Paul L. Caron
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Friday, May 22, 2020

July Bar Exam Update: Michigan, Minnesota, Nevada

CoronavirusMichigan Supreme Court, Revised Format for July 2020 Michigan Bar Examination (May 18, 2020):

In recognition of the continuing COVID-19 pandemic, in light of various current and projected pandemic-related restrictions, and pursuant to the Court’s constitutional and statutory authority to supervise and regulate the practice of law, 1963 Const, Art VI, Sec 5, and MCL 600.904, and in consultation with the Board of Law Examiners (Board), the Court orders that in lieu of the two-day exam previously scheduled for July 28-29, 2020, a one-day exam will be administered on July 28, 2020. The exam will be conducted online, and will consist solely of the essay portion of the traditional exam. ...

Supreme Court of Minnesota, July 2020/September 2020 Bar Examination (May 20, 2020):

The Minnesota Board of Law Examiners met on Friday, May 15, 2020 to discuss whether to move forward with the administration of the July 2020 Uniform Bar Examination (UBE). The Board carefully considered information provided by many sources both before the meeting and during the public meeting on May 15, 2020. The Board determined that it plans to administer the UBE as scheduled on July 28 and 29, 2020. In order to accommodate as many of the registered applicants as possible, the Board also plans to administer the UBE on September 9 and 10, 2020. This will permit the Board to provide adequate social distancing for all registered applicants. Applicants registered for the July 2020 examination will be provided with an opportunity to select their preference for the July or September administration of examination on or before June 3, 2020. Applicants registered for the July 2020 examination who do not wish to sit for the examination in July or September will be provided with additional options. ...

Recognizing the uncertainty surrounding the July exam, the Board petitioned the Court on April 20, 2020 to amend the Student Practice Rules to provide additional opportunities that would permit recent graduates the ability to practice while waiting to take the exam. Included in the recommendations is a renaming of the rules to Supervised Practice Rules and the adoption of a “supervised practitioner” category to distinguish recent graduates from current students. Consistent with similar decisions made in other jurisdictions, the Board recognized that permitting lawyers to practice under the supervision of another lawyer with full disclosure to the client and the Court would appropriately balance the necessary public protection against the need of recent graduates to obtain employment. The Petition is currently out for public comment and the Court’s determination will follow.

The Board has received inquiry as to the timing of the Board’s determination on the July exam. The Board’s timing has multiple factors. First, the Board received information that most students begin bar preparations shortly after graduation. The timing of the Board’s May 15th meeting fits nicely with that time frame. Second, information on the novel coronavirus changes daily and we know more today than we did on April 17th. Third, the Board recognizes the significant consequence of not proceeding with a July exam and a decision to cancel the exam or postpone the exam is not a determination that the Board wants to make. Applications for the July exam are as high as they have been in previous years and the Board continues to receive inquiries from prospective applicants. There is a strong interest in the Board proceeding with the July exam despite potential health risks. Fourth, the Board administering an in-person July exam does bring with it health risks that do not typically exist during exam administration. The Board needed time to talk to the appropriate experts and to be confident in our ability to provide an exam setting that would have the appropriate safeguards to reduce risk. The Board understands that sitting for the July or September examination may not be the right choice for every applicant and has worked hard to provide additional options for those applicants.

The Board has been asked to provide additional information as to why it is not advocating that the Court grant an emergency diploma privilege for this year’s graduates. To do this would be contradictory to the Board’s mission. Since 1891, the Minnesota Board of Law Examiners has been administering the bar examination. In 1921, Minnesota eliminated the diploma privilege. The bar examination protects the public by establishing a minimum competency standard for those licensed to practice law in Minnesota. Attaining a successful score on the bar exam is a prerequisite for being licensed as a lawyer capable of appearing alone in court and representing legal concerns of the public. It provides the public with an assurance that the individual has met minimum competency standards. There is an assumption that if the lawyer is licensed, that the lawyer is competent. Successful passage of the bar provides assurances that people entering legal practice have shown that they possess a minimum level of legal knowledge and ability. The process of studying for the bar constitutes a review and synthesis of the prospective lawyer’s 3 years of legal
education; such a review would not occur without a comprehensive exam following law school. The examination requirement for lawyers in Minnesota is similar to the examination requirements for other professions, including medicine, dentistry, nursing, and certified public accountants. Each of these professions require both graduation and a comprehensive examination. One of the fundamental duties of the Board is to determine attorney competence. The diploma privilege would not accomplish this purpose. Supervised Practice, as discussed above, would provide recent graduates with the opportunity to practice under the supervision of a Minnesota licensed lawyer while waiting to sit for the bar exam.

