The bar exam, a punishing rite of passage into the legal profession, has been under attack as more experts question whether the two-day ordeal is really necessary to maintain the quality of lawyers.
And now, packing recent law school graduates together is a health hazard: A Colorado graduate last week tested positive for the coronavirus after taking the multi-day test at the University of Denver.
The in-person exam in Pennsylvania, initially scheduled for July, was postponed twice because of the pandemic. Law school deans, the Pennsylvania Bar Association, and students have sought “diploma privilege” – meaning that graduates from accredited law schools could start jobs as law firm associates without the exam.
But on Thursday, the state’s Administrative Office of the Courts declared that anyone who registered for the bar exam must now take it online Oct. 5 through 7. Yet the uncertainty isn’t over for new graduates, who could wait months longer to get their results.
Katie Ott graduated in May from Temple University’s Beasley School of Law. She is working as a clerk at a midsized law firm, but can’t be employed as an attorney until she takes and passes the bar.
“I haven’t been able to pay my rent for so many months,” said the aspiring trusts and estates lawyer. “It’s already a strain affording groceries. And there’s no sign of it getting better. If the test doesn’t go through in October, I don’t know where that will leave me.”
Online tests have been fraught with problems in other states.
In Michigan on July 28, hackers launched a cyberattack on the exam website and crashed it about an hour into the test. In Indiana, software glitches postponed the exam for several days. In Nevada, technical issues delayed the exam for two weeks.
“The Board [of Legal Examiners] is taking the experiences in other states into account in shaping its procedures for the remote examination,” said a spokesperson for the Pennsylvania Administrative Office of the Courts.
Pennsylvania has yet to choose an online exam provider, said Danielle M Conway, dean of Penn State Dickinson Law and an outspoken advocate of diploma privilege.
“It is unfortunate that the Pennsylvania Board of Law Examiners is not considering the desperate measures that will result from their decision,” she said.
“The graduates are made to bear this tragedy on their own.”
Many recent grads don’t have adequate Internet service to sustain a two-day test, let alone a quiet space in their homes where they can take the exam, Conway said.
“It’s really disappointing,” Ott said. “Having the space to take the test is a huge factor, especially if you don’t live alone.
“The real hardship is the fact that we’re not going to find out if we passed it until ‘hopefully December,’ they’ve said. Which means we won’t be licensed attorneys until then.”
In New Jersey, where the state bar exam also has been postponed twice, faculty at Rutgers Law and Seton Hall Law asked the New Jersey Supreme Court last week to grant an emergency diploma privilege for recent grads. The state plans to administer a remote exam on Oct. 5 and 6.
Proponents argue that four years of undergraduate work and three years of hustling for a juris doctor degree should be adequate to show professional competency, especially during a time of crisis.
Diploma privilege would be extended only to graduates who already have registered for this year’s bar exams and haven’t previously failed the test. New lawyers could still be rejected if they don’t pass the bar’s “character and fitness requirements,” which are similar to a criminal background check.
Last summer, 1,270 aspiring lawyers sat for the exam in Pennsylvania. About 73% of those passed on their first attempt, according to statistics published by the state Bar Association.
Diploma privilege is rare in the United States, according to David E. Schwager, president of the state Bar Association.
“But there are already four states that have adopted it” in lieu of their 2020 bar exams because of COVID-19: Utah, Oregon, Louisiana, and Washington, he said.
A. Michael Snyder, chancellor of the Philadelphia Bar Association, said the association had suggested that diploma privilege expire a year after the end of Gov. Wolf’s state of emergency.
“There’s the potential of firms saying ’we see you came in under the diploma privilege. You’re not qualified. You never took the bar exam.’ The firm could consider them less than a lawyer,” Snyder said.
Conway questions whether the bar exam is even worthwhile.
Wisconsin, for instance, has had diploma privilege since 1870, said Conway, who graduated cum laude from Howard University School of Law. “I remember taking the bar exam decades ago and thinking, ‘Why is this even necessary when there’s a state out there with diploma privilege.‘”
“There are other ways to test competency,” Conway said. “It is true that the bar exam has become a rite of passage, but that rite should be evaluated for its relevance to what a new lawyer will be expected to do when entering the profession.”
Conway calls it an exercise in “gatekeeping.”
“It rewards memorization, it rewards test-taking endurance, and privileges those who have access to wealth, information and circumstances that make studying for the bar exam a full-time job,” she said. “This crisis is giving us an opportunity to have meaningful discussions about it and we should not let that opportunity to consider alternatives lapse.”