Nicholas Allard (Former Dean, Brooklyn), ABA Must Seize Opportunity To Respond To Bar Exam Chaos:
The American Bar Association was established in 1878 to improve legal education, to set requirements for gaining admittance to practice, and to facilitate the exchange of ideas and information among members of the profession.
As the ABA's first-ever virtual annual meeting continues through Tuesday, it will soon consider and vote on a new resolution that goes to the heart of its worthy founding purposes. This proposal could prove to be one of the most important measures ever to be before the ABA for many reasons.
Resolution 10G will be considered by the ABA House of Delegates, the organization's policymaking body. In brief, the resolution urges the highest court and bar admissions authority in each of the 50 states, the five territories, the District of Columbia, and Native American tribes to take emergency actions with respect to the admission to the bar and licensure of new attorneys that best fit the local circumstances of each jurisdiction.
The resolution is accompanied by a detailed report that explains the pressing need for additional adjustments to the steps already taken, but are now demonstrably inadequate, in the wake of the ongoing COVID-19 crisis. The report explains why local authorities should anticipate problems and accommodate and mitigate the hardships of needed new approaches that predictably will hit the less advantaged and disabled especially hard.
What is apparent is that no less than the future of the profession is at stake. It is not someone else's responsibility. Each and every one of us should become informed, engaged, and be open to ways to pitch in and help make the novel approaches work.
Although 23 jurisdictions held in-person exams on July 28 and 29, 11 others have postponed and still plan to administer them in September. A growing number have announced or are considering other options, including offering a remote online exam.
Resolution 10G builds on the foundation laid in April by an earlier ABA resolution (No. 77). It addresses the unforeseeable new developments in the bar admissions landscape over the last four months. ...
Legal education in the U.S. and an American license to practice license are widely regarded as the international gold standard. Even so, in the new world of law that is dominated by accelerating change, competition, uncertainty and risk, the luster of this standard cannot be maintained by clinging to the past against all evidence and in the face of a once-in-a-century emergency.
It simply cannot be the case that the collective talent and wisdom of our profession is incapable of developing ways to cope with the health crisis, and use even multiple new ways to license new attorneys to serve the public. We might even hope that the present necessity to experiment cautiously will jump-start efforts to improve the final stage of becoming an attorney.
Until that time, approving and heeding ABA Resolution 10G is a step in the right direction. Throughout it all our golden bar can be more involved preparing graduates for practices and making the next generation of attorneys shine brighter than ever.
Nicholas Allard (Former Dean, Brooklyn), Should We Raze the Bar? No—We Should Make It Better!:
Frequently and even recently in these very pages it is proudly asserted that “[t]he license to practice law in New York has long been considered the international gold standard.” (Michael Miller, July 21, NYLJ). Even so, in the new world of law that is dominated by accelerating innovation, competition and uncertainty the luster of this reputation cannot be maintained by clinging to the past. Adjustments and improvements in the way new attorneys are admitted to the bar are feasible and now urgently needed.
In the midst of the novel coronavirus crisis New York State’s Court of Appeals and its Board of Law Examiners (BOLE) have embarked on an historic opportunity to serve the public need for more good lawyers and affordable legal services. They can make sweet use of the awful adversity of the pandemic with sensible data driven timely changes to the old-fashioned bar exam.
Indeed, we will not have to wait. Last week, the Court of Appeals announced that an online version of the exam will be offered on October 5 and 6, 2020. Though details will follow as they are worked out, the Court of Appeals acknowledged that there are challenges and hardships with this emergency response to the health crisis and committed to mitigate them. ...
Justifications for the traditional bar exam are increasingly hard to come by. It is a perverse absurdity that the first thing law graduates must do after receiving their hard earned expensive diplomas, is to pay thousands of dollars to take a cram course for a test that bears little relation to what they learned in law school and even less to what they must know and do as practicing lawyers. After all, the practice of law is a lifelong open book exam.
It simply cannot be the case that the collective talent and wisdom of our profession is incapable of developing a better way or even multiple new ways to license new attorneys to serve the public. We can hope that the present necessity will jumpstart the effort to modernize the final stage of becoming an attorney. Until that time, adopting the right of diploma in New York for the class of 2020, as my former respected law dean colleagues urge, or amending the Court of Appeals practice order to establish a rigorous pathway to practice without sitting for the traditional exam, are approaches which deserve further consideration based on available and growing evidence. The traditional bar exam is only the best of all systems until you seriously consider the alternatives.