When we embarked on our law school journeys three years ago, we did so with the knowledge that we would have the same opportunity that so many others have had to be licensed shortly after graduation.

COVID-19, unfortunately, changed everything. It deprived so many of us of stability, of normalcy, and of opportunity. In the wake of COVID-19 came massive changes across all levels of society: restaurants and stores swiftly shut down, schools and universities moved classes online, and many Americans suddenly found themselves under stay-at-home orders. As the pandemic worsens, many of our neighbors have taken pay cuts or lost their jobs altogether, and still, more are struggling to pay their rent, mortgages, and other bills.

Like so many others across the country, bar applicants have been harmed by the pandemic. But where the legal profession has attempted to adjust to the pandemic to make things easier and more equitable, bar applicants have felt left behind. As courts across the country—including the United States Supreme Court—have moved hearings and arguments online, the bar exam remains a required and in-person activity. As our final semesters of law school moved online and many law schools adopted pass/fail grading, the bar exam remains a required and in-person activity. As law firms and legal organizations have moved their operations online and lawyers have embraced working from home, the bar exam remains a required and in-person activity. It is plain to any observer that things are not business as usual, yet bar applicants have been expected to operate as if nothing has changed.

But everything has changed. Everything except for the bar exam.

We appreciate the creativity that jurisdictions have shown when offering a bar exam this year. But no amount of modifications or accommodations can take away the pain, despair, and inequity thrust upon the 2020 bar applicants by the pandemic. By moving forward with a bar exam this year, in any format, we would unfairly leave behind many talented and hardworking graduates. We share portions of the many impact statements we have received to highlight the mounting problems facing bar applicants this cycle.

An in-person exam will leave behind applicants who are immunocompromised:

• “I have asthma, putting me at a higher risk for having a worse form of COVID-19 were I to contract it and also putting me at risk on the day of the bar exam, as it is difficult for me to breathe in a mask for lengths of time. I am also allergic to many of the medications COVID-19 patients may be put on.”
• “I have two rare diseases and am extremely immunocompromised. Traveling to Illinois and testing for two days in a closed space with up to 50 students could be a matter of life and death for me.
• “As a lifelong immunocompromised asthmatic, I am at high risk. If I develop COVID-19, there is a strong possibility that I will die.”

An in-person exam will leave behind applicants with disabilities or mental health conditions:

• “My mental health has suffered more so than in any other time. I live in a state of constant panic. I cannot go outside because if I get sick, I might not pass the Bar.”
• “Having ADHD, being trapped in one setting and being unable to remove myself from the distractions has made preparing for this exam a nightmare.”
• “The anxiety that has resulted from this has taken a tremendous toll on my physical and mental self.”

An online exam will leave behind applicants with limited resources:

• “We do not have stable wifi so I often find myself listening to lectures on my phone in the street so I can pick up service.”
• “I have no access to a library or consistently quiet study space. I had a plan to succeed on the bar exam that is now impossible to replicate, and I’ve had little notice to adjust.”
• “The lack of being able to study at a library or quiet space outside my home worries me that it will cost me not passing the bar exam.”

An online exam will leave behind applicants with children:

• “Due to COVID-19, neither affordable nor safe summer camp options are available for us. For that reason, my daughter is home with me all day. There are many days where it seems as though I have to choose between being a good student or a good parent.”
• “I have three school aged children who have been quarantined at home with me. I have had to divide my time studying for bar prep and taking care of their individual needs and helping them through a multitude of work.”
• “I have been juggling taking care of my eight month old baby on top of studying for the bar exam in the middle of a pandemic. I know two other new mothers who are trying to study for the bar as well. Each day has been unpredictable, exhausting, and depressing.”

An exam held this year, in any format, will leave behind applicants with dwindling finances:

• “I’m having to work a full-time job this summer in order to make sure my family can pay all our bills and buy food while simultaneously studying for the bar exam at nights and on weekends.”
• “Having to work, trying to stay safe, and trying to get the recommended amount of 300 – 500 study hours in is becoming impossible, even with the delay in the bar exam.”
• “The postponement of the IL bar exam has impacted my ability to meet my financial needs—I am currently without home.”
• “I am now working part-time and studying part-time, when I should have been able to study full-time. My study time has been cut, and I’m still not sure if I’ll be able to make rent in September.”
• “I will be using food banks come October if I am not allowed to start practicing.”

An exam held this year, in any format, will leave behind applicants of color:

• “As a person of color, I am doing everything I can to balance fighting for social justice, working, and studying. It is tiring to say the least!”
• “As a black law graduate, taking an in-person bar exam is quite literally life or death, in more ways than one.”
• “As a Hispanic/Latina first-generation law school graduate, COVID-19 has not only negatively impacted my family and my well-being but also other Hispanic/Latinx students similarly situated.”

Luckily, there is one solution that can address these safety and equity concerns: permanent licensure through diploma privilege. Licensure through diploma privilege would grant law licenses to all otherwise qualified applicants who are registered to take the September (formerly July) bar exam. Utah, Washington, and Oregon have all adopted diploma privilege as a result of the ongoing pandemic, and Wisconsin has used a diploma privilege system for many years.

We recognize that part of the goal of the bar exam is to ensure lawyer competence and thereby protect the public. That’s why the diploma privilege solution can include other mechanisms to ensure lawyer quality. Applicants who receive licensure through diploma privilege could be required to complete their first year of practice under the close supervision of an attorney, applicants could be required to attend additional continuing legal education seminars, or applicants could be required to attend lectures specifically aimed at covering material tested on the bar, among other things. Perhaps several of these additional requirements could be adopted.

Illinois already allows law students and graduates who have not yet passed the bar to practice under Illinois Supreme Court Rule 711. These individuals practice with a 711 license, which requires them to work under the close supervision of a licensed attorney. The very existence of Rule 711 confirms that applicants who have not yet passed the bar can nonetheless competently and adequately function as attorneys. Many bar applicants will have already taken and passed the Multistate Professional Responsibility Exam, and Character and Fitness requirements will remain in place. These two mechanisms can ensure the ethical conduct of lawyers and protect the public.

Licensure through diploma privilege may seem unprecedented, but so are the challenges that COVID-19 has caused. Enacting licensure through diploma privilege will help alleviate the financial stress and uncertainty that bar applicants have faced. It will allow applicants to begin their legal careers in earnest by providing our vulnerable communities with the legal representation that they so desperately need during this monumental crisis. And it will reinforce the principles and values that the legal community holds dear: professionalism, justice, and equity.

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.” 

Dalton Hughes, J.D. and Steven Tinetti J.D. are graduates of the University of Illinois College of Law. Mollie McGuire, J.D., is a graduate of the University of North Carolina School of Law. 

Suggested Citation: Dalton Hughes, Steven Tinetti and Mollie McGuire, We Aren’t Willing to Leave Any Bar Applicants Behind, JURIST – Student Commentary, July 6, 2020, https://www.jurist.org/commentary/2020/07/hughes-tinetti-mcguire-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.