testing at the level of quality and reliability needed for a licensure exam and ensures consistent standards are applied to all who earn the privilege of practicing law,” Additionally, the white paper classifies diploma privilege as extreme, and states that it will diminish public protection.

NCBE doubles down on its disdain for law schools later in the paper when it states, “some of the proponents of diploma privilege argue not only that it is necessary because of uncertainty about whether the bar exam can be administered, but they also assert that the bar exam does not measure competence to begin practice. In fact, the exam is designed for exactly that purpose (a claim that can’t be made regarding law school curricula) and has been used for decades to make licensing decisions.”

But what is the point of law school, if not to teach students to become passionate, ethical advocates? Further, the concept of subjectivity is not foreign to the bar exam. There is subjectivity in every part of the bar exam (yes, even the MBE). There is inconsistency among graders in the same jurisdiction, and across states that have adopted the UBE. Additionally, not every applicant achieves the same exact score on the bar exam, so there is always a variation, even if you believe that a UBE score is a valuable indication of being qualified to practice law.

Even more remarkable is NCBE’s attempt at making the bar exam the savior of first-generation law students by saying that supervised practice orders would leave them behind. “Additionally, supervised practice can create conditions for unequal opportunity, as students must find licensed attorneys to supervise them in order to qualify. Well-connected students might not struggle to find a licensed supervising attorney, but first-generation law students from socioeconomically disadvantaged families might find it difficult to do so.” The bar exam itself is racist and creates conditions for unequal opportunity.* The white paper admits as much when it states, “regarding disproportionate impact, it is true that differences in average performance on the bar exam tend to be observed across racial/ethnic groups. However, the same or greater differences in average performance across racial/ethnic groups also tend to be observed in performance in law school (law school GPAs), on the LSAT, and in undergraduate GPAs. Similarly, gender dif-ferences in average performance observed on the bar exam are also observed in law school and on the LSAT.”

Law schools can work with students and the legal community to find supervised practice placements, and can help to make sure no student is left behind. Centering the bar exam as the method for eliminating disparity in the legal profession is disingenuous and appalling.

At the end of the white paper, NCBE doubles down on its argument that law students today are “less qualified” than they used to be because law schools have lowered admissions standards (meaning LSAT and UGPAs have declined some). This argument ignores the fact that those traditional academic indicators share many of the same defects as the bar exam itself.

The NCBE goes even further by pitting law schools in direct opposition to courts and clients. “While law schools are not obliged to hold their entering classes to the exact same standards year after year, there should be no compromise in ensuring that students’ competence to enter practice meets the jurisdictions’ determination of minimum competence. The bar exam is the most important reliable, independent, objective assessment of graduating student competence. Law schools are student-centric and understandably have an interest in seeing all their graduates authorized to practice law. A court’s interest, in contrast, is to ensure that the public can rely on the fact that the individuals who receive a license are, in fact, proficient to represent the public.”

While a strong defense of the bar exam is to be expected from the NCBE, I hope that this white paper is a wake-up call to lawyers, law students, and law schools that defend the bar exam and the NCBE, as their disdain for us all comes through quite clearly. It’s really a wonder that any of us have ever been allowed to practice law given how unqualified and student-centered we are.

*Here are a few recent studies that include racial (and gender) breakdowns of bar passage rates: https://nysba.org/app/uploads/2020/03/Report-of-the-Task-Force-on-the-New-York-Bar-Examination.pdf, https://www.nybarexam.org/UBEReport.html, http://www.nycourts.gov/ip/bar-exam/appendices.shtml

A group of powerhouse leaders in legal education and bar admission just published an article on SSRN called “The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action“

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The authors lay out six options for licensing:

1. Postponement
2. Online Exams
3. Exams Administered to Small Groups
4. Emergency Diploma Privilege
5. Emergency Diploma Privilege-Plus
6. Supervised Practice

I encourage all bar examiners to read their short article, and to pay particular attention to the Emergency Diploma Privilege option.

A huge thank you to Professor Angelos, Director Berman, Dean Bilek, Professor Chomsky, Professor Curcio, Professor Griggs, Dean Howarth, Professor Kaufman, Professor Jones Merritt, Provost Salkin, and Professor Wagner for their comprehensive and speedy work.