Emergency bar admission rule for law grads

This week, the American Bar Ass'n passed Resolution 10G, which urges states to cease in-person bar examinations until which time that they can be carried out with appropriate attention to the examinees' public health.  It further invites states to consider which mechanism of licensure is appropriate, whether providing a remote bar exam (if that could be administered effectively, given technology issues), limited practice under professional supervision, a diploma privilege, or some other device. 

This resolution is merely advisory, as these choices are all made within the states, and typically via the state high court.  Moreover, the resolution comes too late for the graduates in the twenty-three states that late last month gathered to take in-person exams.  There is one documented case (Colorado) of an examinee testing positive for COVID-19.  We can only wonder whether and to what extent there are other cases.

I was pleased to participate in the debate on behalf of this resolution, a resolution supported by myriad organizations within the ABA.  Notably, however, members of the board of trustees of the Nat'l Conference of Bar Examiners opposed this resolution.  Curious and dispiriting, but ultimately unsuccessful, as the resolution passed by a wide margin.

Prof. Deborah Merritt of Ohio State gave oral testimony to the House of Delegates on this matter.  It is an especially cogent statement of the dilemma and the reason for decisive action.  I reproduce it here in full:

"Thank you, Mr. Chair. This is a very simple resolution. It calls first on states to postpone in-person bar exams until health authorities declare them safe. That is a necessary recommendation. By the end of this month, COVID-19 will be the third leading cause of death in the United States. For most victims, it is a prolonged, painful, and lonely death—one without family or loved ones at their side. Even for victims who survive, there are long-term consequences that we are just starting to understand. That’s not what we want for applicants to our profession. Nor is it what we want for the support workers who will clean the toilets, floors, tables, snack bars, and hotel rooms used by these applicants.

Gathering hundreds of young adults in a single city spreads COVID-19, especially when those adults come from all corners of the state and country. It is horrible to think of an exam-taker falling ill from COVID-19, lying helpless on a ventilator, and perhaps dying from this disease. It is equally horrible to think of low-income workers suffering that fate because our profession was not willing to adopt alternative methods of licensing during a fatal and uncertain pandemic.

This resolution also urges states to adopt one of those alternative methods, rather than simply halt licensing. That recommendation is just as important. Half of newly licensed lawyers work for government agencies, nonprofits, or law firms with fewer than 10 lawyers. New attorneys are an essential part of the team in those offices. I know this because I have taught those new lawyers for 36 years and closely followed their work after graduation. Many of you know this too: You work with new lawyers in the organizations and law firms that serve the most vulnerable clients. If states don’t find alternative ways to license these lawyers, even if just through well-supervised, temporary licenses, we will be reducing the flow of legal support to disadvantaged members of our communities—just when the pandemic and economic hardships have dramatically increased their legal needs.

I have just completed a nationwide study of the work that new lawyers do, as well as the knowledge and skills that they need for their work. Together with the Institute for the Advancement of the American Legal System and more than two dozen researchers, we held 50 focus groups with new lawyers and their supervisors in 18 locations around the country, from rural North Carolina to Silicon Valley. I led that project, have read all of the transcripts, and coded the data. I know from that work that there are many ways to assess minimum competence on an emergency basis, during this pandemic only, that won’t impose the health risks of an in-person exam. The resolution leaves the choice of method to jurisdictions.

This is not a resolution about the future of the bar exam—or about granting diploma privilege to all 2020 graduates. A few states have chosen that route, and this resolution recognizes that. This resolution is about many ways to solve a once-in-a-lifetime urgent problem. We have ways to solve this problem that will preserve access to justice, protect the integrity of the profession, and respect the health of our communities.

One of those ways is through a remotely administered, online exam. That’s what the third part of this resolution addresses, laying out a series of recommendations that are simply best practices for an online, high-stakes exam. Most of these appear in the Standards for Educational and Psychological Testing, known as the “Bible” to all test-makers and administrators. These are the standards that NCBE itself follows.

We cannot administer an online, high-stakes exam without assuring that the online platform works, that reasonable accommodations have been provided to test-takers, that we follow data privacy protocols, that we provide information about exam conditions to candidates in advance, and that we assure the reliability of the exam’s cut score. NCBE is providing the materials for this online exam, but it is leaving these other matters to jurisdictions. Jurisdictions urgently need the recommendations in this resolution. Without them, we risk administering exams that do not serve the purpose of reliably measuring minimum competence.

Friends, I am not a voting member of this distinguished body. I am just a law professor and part-time prosecutor preparing to teach a clinic online in two weeks. But I can tell you that we need this resolution. Our communities need it to protect their health. Vulnerable clients need it to continue their access to legal services. Candidates for admission need it. And our profession needs it to affirm our ethic of responsibility. I ask you to vote in favor of the resolution."