Even In Time Of Crisis, Hold Fast To Bar Exam

New Jersey Law Journal editorial, Even in Time of Crisis, Hold Fast to Bar Exam:

We do not think the current crisis is the appropriate time to “reinvent” the primary gate-keeping function for entry into the profession.

Each day during this global catastrophe, another anchor by which we secure our cultural, social or civic institutions comes loose, and we must decide whether to attempt either to reattach it or else reinvent it. New Jersey, New York and several other states have cancelled their July 2020 administrations of the bar exam due to the coronavirus epidemic, possibly to be rescheduled for September, if conditions permit.

Our Supreme Court recognized that, “without a means to pass the bar and obtain a law license, qualified law school students who expect to graduate this Spring may lose job offers, be unable to find legal work, and otherwise suffer financial hardship.” This previously unimaginable situation prompted law students and legal academics to suggest a radical alternative: waive the requirement of passing the bar exam for 2020 applicants and enact an “emergency diploma privilege” that would grant an immediate license to practice. ...

In The Bar Exam and the COVID-19 Pandemic: The Need For Immediate Action, 11 legal academics make the argument for implementing an immediate diploma privilege. ... Respectfully, while we share the authors’ concern for the disruption caused by the coronavirus pandemic, both to the public seeking legal services and to 2020 law school graduates, we do not think the current crisis is the appropriate time to “reinvent” the primary gate-keeping function for entry into the profession. While, as with any metric of human endeavor, we can certainly debate particular flaws in the current bar exam system, its basic function to establish at least a presumption that someone is competent to practice law—in whom clients may entrust the most essential aspects of their lives and affairs—remains an essential prerequisite. The moment of ineluctable accountability and responsibility to perform beyond what is convenient and learn beyond what is easy, is one that must be experienced by every person who is permitted to practice.

Our Supreme Court wisely chose a less drastic alternative, but one that demonstrates appropriate flexibility in these times of dire need. The court expanded slightly on existing Rule 1:21-3, and will permit 2020 law school graduates who have not already sat for the bar exam to practice temporarily, i.e. until they are able to sit for the bar exam, but only under the supervision of a licensed attorney who has been licensed to practice for at least three years. ...

What the rules do not and should not do, however, is give a law school graduate automatic and indefinite freedom to practice law without supervision, as would a plenary license issued after passing the bar and certification by the Committee on Character. ... The freedom to practice law without supervision must be sparingly granted only to those who have presented affirmative evidence that it is justified. This is one anchor that should be retained.

TaxProf Blog coverage of the July 2020 bar exam:

• The Bar Exam And The COVID-19 Pandemic: The Need For Immediate Action (Mar. 14, 2020)
• NCBE To Decide By May 5 Whether It Will Provide MBE For July Bar Examinations (Mar. 27, 2020)
• New York Postpones July Bar Exam To Fall; Students Demand Emergency Diploma Privilege To Practice Law (Mar. 28, 2020)
• Massachusetts Joins New York In Postponing July Bar Exam (Mar. 30, 2020)
• Connecticut Is Third State To Postpone July Bar Exam (Mar. 31, 2020)
• Hawaii Is Fourth State To Postpone July Bar Exam (Apr. 2, 2020)
• New Jersey Is Fifth State To Postpone July Bar Exam, First To Offer 2020 Law Grads Temporary License To Practice (Apr. 7, 2020)
• July Bar Exam Update: ABA, Arizona, California, Florida, Tennessee, Vermont (Apr. 8, 2020)
• Indiana Allows 2020 Law Grads To Serve As Graduate Legal Interns And Take February 2021 Bar Exam (Apr. 9, 2020)
• Utah To Let Grads Skip Bar Exam Due To COVID-19, But Only From Schools With 86%+ Bar Pass Rate; Grads Of Just 4 Of California's 21 Law Schools Would Qualify (Apr. 11, 2020)
• Licensing Lawyers In A Pandemic: Proving Competence (Apr. 12, 2020)

For complete TaxProf Blog coverage of the coronavirus, see here.