The chaos of COVID-19 has left graduating law students – and hiring law firms – uncertain about what’s going to happen over the next year.  While most states would have offered their bar exam this July, many jurisdictions have decided to take precautions against the in-person exam.  Some states delayed the exam until later this year at the earliest, while some have granted provisional licenses to students who may practice law effective immediately.

How Are State Bars Handling COVID-19?

Reactions to the bar exam during COVID-19 have varied across jurisdictions, ranging from delaying the bar exam by a few weeks or months, switching to a remote option, modifying the length of the exam, granting temporary diploma privileges, or in some cases, doing nothing and merely lowering the passing score.

Delays

Almost all states pushed back the exam, at a minimum.  Some planned to administer the exam in September and have since canceled this date and instead planned for a fully remote exam in early October.  A group of states entered into a reciprocity agreement pertaining to this remote exam administration, so the following jurisdictions may be considered for reciprocity: Connecticut, Illinois, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Oregon, Tennessee, Vermont, and Washington D.C.[1]  This agreement will make the October remote scores portable across jurisdictions.  The signatory jurisdictions are still seeking additional states to join the agreement.[2]

Remote Exam

Bar exam horror stories liken the in-person exam to torture, so maybe a remote bar exam seems like the easy way out.  But what would a remote exam look like for recent grads?  The Ohio Supreme Court offered some guidance on what to expect.

The subject matter will still be derived from the Uniform Bar Examination, but the format will be four 90-minute sessions over the course of two days.[3]  These four sessions will include a Multistate Performance Test item, three Multistate Essay Examination questions, and two 50-question Multistate Bar Examination questions.  Compared to the normal 12 hours of testing, this may seem like a lucky break for students, but with remote test-taking comes remote proctoring.

While taking the test, examinees in Ohio must stay facing their computer’s camera for the duration of each session.  Abnormal movement or audio will be flagged by AI software and then reviewed by a human proctor for “potential cheating.”[4]

Some jurisdictions opted out of remote proctoring.  Indiana, for example, offered a one-day remote open-book exam.[5]  States declining to offer a remote exam cited concerns with beta-testing an exam in real-time.  Not all students have the technology or environment necessary for success on the bar.[6]

Do Nothing?

Some states, like Oklahoma and South Carolina, administered their exam in July as planned.  The administrators conducted temperature checks, enforced mask-wearing, and decreased the capacity to allow for social distancing.  In some cases, registered test-takers had the option to defer to a later exam if concerned about their health and safety.  Many states lowered their passing score, presumably to account for the additional stress and disrupted study periods students faced.  Otherwise, these states offered no remote options.

Provisional Licenses

Many states are offering some form of a provisional license or diploma privilege.  Louisiana’s response is notable.  While also offering remote bar exam options, Louisiana granted diploma privileges, “permitting certain ‘Qualified Candidates’ for admission to the Louisiana State Bar to be admitted to practice without the requirement of sitting for and passing the bar examination in 2020, provided all other usual requirements for admission are met.”[7]  Grads must participate in a mentoring program and get 25 hours of CLE’s under their belts by December 31, 2021, but then their law license is as good as if they’d taken the bar.

These provisional licenses and bar waivers are a flexible option for students amid a crisis.  Students petitioning their state supreme courts were crying out for the opportunity to find employment.  But how do employers view these changes?

Are Firms Changing Their Hiring Policies?

It’s an understatement to say that traditional hiring practices are on hold due to COVID-19.  At a time when unemployment is rampant, many law firms have felt the financial impact of the slowdown and have had to adjust their policies accordingly.  Even some of the largest firms have had to enact salary cuts for existing partners and associates to avoid or minimize layoffs.[8]  First-year associates will be feeling these impacts as well.

The fairly rigid hiring process in most firms brings first-years in on a pre-set schedule, usually starting after the bar exam and contingent on their passing.  With bar exam delays and other changes, however, it seems law firms don’t know what to do with their incoming class.  As of June 2020, according to the National Association for Law Placement (NALP), “half…of offices with Class of 2020 first-year associates have not yet established start dates for these associates.”[9]

Of those that did establish a start date, over half of them had to schedule the start date for January 2021[10] (back several months from the standard fall start.)  Many firms that deferred their start date have offered a cash payment or bonus as part of the deferral.[11]  Some unlucky grads had their offers rescinded.[12]

Most firms would prefer their incoming class to have taken the bar exam before they start, as full employment at the firm remains contingent on bar passage.  At this time, it’s not entirely clear how firms will adapt to the bar exam changes, but more likely than not, firms will still want to see that their associates passed the bar exam, whether remote or in-person.

How Much Does the Bar Exam Matter?

Nobody wants to take the bar exam.  It’s widely touted as one of the worst experiences in a lawyer’s life.  It may seem too good to be true, especially in states granting diploma privileges, waiving the requirement to pass the bar exam.  On the other hand, students undergo a grueling three-year (or four-year, if part time) program in anticipation of this exam, and for many type-A lawyers, the satisfaction of completing the test may be their greatest goal.

Petitions to state supreme courts have called for diploma privilege because students are under stress and experiencing financial hardships.  Job offers are revoked, the employment market is uncertain.[13]  But how much opportunity would a diploma privilege actually offer a recent law grad?

In Washington state, for example, hundreds of law students opted to receive their law license through diploma privilege rather than take the bar exam.[14]  One student commented that law licenses aren’t “just being handed” to students through diploma privilege – the rigor of law school should be able to speak for itself.[15]

Between two qualified candidates, however, if one has passed the bar and one has not, is it safe to say that acquiring a license through an emergency diploma privilege will set grads behind?  In some cases, hiring attorneys may think so. (“I have to think that most people would want to hire a lawyer who passed the bar.”)[16]  However, many advocates have been calling for modifications to – or total elimination of – the bar exam long before COVID-19 struck.  The bar exam, they say, is unfair, biased, and disparately affects poor students and students of color.[17]

And How Much Does it Matter to Firms?

If grads tend to think that the bar exam isn’t the best test of competence, do firms?  Firms concerned about hiring incompetent or unproven associates may fear the threat of malpractice and increased premiums, but professional liability insurance firms don’t seem very concerned.  Generally, insurance companies don’t even take licensing into account, and the changes around diploma privilege do not seem to affect that.[18]  They are more concerned with the close supervision of the new associates, a long-standing tradition in firms to train and build up new associates.[19]  One study in June showed that employers were still on the fence.  A relatively small percentage of new associates (6.3%) said their firm would still require them to take the bar exam, while 11% were unsure whether their diploma privilege would be sufficient.  A whopping 60% of respondents knew their employer would accept diploma privilege.[20]

Ultimately, the health and safety of new attorneys must be paramount, but when practice begins to return to normal, the drastically different status of law grads across the country may present issues for years to come.  Hiring firms should decide now, if they have not already, how they are going to address applicants admitted by diploma privilege.  This policy will need to apply not only through the remainder of the COVID-19 pandemic, but potentially longer-term.  If all goes well with this summer’s class of diploma privilege grads, it may pave the way for merit-based credentialing in the future.  Goodbye, bar exam?