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COVID-19 and the Law: #1

A Look Back at the First Remote Bar Exam

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As any lawyer will attest to, the bar exam is a major component in the transition from law school to becoming a lawyer. Bar exams across the country have faced a number of setbacks this year, including, decisions by state bar examiners to postpone in-person exams; logistics surrounding the administration of online exam platforms; and calls from law students and professors to enact emergency diploma privileges, thereby allowing graduates to practice law under the supervision of licensed attorneys and bypassing the bar exam.

While some may think that it’s time to retire the bar exam entirely, a recent survey by the National Conference of Bar Examiners found that an overwhelming 79% of Americans believe that attorneys should be required to pass a comprehensive licensing exam before they officially practice law.

The bar exam instills confidence in the minds of both the public and practicing attorneys that law school graduates are fit to practice. As such, understanding the current licensing procedures is imperative, especially if your firm engages in the process of hiring new associates. The first round of remote bar exams took place in early October 2020 and the new format solicited mixed reactions from test takers.

The following are 4 factors that came into play due to the various changes and format of this year’s exam.

Reciprocity Agreements

Like most professions that require a license to practice, the state where an attorney chooses to take his/her bar exam is likely to tie an individual to that state thereafter. However, along with the new remote bar exam, is an expanded list of states that are extending reciprocity to one another.

For example, New York has recently entered into reciprocity agreements with Connecticut, the District of Columbia, Maryland, Massachusetts, New Hampshire, New Jersey, Ohio, Tennessee and Vermont. Similarly, Texas has approved a proposal to accept a score of 270 or higher on October 2020 remote bar exams administered by the District of Columbia, Connecticut, Illinois, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Oregon, Tennessee and Vermont. These new agreements are in addition to the states that were already using the Uniform Bar Exam prior to July 2020.

Format Adjustments

While the basic format of the Uniform Bar Exam (“UBE”), the most common exam offered around the country, has not been altered significantly in transitioning from the traditional in-person exam to the remote bar exam, each section has undergone many changes.

Both the pre-pandemic, in-person bar exam and the current remote bar exam are made up of the Multistate Performance Test (“MPT”), Multistate Bar Examination (“MBE”) and the Multistate Essay Examination (“MEE”). However, the number of questions in each section has been greatly reduced for the most recent iteration of the test.

Prior to the pandemic and the advent of the remote bar exam, the UBE was a two-day exam comprised of a six-hour exam on each day. Originally, the MBE was made up of 200 multiple choice questions. Conversely, the remote bar exam offered in October 2020, included an MBE of only 50 multiple choice questions. Similarly, the UBE usually consists of a MPT of two ninety-minute tasks covering factual analysis, legal analysis and reasoning; the remote bar exam included only one ninety-minute skill assessment. In the original UBE, the MEE section was a three-hour, six question essay exam, while the remote bar exam MEE section was made up of only one 90-minute session consisting of three essays.

Tech Problems

It’s no surprise that the online administration of the October 2020 bar exam presented a host of technological issues. Bloomberg recently published statistics from a survey conducted by New York State lawmakers which revealed that 40% of law school graduates who took the remote bar exam in New York encountered technology problems. ExamSoft was selected as the major provider of the online exam platform for 18 jurisdictions and reported a tidal wave of tech support calls during the two days the exam was administered and in the days leading up to the exam.

According to ExamSoft, the company fielded around 1,500 calls from test-takers on the first day of the exam; for perspective, around 30,000 people across the country were registered for the October bar exam. Many test-takers dispute this number and reported to have attempted to call ExamSoft multiple times during the exam, only to be placed on a seemingly endless hold. This in turn decreased their allotted timeframe to complete the test, forcing many to hang up with their issues unresolved. Hang-up calls were not accounted for in the reported number of tech support calls received by ExamSoft.

Problems were also encountered with ExamSoft’s facial recognition tool, used to unlock each section of the exam. In theory, facial recognition would assist in reducing cheating on an exam administered remotely. In practice, however, the tool was riddled with issues—many examinees complained that the tool was not sensitive to different skin tones and left many students locked out of the exam. Student also were required to allow the platform access to their computer’s camera and position themselves within a certain range of the camera for the entirety of each session. Many scenarios were recounted where those sitting for the exam were forced to forego bathroom breaks or risk forfeiture of the test.

Diploma Privilege Jurisdictions

Although the majority of states have opted to keep the mandatory bar exam, some states have adopted an emergency diploma privilege program for the current exam cycle. The American Bar Association recommendations state that the program should apply to “(1) 2019 and 2020 law graduates, and (2) graduates of prior years who have been since graduation serving as judicial law clerks, who have not yet taken a bar examination, and who apply for admission to the bar, to engage in the limited practice of law, if the July 2020 bar examination in their jurisdiction is canceled or postponed due to public health and safety concerns arising from the coronavirus pandemic.” It is important to recognize that these parameters set forth by the ABA are simply recommendations and final decisions on licensing rests at the state level.

Additional guidelines from the ABA include requiring that applicants were graduates of an accredited law school and met eligibility requirements for the July 2020 test. The bar exam must be passed by the conclusion of 2021 and failure of the exam would negate the use of the emergency diploma privilege.

Utah, Washington state, Oregon and Louisiana have adopted the emergency diploma privilege program. Similarly, Washington D.C. now allows recent law school graduates, who have chosen to not take the bar exam, to be automatically licensed after three years if practicing under the supervision of an experienced attorney.

Categories: COVID-19 and the Law

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