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States Pressured to Waive Bar Exam for New Lawyers in Pandemic

June 30, 2020, 1:28 PM

Johnny Carver is in a tough spot. He has to decide whether to sit for the Florida bar exam in person next month so that he can start earning a living, or sit it out to avoid possible exposure to coronavirus and the higher risk it poses for him due to an autoimmune condition.

“I want to be an attorney so badly. I’ll do what it takes to achieve that goal,” the recent University of Miami School of Law graduate said in an interview about the higher stakes right now of tackling the bar in a room full of test-takers. “But it’s a dangerous venture for people like me.”

Carver isn’t alone in Florida—which has seen a dramatic spike in new coronavirus cases—and other states where pressure is building to allow law school graduates to skip the bar exam and begin practicing. The spread of Covid-19 across the country has lawyers-in-training and some school administrators calling for states to implement an “emergency diploma privilege,” waiving the multi-day test attorneys are generally required to pass before joining the bar.

Utah, Washington, and most recently Oregon joined Wisconsin in allowing in-state graduates to bypass the bar exams, while Minnesota is actively considering the option.

Now, diploma privilege campaigns also have sprung to life over the past several weeks in Florida as well as Georgia, Texas, New York, Oregon, and elsewhere.

A group called United for Diploma Privilege, made up primarily of recent law school graduates that initially aimed its efforts at California, has been leading the charge. The effort got a boost on Monday when law school deans in the Golden State reversed course and endorsed the diploma privilege option over the state’s tentative plans to offer an online exam in September.

“We support diploma privilege for all graduates of ABA-accredited law schools…This would be permanent admission to the bar without ever needing to take the bar exam,” wrote Berkeley Law School Dean Edwin Chemerinsky in an email to 2020 Berkeley Law grads, obtained by Bloomberg Law.

“That said, I remain doubtful that the California Supreme Court will grant this,” Chemerinsky added. “But we will do our best to argue for this!”

State supreme courts and bar licensing groups have been monitoring Covid-19 developments while drawing plans that try to balance public health concerns with traditional arguments in favor of bar exams—to make sure new attorneys are competent and ethically grounded.

‘Unacceptable Risks’

The push comes as states are still scrambling to decide how they’ll conduct the next round of bar exams.

Several have delayed the in-person exams from July 28-29 until September or October. A few others, including Nevada, Maryland, Indiana, the District of Columbia and others have moved their tests online.

Other states like New York, Pennsylvania, Georgia, and Arizona are allowing certain law school graduates a compromise solution called provisional licensing. The option typically allows grads to perform some legal work, on condition that attorneys eventually take and pass the bar, be supervised for a period by veteran attorneys, and meet other requirements.

Unlike provisional licensing, diploma privilege typically does not demand that law school grads ever take the bar—one of several reasons some states have resisted the idea.

Critics say bar exams have worked to uphold ethics and knowledge standards, key to ensuring that new classes of licensed attorneys are fully prepared to practice.

A New York task force, for example, in late March rejected the idea of a diploma privilege, stating that “the absence of an examination would create unacceptable risks that persons lacking minimum competence to practice law would gain admission in New York.”

Wisconsin for years has had a full diploma privilege system in place for graduates of that state’s two law schools. Few other states in the U.S. had moved in this direction—until the coronavirus struck.

In mid-April, Utah became the first jurisdiction to allow an emergency diploma privilege to law graduates who met certain requirements, including working under the supervision of a licensed attorney for more than 350 hours.

Most recently, on June 29, the Supreme Court in Oregon granted “a one-time ‘diploma privilege’ to persons who timely submitted complete applications for the state’s July test and who either graduated in 2020 from one of the three Oregon law schools” or from other law schools that meet certain conditions, according to court spokesman Todd Sprague. For those who need to take the bar this year instead, Orgeon has lowered its passing score, and is now also offering an online test in October, according to Sprague. A formal order will issued soon, he said.

The Oregon court approved the one-time diploma privilege on a 4-3 vote, Sprague noted, while the other decisions were unanimous.

Florida Urgency

The campaign has taken on unique urgency in Florida, in part because of the recent and devastating impacts the disease has had in the state. Florida reported more than 146,341 total positive cases as of Monday with more than 3,400 deaths.

The Florida Board of Bar Examiners has not changed its stance since announcing May 5 that the exam would proceed as planned in late July.The group said at the time it would expand its Tampa exam location to a second site in Orlando, and that various social distancing precautions would be enforced.

An online petition to the Florida Board of Bar Examiners is asking the agency to consider either a move to an online exam, or to a diploma privilege. The petition had gained more than 1,350 e-signatures as of late-afternoon on June 29.

Several state legislators have spoken out against Florida’s testing scheme—as has Hogan Lovells appellate and U.S. Supreme Court practice partner Sean Marotta, who tweeted on June 23 that he’s in favor of diploma privilege.

“Get a better plan or just call it until there’s a vaccine,” he said in the tweet.

Mike Rutledge, who gradated from the University of Miami School of Law last month, is signed up to take the Florida bar exam on July 28-29—but said concerns have been growing in recent days about what to do.

Rutledge, 40, said his wife’s parents live just a block away and he doesn’t want to unwittingly get them ill if he were to contract the virus while taking the exam.

He said he would like to just skip the exam and wait until next year, but the law firm that has offered him a job bumps the pay of its new lawyers as soon as they take the bar.

“It’s a tough position to be put in,” said Rutledge. “I really, really hope they cancel this (July) exam, even though it would cost me a lot of money.”

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

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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