Will the Bar Exam Survive the Coronavirus?

bar examThe bar exam is a rite of passage for lawyers. It is a proctored, in-person examination administered across all U.S. jurisdictions on the same two days each February and July. This year, the February exam took place as planned. But the coronavirus and social distancing requirements have caused uncertainty for 2020’s second bar exam, which has been scheduled for July 28-29.

Graduated law students who intend to sit for the upcoming bar exam face three potential scenarios. Depending on the location of the exam, (1) the in-person portion may take place as scheduled in July, (2) the in-person portion may be postponed until one of two dates in the fall, or (3) the in-person portion may not be required at all this year.

As of May 21, at least two states (Indiana and Michigan) have announced they will develop and administer a remote exam. Two states (Massachusetts and California) have announced contingency plans to develop a remote exam if it cannot be safely administered in person this fall.

The bar exam is just one more way that the coronavirus is forcing the profession to consider the efficacy of aspects of the way attorneys are regulated and ask: does this licensing process make sense in today’s world?

A Brief History of Bar Exam Development

The National Conference of Bar Examiners (NCBE), formed in 1931, has worked to change the patchwork of approaches that states use to license attorneys to a one that is characterized by more uniform questions and standards for testing.

In 1972, NCBE unveiled the first Multistate Bar Exam (MBE), a 6-hour multiple-choice exam that could be given by all jurisdictions. Over time, most jurisdictions settled into a two-day testing format, using products developed by the NCBE, including the essay test and the performance test that replaced most of the state-specific test topics. Virtually all jurisdictions also require bar applicants to pass the Multistate Professional Responsibility Examination (MPRE) developed by NCBE which is now transitioned to computer-based administration.

Standardization across jurisdictions coalesced in the Uniform Bar Exam (UBE), now adopted in 39 jurisdictions. Day 1 of the Uniform Bar Exam (UBE) consists of two Multistate Performance Test (MPT) questions which are case simulations, and six Multistate Essay Examination (MEE) questions. The second day consists of the MBE, multiple-choice questions.

All three of these tests are prepared by the NCBE, and the NCBE grades the MBE. However, it is important to note that each UBE jurisdiction can decide whether to accept the MBE scores, how to grade the case simulations and essays, what the passing (or “cut”) score for its jurisdiction should be, and whether to administer state-specific content, among other things. Before Illinois adopted the UBE, the Illinois Bar Exam consisted of the MEE, the MBE, one MPT, and 3 Illinois-specific essay questions.

Other than the MPRE, the other sections of the bar exam, whether UBE or not, are administered in person. Typically, exam-takers are assigned to a single seat for two days and are seated in close proximity to one another.

Social Distancing and the July 2020 Bar Exam

As governors responded to the deluge of COVID-19 cases by issuing executive orders that restricted large gatherings of people, 3Ls began to worry not only about final exams and graduation from law school, but also about whether, when, and where they would be able to take the July bar exam.

As we have written before, the NCBE offered to make the July bar exam materials available for alternative dates in September. State supreme courts made myriad decisions on administering the exam, including alternatives and back-up dates, and NCBE documented these decisions on its website. As of May 5, enough state supreme courts had committed to move forward with the July exam to make exam materials available in July as well.

Some larger jurisdictions that have announced a July administration date, like Florida and Arizona, have announced precautionary guidelines for exam-takers. These include that they must be physically in-state for 14 days prior to the exam, have a temperature of less than 100.4 degrees, maintain six feet of social distancing, and wear a mask or shield.

Many questioned, for example at Above the Law and Law.com, the wisdom of packing our future lawyers into a room for a two-day exam when research shows that those who have no symptoms may nonetheless carry and spread the virus.

Some 3Ls shopped among exam jurisdictions. Amanda Carey, an intern at the Commission who intends to practice law in Chicago, explained that she and her 3L colleagues shared concerns about whether social distancing measures would affect the timing of their bar examination and ultimate licensure.

Before she registered to take the bar exam, Amanda scoured the internet for information about which UBE jurisdiction was most likely to administer an in-person exam in July. She ultimately settled on Oregon, a state where she has family.

