Imagine you are in your third year of law school. The finish line of graduation is ahead of you and the most important test of your entire life looms on the horizon. You have gone through your law school classes for the last three years knowing that you will have to study for two to three months, take a two-day exam, and then wait until mid-fall before you can begin practicing law. Now imagine that a pandemic has made taking the bar exam unsafe and states have started to cancel the July 2020 bar exam. This is the reality that I and the rest of the graduating class of 2020 are living in as our third year is coming to a close with uncertainty on the horizon.

On March 27, 2020, the National Conference of Bar Examiners (NCBE) announced that it will decide whether to deploy materials for the July bar exam on or around May 5, 2020. The NCBE also opened up the possibility for jurisdictions to administer the bar exam in the fall. This indecisiveness has left many members of the class of 2020 confused and stressed about what will happen to their employment offers if the bar exam is not administered on schedule. Most third-year students at this point have paid for their bar prep materials and have submitted their bar applications. The delay in a decision is causing undue stress and uncertainty in a time where it is needed most.

Delaying the bar exam until fall may also prove to be unsuccessful because researchers are expecting a second wave of COVID-19 to emerge in the fall. The National Institute of Health is working on clinical trials of a COVID-19 vaccine, but there is no telling when it will be ready for public distribution. It is unlikely that the NCBE will allow the bar exam to proceed as planned this summer because of the pandemic and no way to ensure it can safely be administered. However, the state of the world is unlikely to change between July and October. So, where does that leave the class of 2020? It would be impractical of the NCBE to expect students to wait until February 2021 to take the bar exam. Such a large delay would lessen the number of lawyers going into the workforce and would impact employment offers already extended to members of the class.

So, what other option does the NCBE have if it chooses to cancel the bar exam in July but also cannot reschedule it in the fall? A working paper from scholars at Ohio State University Moritz College of Law has attempted to provide an answer. The paper advocates for jurisdictions to consider six possible alternatives to the administration of the July 2020 bar exam. An option that has gained favor among the class of 2020 and others is enacting emergency diploma privilege. Diploma privilege would allow graduates of ABA-accredited schools to obtain a bar license without having to take the bar exam. Wisconsin is the only state in the US that currently has this rule. In Wisconsin, students who graduate from one of the two ABA-accredited Wisconsin law schools are eligible to join the Wisconsin State Bar Association. If enacted, diploma privilege should allow recent graduates who were going to sit for the July 2020 bar exam to practice in the state where they graduated from law school.

In 2009, almost 14,700 members of the State Bar of Wisconsin were admitted though diploma privilege. Erica Moeser, director of the Madison-based NCBE, has advocated for Wisconsin to institute a bar exam because it prevents bad lawyers from “slipping through the system.” The use of diploma privilege has declined and it does not have the support of the American Bar Association. But does it have to be that way? There are so many academic journals and studies that show that the bar exam does not ensure that a person who passes the bar exam will be a competent lawyer. The bar exam tests how well a person can memorize a large amount of material in two to three months and regurgitate it all over the span of two days through answering essays and multiple-choice questions. In other words, the bar exam tells administrators which prospective lawyers are really good at taking tests, which are just okay, and those who are really bad at them. Some prominent leaders have failed the bar exam on the first try. Not because they were not smart enough, but because rapid memorization and regurgitation are not how some people learn. Diploma privilege will ensure that law schools are teaching information that will actually be helpful to students going into practice rather than pressuring students to take subjects that will be useful for the bar exam. Law schools may be more inclined to encourage students in their last year to take practicums and clinics that teach hands-on skills rather than encouraging them to take classes that will improve their chances of passing the bar.

I admit diploma privilege is not a perfect solution. There are likely prospective lawyers who have been able to get through law school without putting in hard work because they are good at school and taking tests. Admittedly, the abolishment of a bar exam may radically shape the legal landscape and how law schools recruit students. However, none of that should deter the NCBE from considering urging jurisdictions to consider adopting either temporary or permanent diploma privilege for people who were hoping to take the July 2020 bar exam. This change would give prospective lawyers security in the jobs they have accepted and would allow the class of 2020 to enter the job market in a time where lawyers will be needed to help deal with the legal issues that will come out of the pandemic. Recommending the cancellation of the July 2020 bar exam because August, September, or October may be a safer time is akin to the NCBE telling prospective lawyers that their livelihoods and need for security in this time do not matter. Regardless of whether the NCBE decides to cancel the July 2020 bar exam or recommend jurisdictions use diploma privilege, it should not wait until May 5.

I am not angry at the NCBE for creating unnecessary uncertainty. I am just disappointed.

Brittney Zeller is a third-year law student at the University of Pittsburgh School of Law and Deputy Managing Editor of JURIST. She intends to sit for the Pennsylvania bar exam in July 2020.

Suggested citation: Brittney Zeller, An Open Letter to the National Conference of Bar Examiners: We Need a Decision, JURIST – Student Commentary, March 28, 2020, https://www.jurist.org/commentary/2020/03/an-open-letter-to-the-national-conference-of-bar-examiners

This article was prepared for publication by Megan McKee, JURIST’s Executive Director. Please direct any questions or comments to her at commentary@jurist.org