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ABA Urges States To Cancel Risky In-Person Bar Exams (1)

Aug. 4, 2020, 6:16 PMUpdated: Aug. 4, 2020, 8:30 PM

The American Bar Association is asking states to scrap in-person bar exams until public health authorities can confirm it’s safe to hold them.

The ABA’s House of Delegates—the group’s main governing body—agreed Tuesday on a resolution calling for bar exams to be moved online or for graduates to be offered licenses to practice without taking the test, as result of the Covid-19 pandemic. The resolution, passed in a 256 to 146 vote, isn’t binding, but may help guide the more than dozen states that are still set to hold in-person exams later this year.

“No one should have to choose between their long-term health—or life—and a licensing examination,” the ABA said in the 13-page resolution. “However, bar applicants in jurisdictions scheduled to administer an in-person bar examination are being required to do so. And given the state of the legal employment market combined with the need to repay student loans and otherwise earn a living, many bar applicants feel they truly have no choice at all.”

Twenty-three states conducted in-person bar exams the last week of July—even as Covid-19 infections were rising across the country—and 13 more are planning to hold in-person exams in September or October, including Texas, Virginia, and Minnesota.

Reports already have come out involving July exam takers, including one in Colorado, who tested positive for the disease soon after finishing the test.

Four states so far have opted for diploma privilege as a response to Covid-19, including Utah, Louisiana, Oregon, and Washington State, which allows for law school grads to be licensed without ever having to take and pass a bar exam. Many other states have instituted different types of provisional licensing, a kind of of compromise solution that stipulates that grads can be licensed under condition that they eventually pass the bar.

Postponement Averted

Proponents of the ABA resolution successfully overcame a failed last-minute motion to “indefinitely” postpone the vote, pushed by the National Conference of Bar Examiners.

The motion to postpone failed by a vote of 133-294.

Hulett “Bucky” Askew, a former consultant on legal education for the ABA, argued on behalf of the postponement motion that delegates received the resolution late on Sunday—without enough time to weigh its ramifications. He added that even the mention of diploma privilege as a possible option for states wouldn’t be fair to the ABA, which he said has had a “long-standing policy” in favor of the bar exam.

The proposal to end in-person exams did not endorse one particular alternative, but rather noted some of the possible benefits of holding tests online, as more than 20 states are set to do, as well as alternatives like diploma privilege and provisional licensing. Several of the nation’s biggest states will be holding online exams, including New York, California, Illinois, and Ohio.

The law professor who introduced the measure—Patricia Salkin, the provost of the graduate and professional divisions of Touro College—said that canceling in-person exams would have the same effect as taking another basic public health precaution.

“This resolution is akin to wearing a face mask,” Salkin said.

The ABA resolution was submitted to the delegates by the Virgin Islands Bar Association, which was joined by the ABA’s law student division, its young lawyers division, and three ABA sections.

Though it urged the states to act, the resolution—like the many model ethics rules the ABA provides to the states—does not mandate that any state change its rules. Those decisions most often are made by state-level supreme courts or bar licensing authorities.

The resolution “embraces the fact that there is no cookie-cutter or one-size-fits-all answer to what our jurisdictions should do if it is not safe to administer an in-person bar exam,” said Anthony Ciolli, one of the Virgin Islands’ ABA delegates, during the debate.

Regardless of how states adapt, he said it’s vital that they move quickly, as “we cannot simply stop licensing new attorneys for potentially a year or more while we wait for a vaccine.”

Dealing with the multiple pressures of in-person tests—including health, financial, and emotional stresses—was a recurring theme during the debate.

Conisha Hackett, a May graduate of the University of Mississippi School of Law, said her mom’s backing helped persuade her to “go against all reason” and take the July exam.

“I considered my family and what would happen if I contracted the virus and carried it home to them. I knew I would never forgive myself,” said Hackett, 27.

“Tinkering on the fence,” she said, “after having studied for nearly two months, my mom encouraged me to take it. She said that I had worked too hard and sacrificed too much not to. What I heard was the need in her voice. The need for me to be able to provide for myself. “

(This story has been revised throughout to add additional detail.)

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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