Jurisdictions around the country are struggling to offer the bar exam during the Covid-19 pandemic. The difficulties are particularly acute in New York, which hosts about 10,000 bar takers each July, has been hit hard by the pandemic, and faces an increasingly desperate need for legal services throughout the state.
This is an emergency unlike any we have experienced, one that requires novel, creative, and practical solutions.
The New York Court of Appeals moved quickly to acknowledge the public health realities, postponing the July exam until September and announcing plans for a distinguished working group to explore contingency plans if that exam, too, needs to be canceled or postponed.
But the court has issued a plan for the September exam that is misguided: the plan confirms that there will be insufficient seats for all candidates wishing to take the exam; prioritizes graduates of New York law schools for claiming seats; and encourages graduates to take the exam in other states.
Court Should Facilitate, Not Obstruct New Attorneys
The announcement makes clear that New York needs to find another means for licensing new lawyers. The court should be facilitating, not obstructing, entry to the profession at a time when clients desperately need legal help and new lawyers are eager and ready to work.
Other writers will probe in more detail the serious constitutional issues raised by New York’s protectionist-sounding plan. In our opinion the plan cannot be justified as a public health measure, attempting to limit transmission of the virus through travel. Indeed, it does the opposite: it encourages travel to other jurisdictions.
And it does not prevent travel to New York for the exam: some test-takers from out-of-state schools have already traveled to New York and many New York law school graduates will have to travel back from their home states, where they have gone to study and wait.
Four Proposed Requirements
We write here to propose what New York should do, as a practical, policy, and constitutional matter, in order to maintain entry to the profession.
New York should adopt an emergency path to licensure, available to any JD or LLM graduate of an ABA-accredited law school who has not previously failed a bar exam in any U.S. jurisdiction. Those candidates could be licensed after satisfying four requirements that, taken together, would ensure entry level competency in New York law and practice:
- Satisfactory completion of the New York Law Course and New York Law Exam. Both the course and the exam are already available online.
- Satisfactory completion of the Multistate Professional Responsibility Exam (MPRE), which requires a scaled score of 85 or above in New York. That exam is also available online.
- Completion of an enhanced New York “Bridge the Gap” continuing legal education program. New York currently requires new lawyers to complete 32 hours of such programming during their first two years of practice. To ensure sufficient knowledge of New York law for entry-level practice, the court can prescribe and expand the content, require more hours, embed assessments within the courses, and require completion of all courses before licensure. New attorneys could even complete intensive courses this summer during the time they set aside to study for and take the canceled July exam. Fees saved from administering an in-person bar exam—especially an exam meeting social distancing rules—would cover the costs of creating the new content.
- Satisfactory completion of a designated number of hours of supervised practice under a licensed New York attorney. To support licensure, that supervisor would file an affidavit with the Court of Appeals, briefly describing the type of work performed and certifying that the work was performed consistent with the New York Rules for Professional Conduct—including Rule 1.1, which requires competent representation (“legal knowledge, skill, thoroughness and preparation reasonably necessary for representation”).
The first three requirements would assure the candidate has the requisite knowledge of New York law, the Rules of Professional Conduct, and the key subjects covered in Bridge the Gap courses. The final requirement would constitute a true “performance test” for candidates, assuring they have the skill to apply the law.
The Court of Appeals already plans to expand the state’s supervised practice orders to permit more extensive practice before licensing. Why not use that supervised practice to certify competence?
New York employers and clients do not need lawyers who will serve them for several months, then interrupt that service to study for a paper exam that tests general principles rather than the New York law they will already be applying.
Nor should New York clients suffer a vastly reduced class of new lawyers, comprised of only the limited number of applicants that New York can seat for an in-person exam. New York clients will fare best with lawyers who have completed the study of general principles of law already covered at any ABA-accredited school; proven their knowledge of the Rules of Professional Conduct; passed New York’s existing Law Course and Exam, as well as expanded Bridge-the-Gap courses; and proven their ability to serve New York clients competently and ethically through supervised practice.
The technology and capacity exist to implement these measures. We are in an unprecedented pandemic. The time to act is now.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Claudia Angelos, Clinical Professor of Law, New York University School of Law.
Eileen Kaufman, Professor Emerita, Touro College, Jacob D. Fuchsberg Law Center.
Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, Moritz College of Law, The Ohio State University.
Patricia E. Salkin, Provost of the Graduate and Professional Divisions, Touro College; Professor of Law, Touro College, Jacob D. Fuchsberg Law Center.
All four authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 11 scholars who have studied and written about the bar exam, licensing, and legal education for many years