Finally, the Board has been asked to provide additional information on the protocols that will be in place for the administration of the July and September exams. Those criteria may be found here. The protocols will be updated as additional information becomes available

Supreme Court of Nevada, Order Approving Modified July 2020 Nevada Bar Exam (May 20, 2020):

This matter comes before the Court on the petition to approve the proposal submitted by the Nevada Board of Bar Examiners to proceed with the July 2020 Nevada Bar Examination as scheduled, but with modifications to its format. The Board's proposal eliminates the Multistate Bar Examination (MBE) from the July 2020 examination, since the Board has concluded that it cannot administer the bar exam in person consistent with COVID-19 social distancing requirements and the National Conference of Bar Examiners has not approved administration of the MBE remotely. The proposal maintains the essay portion of the examination, including eight Nevada essay questions and a performance test. The Board proposes to conduct the examination online using ILG Exam 360, except for applicants who require accommodation or who can choose to handwrite the examination. In consultation with a psychometrician, the Board has developed and included in its proposal specific procedures designed to ensure reliable grading of an essay-based exam.

The Court considered alternatives to the Board's proposal, including canceling the examination and affording a diploma privilege to all American Bar Association law school graduates, or postponing the examination until September, by which time in-person testing consistent with COVID-19 protocols or the ability to administer the MBE other than in an in-person environment might be possible. The Court solicited and received extensive public comment on these and other potential options and independently researched how courts elsewhere have responded to this dilemma. See https://news.bloomberglaw.com/us-law-week/more-states-move-upcoming-bar-exams-online-in-response-to-virus (last visited May 19, 2020); https://www.jdadvising.com/which-states-are-delaying-the-july-2020-bar-exam/ (last visited May 19, 2020) (tabulating state responses). After careful deliberation, we have reached the following conclusions. 

We reject the option of canceling the examination and affording a diploma privilege. In our view, this alternative fails to adequately protect the public against practitioners who have not established minimal competence. We further reject the option of delaying the examination until September. There do not appear sufficient assurances the MBE will be available other than in an in-person environment by September, or that a two month postponement will allow the Board to arrange and safely administer the exam in an in-person format consistent with the COVID-19 protocols.

We agree with the Board that proceeding with a modified bar examination in July 2020 is in the best interest of the State of Nevada and the applicants. The Board's proposal adequately balances a number of important interests. First, proceeding with a modified examination in July 2020 provides stability to applicants during uncertain times. Second, the proposal protects applicants and examination administrators by following COVID-19 social distancing requirements. Finally, SCR 66 ptovides that the essays may test the same subjects the MBE tests, among others, and the Board's grading protocols and retention of Dr. Roger Bolus to ensure reliable grading of the essays protects the public against practitioners who have not established minimal competence.

Therefore, we approve the proposal submitted by the Board modifying the format of the July 2020 Nevada Bar Examination, with one exception. An applicant who withdraws his or her application more than 5 days before the first day of the July 2020 examination shall receive a refund of the application fee or, if requested, defer taking the examination until February or July of 2021. The Nevada Bar Examination shall take place on July 28, and 29, 2020, with its format modified as set forth in Exhibit A and shall include the aforementioned refund/deferral provision. Further, Supreme Court Rules 54(4), 65, and 69(1), as well as paragraphs 14,32, 33, and 36 of the Addendum 1 to those Rules, shall be suspended for the July 2020 Nevada Bar Examination.

TaxProf Blog coverage of the July 2020 bar exam:

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

https://taxprof.typepad.com/taxprof_blog/2020/05/july-bar-exam-update-michigan-minnesota-nevada.html

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