“Oregon was transparent early on,” she explained. “It acknowledged that the health of the exam-takers and proctors was a priority, but also that it was committed to administering the exam in July.”

Because Oregon only expected about 400 registrants for its bar exam, Amanda reasoned that spreading exam-takers out in venues would be more feasible than in Illinois, which expects over 2,000 registrants.

“It will cost me a lot more to go this route,” she explained. “But it is worth the $1,250 cost to transfer my score back from Oregon to gain a level of certainty as to when I will be able to be tested.”

Postponing or Canceling the Bar Exam

On May 1, the Illinois Supreme Court announced the postponement of the in-person July exam to September 9-10, 2020. The Court also issued an order giving the Illinois Board of Admissions to the Bar flexibility in administering the exam, as posted on its website.

I interviewed Nancy Vincent, Executive Director of the Illinois Board of Admissions to the Bar, earlier this month for our Reimagining Law video series. Nancy explained the rationale for this decision, including the large number of registrants and limited testing venues in Chicago. Illinois typically has about 2,000 registrants for the July exam spread across just three locations, two at the University of Illinois-Chicago and one at a local hotel.

Other options that were considered but not deemed appropriate or feasible by the Court were diploma privilege (as accepted in Wisconsin and on an emergency basis this year in Utah) and online test administration.

Several other state supreme courts also postponed the bar exam to early or late September administration dates, including California, New York, Pennsylvania, Maine, Massachusetts, and Rhode Island (the NCBE has mapped out plans across the U.S. by jurisdiction).

In addition, some state supreme courts are pushing for online testing or have adopted novel measures, either accompanying or superseding the rescheduling of the bar exam. For example:

  • The Utah Supreme Court canceled the July 2020 bar exam. The state is allowing emergency diploma privileges to graduates of its two law schools and certain other law grads who must practice for 360 hours under the supervision of an experienced, licensed attorney. (Wisconsin is the only other state to allow diploma privilege to its law school graduates and has for many years.)
  • The Indiana Supreme Court ordered its Board of Law Examiners to administer a one-day bar exam remotely on July 28, 2020. The exam will consist of the Indiana Essay Exam and questions on the MBE topics.
  • The Massachusetts Supreme Court announced that if the UBE cannot be safely administered from September 30-October 1 in its current form, a Massachusetts-only bar exam should be administered remotely.
  • The Supreme Court of California postponed the bar exam to September and ordered the state Bar to work with the NCBE to develop online administration. The California Bar Board is joining with the Supreme Court to review all aspects of the exam, including the cut score, the subjects covered, whether to adopt the UBE, and the method of administration.
  • In a move urged by the ABA Board of Governors, over a dozen states have expanded or adopted supervised or provisional licensing, allowing those who have graduated from law school but have not yet been formally admitted to practice law under the supervision of a licensed lawyer.
  • Both New York and Massachusetts have limited the number of people who may take the exams in their states and will give preference to those who attended law schools in their respective states. These moves have been decried, including by law school deans here and here.

What About Permanent Changes to the Bar Exam?

Understandably, state supreme courts and bar examining authorities are responding to a crisis with insufficient and sometimes contradictory data. Everyone hopes that the bar exams can be administered safely this year. And that emergency measures may only be in play for 2020. But shouldn’t we plan for the possibility that conditions will be similar for the bar exams scheduled in February 2021? July 2021?

The fire drills various states have had around the July bar exam point to the importance of a consistent and holistic approach to testing the minimum competence of future attorneys. The UBE seemed like a huge step forward and it may be counterproductive to retreat back to a patchwork of state-specific approaches.

As a self-regulating profession, we are obliged to make sure there is integrity in the licensing process for new attorneys. And we owe our future lawyers some certainty in the process.

But the bar exam is under scrutiny. It is important for the protection of the public and the integrity of the legal profession that we ensure that newly minted lawyers possess the required minimum competencies. Agreeing on what those are, across the nation, seems like a necessary first step.

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