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California Will Not Waive Online Bar Exam, High Court Says (1)

Sept. 23, 2020, 10:10 PMUpdated: Sept. 23, 2020, 11:46 PM

Law school graduates looking to practice in California will not be able to completely skip the bar exam, the state’s highest court said.

The California Supreme Court on Wednesday shot down a request to grant “diploma privilege,” which would allow grads to work as attorneys immediately without passing the biannual bar exam. The court has, however, already directed the state bar to establish a provisional licensing program for 2020 law school graduates, which would allow them a limited right to practice law under the supervision of a licensed attorney.

California is set to hold an online version of the test Oct. 5-6. The exam was previously delayed from July and moved online in response to health concerns stemming from the coronavirus pandemic, though there have been concerns voiced over how fair and effective an online test would be.

Leaders of the group United for Diploma Privilege filed an emergency petition Sept. 9 to the California Supreme Court, urging justices to waive the state’s bar exam requirement.

Pilar Escontrias and Donna Saadati-Soto, two of the group’s leaders expressed their disappointment with the ruling in a statement.

“The Court had a meaningful opportunity to address the inequities that have resulted from COVID-19, California wildfires, and the inability of ExamSoft to unequivocally demonstrate reliability of its software,” they said. “As we have consistently articulated since March, the burden of suffering will fall on BIPOC applicants, applicants with disabilities, applicants from low-income backgrounds, and applicants with children.”

They urged the court to take up “other possibilities for relief” including an open book bar exam and provisional licensure for all.

“What this appears to mean is that our concerns and issues, that we’ve reported, are being largely ignored by the court,” said Vincent Bezares, another diploma privilege activist, in a message to Bloomberg Law following Wednesday’s decision.

“The lack of response is in keeping with the other state supreme courts throughout the nation,” he added.

Changing Standards

University of California Berkeley Law Dean Erwin Chemerinsky was one of the law school leaders in the state who recently requested that California make its online exam open book.

“I am not surprised that the California Supreme Court rejected the request for diploma privilege in that they did so earlier in the summer. It means that there will be a test on October 5-6. I hope that they will decide to have an open-book exam without remote proctoring,” said Chemerinsky in an email to Bloomberg Law.

According to a statement from Donna Hershkowitz, interim executive director of the State Bar of California, bar exams are the best way to ensure the twin missions of the bar are upheld, to protect the public and ensure the integrity of the legal profession.

When evaluating candidates for entry into the profession, “the bar exam is the best standard we have,” Hershkowitz said.

California has also mulled changing its “cut” score for bar passage. The state assembly last month adopted a resolution urging the court to retroactively lower the score, so those who would pass under the 1390 score up to five years ago could be admitted to practice.

In a Wednesday interview, Assemblymember Mark Stone (D), Assembly Judiciary Committee chairman, said state lawmakers have tried to nudge the bar to become more diverse, accept lower cut scores to get more lawyers into the profession, and increase access to justice.

He said lawmakers have been asking the state Supreme Court to take “a serious look at allowing people to practice law based on them getting a diploma” plus oversight of their legal work.

“This is a huge diversity question because the legal profession does not look like the rest of California. And all of these provisions are designed to increase the diversity on the bench and in the bar,” Stone said.

(New information added throughout based on the comments of a California lawmaker, a California state bar official, and leaders from United for Diploma Privilege. Additional context added about a recent resolution involving the bar exam's "cut" score.)

To contact the reporters on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com; Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com

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