Thursday, July 2, 2020
That's how Texas bar taker Claire Calhoun put it when describing what she and thousands like her face with the prospect of in-person bar exams in light of increasing incidences of COVID-19:
“We really, really hope and frankly need the bar examiners and the Texas Supreme Court to do something here to step in on our behalf, because it’s life versus licensure, and I don't think that's fair to make us pick." https://www.texastribune.org/2020/07/01/texas-bar-exam/.
It seems like Claire has been heard, at least in part. On July 2, 2020, the Texas Board of Law Examiners, in part due to calls from students such as Claire, has decided to recommend to the Texas Supreme Court that in-person bar exams be cancelled and replaced with an October 2020 remote online bar exam instead. Id. As of this writing, let's hope that the Texas Supreme Court has heeded Claire's warning too. Frankly, it's a choice that no law graduate ought be forced to make.
Now I know that some might say that that's a bit too dramatic. That Claire overstates the risk of harm. But as any bar taker can tell you, it's a real palpable foreseeable risk of harm, something that tort law might and ought to recognize. And, I don't think that Claire's concerns are that far fetched, because some states, seeming to recognize the tort risks at hand, are requiring bar takers to waive liability claims against bar examiners as a condition to sit for bar exams.
In my opinion, that's too much to ask of our future colleagues. Let me speak plainly. It's wrong, downright wrong, especially because the risk of harm is not just a risk that the bar takers and proctors are being asked to assume but it's a risk that bar takers will then be spreading to others who didn't assume that risk at all. That's just not fair or right.
But I'm not convinced that postponement to October 2020 for a remote online exam is right either. Here's why. At this point, with just over three weeks to the scheduled bar exam in July, most bar takers have been studying full-time since graduation in May. They've been planning and preparing for July bar exams. And, as cited in the Texas Tribune article, the financial impact of a 3-month postponement is not something to be taken lightly: “I specifically budgeted my whole summer to take this July bar,” [bar taker] Anastasia Bolshakov said. “None of us are working right now. We have no income. The money we had in May, that's been slowly depleting.” Id.
Listen again to the words of these two bar takers. Don't just read them. Listen to them. Take them to heart, or at least hear them out:
"Budgeted my whole summer."
"Life versus licensure."
Perhaps the risk of COVID-19 will not materialize such that the July and September 2020 bar exams can safely take place in person without putting bar takers, examiners, or the public at risk. If so, by all means have the bar exam.
But if not, let's not fail our most recent graduates by not being ready to immediately provide an alternative licensure path, without any delay at all. For some states, that might mean being ready to immediately transition to an online bar exam with materials and procedures ready to go, for the July 2020 bar exam. For other states, that might mean be ready to roll out a diploma licensure option for July 2020 bar takers.
As every pilot knows, no flight plan is complete if it doesn't plan for the possibility of a diversion to an alternate destination in case the weather turns sour or the destination airport closes.
But it seems like many states have no alternative bar exam plans at all. And, in my mind, postponement is not really a viable alternative plan because it's asking too much of those who have so little to give, especially when they've spent so much, over the course of the past three years, emotionally, mentally, and financially, to prepare for embarking on the profession of serving as attorneys. To not have a viable alternative plan for our most recent graduates, at this point of time in the summer, is to leave our bar takers suspended in the air, without any place to land.
Perhaps I am speaking out of turn. Perhaps states have alternative licensure mechanisms ready to go so that the July 2020 bar takers need not fear any delays whatsoever. If so, let them be known. Share them with your future colleagues.
But if not, reach out to them. Work with them, their law schools, and state bar associations and practitioners to develop and plan viable alternative licensure pathways that are ready to go if need be. After all, at this point, no one has been able to accurately predict that path of COVID-19, not even the scientific experts.
That suggests that the best laid plans must include ready-to-go alternatives, too. That's the only way to fly safely. And that's the only way to practice law wisely. So also, it's the only way to do justice to not only the public but also our most recent law school graduates. (Scott Johns).
P.S. Let me suggest two possible licensure alternatives.
• First, a remote online exam with law schools footing the bill to provide - as needed - stable internet and testing locations for individuals without such capabilities. I would envision a 3-hour open book written exam, composed of four (4) 30-minute essays and (one) 1 mini-performance test, drafted by local practitioners and courts and their law clerks. Such an exam could be easily prepared and logistically administered by state supreme courts with just under three weeks to go to the July bar exam.
• Second, a diploma licensure "plus" program. In the event that in-person exams must be postponed without an alternative remote exam, partner with jurists, practitioners, and faculty to host two-day online workshops, guided by these experts, in which bar applicants and attorneys join together to work through a number of legal problems. In shaping the online program, I would encourage state supreme courts to frame workshop problems around current events that raise issues from the bar tested-subjects, with the workshops implemented in lieu of the July bar exam, such that completion of the exam would result in the admittance to the bar.