I know.
You are thinking what on earth is this guy talking about and why is he not buried in preparation for the bar.
Well, the former will be explained shortly, and in regard to the latter…it is my lunch break.
When I first moved to Lexington for undergrad, I had yet to receive my student loan dispersal. My apartment complex allowed me to sign and move in based on the documentation proving the loans were to be disbursed and keeping them posted with updates.
However, I had no mattress.
The place I had rented prior was fully furnished and so I had no mattress to bring with me.
Admittedly, this was poor planning on my part.
So, upon my arrival in Lexington, I searched for mattress stores near my apartment complex and decided to go see what type of expense I would be incurring. For the life of me, I cannot remember where the store was that I eventually went to (this was almost ten years ago).
My experience at this store made me think of the current debate over the bar exam.
Let me explain.
I went into the store and the manager walked up to me and we started chatting. After we had talked for a little bit and exchanged pleasantries, he told me he was a preacher or pastor at a local church (I cannot remember which one or from which church) and that he worked at the mattress store on the side because he enjoyed the interaction with the customers. I seem to remember him saying something along the lines of people being a unique type of happy when they buy a new mattress.
He was a very nice older man and it was a pleasant conversation. I explained I was new to Lexington and I was excitedly entering my undergraduate studies at the University of Kentucky.
He walked me around and showed me some different mattresses and taught me about the difference between spring and memory foam and gel. Eventually, I explained that I had to only “window shop” because of my student loan situation. I explained my predicament regarding loan dispersal, that I appreciated his advice and information, and that I would be back within the next few weeks when my loans disbursed.
And then, something unbelievable to me to this day happened.
He told me he would let me take the mattress that I had said I would come back to purchase.
Crazy, right?
Not without caveats of course.
He said he understood my situation, and that although it was something he hadn’t done before, if I let him get my driver’s license information and my phone number, and called him with updates, he would let me have the mattress. When the loans came in, he said I could come back and pay for the mattress and also buy the box spring.
To this day, I have never forgotten that moment.
We did not know each other, he did not owe me a duty or any obligation, and goodness knows that was certainly not customary practice.
But he did do it, and as a result, that night I enjoyed a restful sleep on the best mattress I ever had, filled with gratitude at the magnanimity of that manager.
Of course, the risk on his part was not, in reality, unbearable.
He had all of my information including where I was a student, my address, my picture, my phone number, etc. If I had somehow not ended up paying, he could have gone to the authorities.
Even so, it was an extraordinary gesture. A kindness, so out of the regular course of business, that it still remains shocking to me. But, nevertheless, it was one that he determined was justified under the circumstances in conjunction with the protections he had taken to ensure I did, in fact, end up paying.
I cannot help but compare this to the current situation I face with the bar exam.
This is a unique and extraordinary time we are all in. Much, much, much more dire, dangerous, and difficult than simply going without a mattress for some time.
But nevertheless, the similarities are there.
The normal course of conduct is one pays money for a mattress, receives the mattress, and that is that. The risk is zero, the money is in hand, and the mattress has been sold.
The abnormal course of conduct is that one gives a stranger a mattress for no money, receives a picture of a driver’s license and phone number, and a promise to pay. The risk is greater than zero, but given the steps taken, it is not necessarily as crazy as it sounds upon first blush.
Here, the normal course of conduct is to successfully complete ninety hours of legal education from an accredited law school, successfully pass the Multistate Professional Responsibility Exam, successfully have one’s character and fitness examined, and to take a final legal exam: the bar exam.
The abnormal course of conduct would be to successfully complete ninety hours of legal education from an accredited law school, successfully pass the Multistate Professional Responsibility Exam, successfully have one’s character and fitness examined, and to be granted a waiver from the bar exam.
The bar exam.
You know you are an attorney if you just broke out in a cold sweat.
As is true of any test, the bar exam is only as reliable as the circumstances under which it is given.
Giving someone a dart to throw at a dart board and then shutting the lights is not indicative of their dart throwing abilities.
Similarly, administering a two-day long, highly stressful, time-sensitive exam, while forcing all students to wear masks the entire period, closing common areas (I guess we will all be eating lunch silently in our bar exam seats?), taking our temperatures the morning of (fingers crossed we don’t have a temperature?), etc., is not exactly a testing environment conducive to an adequate representation of either our collective or individual abilities.
These are extraordinary times and the risks of non-administration must be weighed against the benefits.
As such, it is clear that the administration of the bar exam under these unique circumstances only provide a warped photograph, of a single moment in time, that would be a non-reflective assessment of what many of us are capable of.
Imagine when you took the bar exam having no quiet space, no library, no law school, no coffee shop, etc.—for the entirety of bar preparation.
Imagine worrying about whether your loved ones will still be alive and well when the bar results are published—for the entirety of bar preparation.
