Virus Vexes Bar Exam, Leaving Young Future Lawyers in Limbo

By JULIE CARR SMYTH Associated Press
COLUMBUS, Ohio (AP) — One of Emily Hughes’ first memories after entering law school at the University of Cincinnati in 2017 is an assistant dean scrawling “July 28-29, 2020” across a chalkboard.

“Does anyone know what these dates are?” he asked. One student hummed the graduation march. But, no. It was the date of the bar exam.

The educator advised students not to get married, have a baby or host a party during the three-month study period leading up to the test, said Hughes, 25.

“We have been planning around it for three years,” she said. “They tell us horror stories just to let us know how stressful and important this test is. And now it’s all very uncertain.”

Amid the COVID-19 pandemic, the organization that develops the exam — the National Conference of Bar Examiners — has raised the possibility that the July test may not be offered because it requires hundreds of students and monitors to gather in a single location, potentially spreading the virus. But the conference doesn’t plan to decide until May 5, leaving some 46,000 law students in limbo.

Some have pushed for a decision sooner.

“It’s offered only twice a year, in a huge convention hall, so it creates a perfect storm for what the virus is able to do,” said Ohio State University law professor Deborah Jones Merritt. “We most certainly won’t be able to administer the exam in every state in July.”

Jones Merritt was one of 11 academics who pleaded last month to the test’s administrators to choose an alternative quickly.

Largely at issue is the pipeline of young lawyers who tend to serve disadvantaged populations — including poor people and some immigrants — and carry some of the heaviest student debt.

“There’s also the other side of that pipeline, which is the 20% or so of law students who come from disadvantaged backgrounds who are struggling much more to deal with this financial disaster,” Jones Merritt said. “So if we want to continue holding ourselves out as a profession that’s open to all people, not just the upper middle class, we need to make sure that this ladder is there.”

Kaylee Price, 24, served alongside Hughes as an officer in the University of Cincinnati student bar association. She’s a first-generation college student raised by a single mother — and is $120,000 in debt. Uncertainty around the July bar exam has put her job as a law clerk in peril.

“The biggest concern for me, honestly, is not really knowing where my income is going to be coming from if I can’t take the bar,” she said. “A lot of us feel we can’t expect our employers to uphold those contracts if the bar exam is postponed.”

The bar examiners’ conference develops the bar exam and makes it available to state courts and others, which administer it, said spokeswoman Valerie Hickman. Each administrator will make its own decision about July, and the test won’t be released at that time it there’s not enough interest. Meanwhile, the conference has made available two added administrations of the test Sept. 9-10 and Sept. 30-Oct. 1.

“The goal is that by May 5 we will all know more and be able to make more informed decisions,” Hickman said in an email. “At the same time, an early May decision should still give third-year law students who are finishing up the semester time to make plans for either a July or a fall administration of the exam.”

As of this week, only seven states had made their decisions about July. New York, Massachusetts, Connecticut, New Jersey and Hawaii have postponed their exams until fall. Vermont has postponed theirs to an unspecified future date. Tennessee is going forward on the July dates.

The Ohio Supreme Court administers its state’s exam, and the decision is fraught with difficulties, court spokesman Ed Miller said. A lot of places are off limits now, and giving the test anywhere other than Columbus would mean “a long haul” for students coming from distant corners of the state, he said.

Offering the test remotely is also rife with challenges, Jones Merritt said. Technology can fail. Home environments can be crowded with distractions. Proctoring, or supervising, an online test requires extra vigilance and more people.

Other alternatives could include breaking test takers into small groups or placing law school graduates — just this once — into “supervised practice” with a veteran attorney.

Another popular idea is allowing this year’s class to practice with just a law degree and no bar certification. Wisconsin operates under such a “diplomaed privilege” system, meaning lawyers there aren’t required to take the bar exam, Jones Merritt said.

“People are very wedded to the idea of the bar exam. Nationally, we have this fixation on multiple choice tests,” she said. “We’ve just cultivated that mindset for many decades now, so it’s hard for people to imagine even putting it aside. But we’ve seen no complaints that lawyers in Wisconsin are committing malpractice at rates higher than other states.”

The American Bar Association Board of Governors on Tuesday urged jurisdictions to authorize some recent graduates to practice law in a limited way if the July test is postponed or canceled.

Hughes favors the diplomaed privilege option over any delay of the bar exam.

By the fall, she said, the dense material she has learned in law school will no longer be fresh. And a delay to the next scheduled date, in February, will interfere with the wedding she has already put off for a year because of the test.

She opted not to work during her final year of school so she could concentrate on her classes and on being president of the student bar association.

“I don’t know when I’ll get to take the bar, when I’ll get to pass the bar, if anyone will hire me,” she said. “It’s scary.”

Pictured: This photo provided by Jennifer C Hughes shows Emily Hughes as she poses for a photo in her home office in Xenia, Ohio on April 5, 2020. Hughes, in her final year of Law School at the University of Cincinnati, is studying to pass the bar exam. However, amid the COVID-19 pandemic, the organization that develops the exam — the National Conference of Bar Examiners — has raised the possibility that the July test may not be offered. But it doesn’t plan to decide until May 5, leaving some 46,000 law students in limbo. (Jennifer C Hughes via AP)

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