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Florida Reports Lower First-Time Bar Pass Rate in Chaotic Year

Nov. 24, 2020, 9:30 PM

Bar exam pass rates in Florida for first-time test takers declined for the October sitting compared to July 2019 as the test moved online, but the state’s data alone paints an incomplete picture of broader exam results in a year of coronavirus-related upheaval.

Florida reported a 71.7% pass rate for first-time test takers in October, when the test was given online, a decline from July 2019 when 73.9% passed the in-person test. The Florida Board of Bar Examiners says it only tracks the pass rate for first-time exam takers.

Florida’s exam was delayed several times in 2020, including once due to technical glitches during the online transition. The online test was also administered over one day, instead of two, and had some differences in content from the 2019 in-person version.

This year has been anything but normal for states looking to test and license new attorneys across the country. And as more states report their pass rates, debate is likely to continue over the effectiveness of pandemic-era testing.

More than 68,000 people took the bar exam nationwide last year, according to National Conference of Bar Examiners’ figures, while this year the total was only 57,000.

Many state bar exams in 2020 were fraught with pandemic-related delays. Rather than holding exams in person, a number, like Florida, decided to migrate to remote tests, and still others allowed recent law graduates to begin practicing without taking the bar, if they met other requirements.

Despite the health risks, there were states that offered in-person exams in July, which has been the traditional point for most law school graduates to take the qualifying exam.

This year, timing of test taking was more spread out as some 18 states and the District of Columbia offered online bar exams for the first time in October.

Judith Gunderson, NCBE’s chief executive and president, said in a statement, “Overall the remote exam was a success.”

Variety and Confusion

Given the varying sittings for the 2020 exams, jurisdictions reporting their results had varying passage rates. North Dakota, for instance, reached a 76% rate for those who took the bar in July, over 73% a year earlier. In Indiana, the August exam yielded an overall pass rate of 78%, an improvement from the July 2019 test, which 65% of test takers passed.

Like Florida, New York ran into obstacles with its testing scheme. More than two-thirds of test takers in the state, which is popular for future attorneys, reported that they ran into technological problems such as Internet or software issues during the test. The official results of the exam, as well as results from another major state for attorney licensing, California, have yet to be reported to NCBE.

Test takers lodged their complaints in a survey taken by two New York legislators who have introduced a bill to allow law graduates to skip the exam and work as licensed practitioners during the pandemic. While the pandemic is in effect, the lawmakers want law graduates to be able to practice without taking the bar.

Such diploma privilege or provisional licensing has been considered in several states which have had longstanding concerns over the exam’s effectiveness and fairness in measuring legal competence. A few jurisdictions like Oregon, Washington State, Utah, and Louisiana have approved some form of this emergency privilege, at least temporarily.

Access Lex, a nonprofit for legal issues, is among the critics who argue that the bar exam is outdated and should be an open book test to reflect how lawyers actually work on cases for clients.

“The bar exam disproportionately excludes people of color from the legal profession,” wrote the group’s director Aaron Taylor in a recent open letter to law school deans.

The NCBE created a testing task force that has undertaken a three-year study to make sure the bar exam “continues to test the knowledge, skills and abilities required for competent entry-level legal practice in a changing profession.” Its report is due at the end of 2020.

The Institute for the Advancement of the American Legal System, an independent research center at the University of Denver, just completed a two-year study with 50 focus groups in 12 states to examine what actual factors should be included to meet the “minimum competence needed to practice law.”

The study, “Building a Better: Capturing Minimum Competence” will be released in upcoming weeks, and concludes a written exam is one of the items needed to assess the legal competence necessary to practice law.

To contact the reporter on this story: Elizabeth Olson in Washington at egolson1@gmail.com

To contact the editor on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com
Chris Opfer in New York at copfer@bloomberglaw.com

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