Imagine when you took the bar having to try to constantly reconnect to the internet in the middle of a video lecture, quiet a pet, share a single room with a working spouse, or all of the above with kids running around—for the entirety of bar preparation.
How could any exam, administered under, and after, those conditions, be reflective of a candidate’s ability to be a good researcher, caring counselor, or an ethical attorney?
It is a hypothetical question.
No exam could.
The risk of not administering the bar exam is that someone could be allowed to practice law who might not have been able to practice because they did poorly on an exam, administered under patently ridiculous conditions, in wildly stressful and uncertain times, after experiencing an incredibly difficult and inadequate period of preparation.
As such, the risk of not administering the bar exam in these circumstances is minimal, in large part because the accuracy and reflectiveness of the bar exam in demonstrating the class of 2020’s ability to practice law successfully is non-existent under these circumstances. The sometimes-imagined hordes of dangerously ill-prepared attorneys flooding the legal system is, simply put, not there.
Especially because the most important aspects of one’s ability to practice the law, have already been completed.
We have completed a rigorous academic education by a brilliant set of faculty who take pains to not only limit their discussion to case law but frequently discuss the actual practice of law, the ethics of being an attorney, as well as professional guidance.
We have completed a professional responsibility exam: The entire point of which is to ensure that all bar applicants have studiously worked to understand and appreciate the significant responsibilities which are part and parcel of being an attorney.
We have submitted ourselves to the invasive character and fitness review process where numerous individuals must attest to our character, in addition to having our credit and finances being reviewed, criminal record reviewed, our past/present mental health and related therapy/psychiatry reviewed, our past work experience reviewed, our past educational experience reviewed, our driving record reviewed, as well as full disclosure of any other matter that could relate to one’s character and fitness.
And finally, we are all several weeks deep into bar preparation.
Again, the risk to the public, in implementing a single, one-time, diploma license privilege would be practically non-existent, especially in light of the alternative requirements that could be enacted.
The benefit of a single, one-time-admission via diploma license, on the other hand, is enormous.
Cases are skyrocketing around the country, and although relative to a state that is seeing ten thousand new cases a day, Kentucky might seem to be doing well, we are definitely seeing an increase in cases significant for our population. We know many cases are largely asymptomatic, we know young people are increasingly infected, we know it can take two weeks for anyone to even show symptoms, we know that the infectivity of the virus itself is now greater with newer mutations than it once was, we know that new data points to aerosol infectivity being much higher than previously believed (the virus can remain floating in the air for long periods of time), and we know that the virus can be deadly—to all age groups.
How could such an esteemed institution, the highest court in our state, an institution built around the fair and just review of the totality of circumstances, look at the ever-worsening nature of the pandemic and all that we know as the facts currently stand, and decide a temperature check in the morning with a mask is either an adequate or a just solution?
This is a time to be like the gentleman who helped me all those years ago, by doing a temporary adjustment to the normal course of business, in order to both rise, and adapt to the occasion.
No student should have to risk their life, their safety, or their finances (for example: a hospitalization would bankrupt me as I have no health insurance), to sit for an exam.
No student should have to try to beg their employer to let them sit for a later exam date and postpone payment of their debts and earning an income because they don’t want to risk everything to sit for the bar exam.
No student should have to forego the practice of law after three years of multiple types of professional education and examinations because of an inability to adapt as other jurisdictions have.
We have graduated from professional, accredited law schools.
We have passed the Multi-State Professional Responsibility Exam.
We have submitted to a thorough and rigorous character and fitness examination.
We have spent weeks trying to study in preparation for the bar.
We, collectively, are saying we are ready, willing, and able to begin practicing law.
Supervision, enhanced CLE requirements, a bar on solo-practice for a certain period of time upon the grant of diploma-privilege, an eventual required “sign-off” by a bar-licensed attorney, non-reciprocity, etc. are all potential safeguards readily and easily implemented.
Just as the gentleman who once helped me had protections, there are so many protections that are available to bolster any grant of diploma privilege.
Please, we ask that in weighing the health and safety of the 2020 graduating class, the lack of accuracy that a bar exam administration in these circumstances would have, and the litany of requirements our class has already successfully satisfied, you consider Diploma Privilege as a temporary, emergency measure that is an appropriate remedy for an otherwise terribly unjust situation.
For more information on this topic, please join a webinar hosted by JURIST and United for Diploma Privilege on July 9th at 7 pm EST entitled: “Diploma Privilege and the Future of the Bar Exam.”
Alexander B. Wheeler, J.D., is a 2020 University of Kentucky Rosenberg College of Law Graduate.
Suggested Citation: Alexander B. Wheeler, A Mattress and the Bar Exam, JURIST – Student Commentary, July 9, 2020, https://www.jurist.org/commentary/2020/07/alexander-wheeler-diploma-privilege
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
