If the COVID-19 accommodations are good enough, then let’s re-think the bar exam

My bar exam notes. Yeah, I kept the notebook all these years. No, I don’t recall the last time I opened it before today.

As with most every other scheduled activity involving lots of people, COVID-19 is wreaking havoc with the July bar exam, that semi-annual rite of passage in which hundreds of mostly new law graduates spend hours in communal confined spaces taking written tests they hope will show that they have the required knowledge and skills to be licensed as lawyers.

According to data collected by the National Conference of Bar Examiners (NCBE), about half of all U.S. states – including Arizona – will hold an in-person bar exam on July 28 and 29. Some jurisdictions will hold in-person exams in September and October, either instead of or in addition to the July dates. (The NCBE has an excellent chart here. I also previously wrote about Arizona’s decision to hold the July in-person exam here.)

In addition to or instead of the in-person exam, more than a dozen states and the District of Columbia are also opting for something entirely different as emergency COVID-19 accommodations:

• One option is very old: the diploma privilege, which means no exam at all. Utah, Oregon, and Washington have adopted this.

• The other option is new: an online bar exam, that for this year is abbreviated and scaled-down. Arizona has opted for this, in addition to offering the in-person exam. Other jurisdictions that will be administering an online exam: the District of Columbia, Florida, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Nevada, Oregon, and Texas.

The two options, although drastically different, will have the same result: For public health and safety reasons, some 2020 law grads and lawyers already licensed in other jurisdictions won’t have to jump through the same hoops most currently licensed lawyers had to jump through to become licensed in Arizona and more than a dozen other states.

 And that, to me, raises a question. If an online, abbreviated bar exam or the diploma privilege are good enough to show that the applicants have the required knowledge and skills to be licensed as lawyers, should we ever go back to holding a “normal” in-person bar exam?

The diploma privilege, or do we even need a bar exam?

The diploma privilege – admitting law-school graduates without a bar examination – developed in the late 1800s as a way to “entice” students to obtain a formal legal education. Daniel R. Hansen, Do We Need the Bar Examination -- A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives?, 45 Case W. Res. L. Rev. 1191, 1201 (1995) (available at https://scholarlycommons.law.case.edu/caselrev/vol45/iss4/32). Its popularity peaked between 1879 and 1929, the decline spurred when the ABA in 1921 decreed that “every candidate should be subject to an examination by public authority to determine his fitness.” Id.

  Until recently, Wisconsin was the only remaining jurisdiction that still used the diploma privilege, for graduates of its in-state law schools. Beverly I. Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wisconsin Law Review. 645 (2000) (available at https://scholarship.law.vanderbilt.edu/faculty-publications/722).

But as a COVID-19 accommodation, Oregon, Utah and Washington now have adopted limited diploma privileges. Oregon will admit 2020 graduates of in-state law schools and ABA-accredited law schools with first-time bar passage rates of at least 86 percent who had planned to take the July exam. Utah will admit graduates of law schools with an overall first-time passing rate of 86 percent or higher in 2019 who also perform 360 hours of legal work supervised by a qualified lawyer. And Washington will admit graduates of ABA-accredited law schools, including any attorney already admitted by exam in another jurisdiction, who had registered to take its July or September in-person exams. 

The online, abbreviated bar exam

Eleven jurisdictions have announced that they will hold online exams, either as an alternative to or instead of an in-person exam. Arizona, unlike most of that small group, is offering the online exam as well as an in-person exam.

  The bar exam – held twice a year – has always been administered in person. The NCBE’s president, in fact, says the NCBE “continues to strongly advocate that a full-length, standard, in-person administration … is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates, who may not have access to comparable testing conditions or equipment.” (Contrast this to aspiring medical doctors, who take most of their national licensing exams remotely at testing centers. Of four required examinations, three are computer-based tests administered at a vendor’s testing centers; the fourth is a hands-on clinical skills assessment conducted – in person -- at specialized test centers.)

In addition to the online exams being administered differently, they will be significantly shorter than the in-person exams.

Of the 11 jurisdictions offering an online exam, five – Arizona, Oregon, the District of Columbia, Maryland, and Massachusetts – will use an abbreviated exam the NCBE will prepare for remote administration on October 5 and 6.

  The abbreviated online exam, even though produced by the NCBE, won’t be what is called the Uniform Bar Examination (UBE), which the NCBE produces for about two-thirds of U.S. states and the District of Columbia. The UBE results in a score that an applicant can transfer to any other licensing jurisdiction that uses the UBE. (Arizona has used the UBE since 2012.) Because the abbreviated online exam won’t be a UBE, applicants will not be able to transfer the score to other UBE jurisdictions.

  It’s not a UBE exam because  it literally will be only half of what constitutes the current UBE. As the NCBE says on its website, the online exam will cover “less content … in shorter testing sessions.”

The current two-day, 12-hour UBE consists of a six-hour, 200-question multiple-choice component; six 30-minute essay questions; and two 90-minute skills-based tasks.

The abbreviated online exam will be two days but only six hours and consist of half of the UBE: 100 multiple-choice questions, three essay questions, and one skills-based task.

  In its announcement, the Supreme Court made it clear that the exam as administered in Arizona will only be valid for practicing in Arizona. The Supreme Court’s admissions unit posted an additional warning that it is unclear whether other jurisdictions even will honor the results of the abbreviated online exam if the applicant later wants to apply for admission on motion in another jurisdiction.

So, in Arizona, this two-option bar exam means that one applicant can take the in-person bar exam — 12 hours of testing, with hundreds of other people — and another applicant can take the online exam — six hours of testing, at his or her own computer, alone — and both theoretically end up in the same place: fully licensed as an Arizona lawyer.

  While Arizona, Oregon, the District of Columbia, Maryland, and Massachusetts will use the NCBE’s abbreviated online exam, Texas, which is scheduled to start using the UBE for its February 2021 examination, will use a combination of UBE and homegrown questions for its online exam.

  The five other states that will offer online bar exams this year – Florida, Indiana, Louisiana, Michigan, and Nevada – don’t use the UBE, so portability isn’t an issue, and will create their own online exams. But all will be different from and shorter than the in-person exams. Nevada even is allowing its online exam to be open book.

So what’s a good enough benchmark to show that law grads

have sufficient skills and knowledge to be lawyers?

Licensing is the first step in protecting the public. The bar exam is generally deemed to be necessary to establish an applicant’s knowledge and skill set for a license.

The law grads and others who take the online, abbreviated exams as well as the law grads and others who will be eligible for the diploma privilege will be licensed (assuming they pass through character and fitness) and will be indistinguishable from a jurisdiction’s already-licensed lawyers. They won’t have little asterisks after their names in bar directories documenting that they didn’t have to pass the same bar exam.

The decisionmakers, including our own Arizona court, have deemed these COVID-19 accommodations good enough.

If six hours of testing is enough this year, do we need to return to 12 hours of testing in the future? If online testing works, do we need to return to mass, in-person testing? If an emergency diploma privilege works for some states, should we consider the diploma privilege as a viable option?

Following the maxim that one shouldn’t make permanent decisions to solve temporary problems – and hopefully the COVID-19 situation is temporary – I’m not suggesting that we make the emergency accommodations permanent. But we should use this situation as an impetus to re-think how we assess whether law grads and existing lawyers who want to join us in Arizona have sufficient knowledge and skills to be licensed as lawyers in this jurisdiction.