At 4 pm on July 29, I will walk out of the Holiday Inn in Columbia, Missouri, after completing the second day of the Uniform Bar Exam, thus concluding one of the most important steps in my professional career. Yet, I will have a completely different set of test results on my mind. Will I test positive for COVID-19? At worst, the results will reveal whether I live to become a lawyer. At best, the results determine how soon I get to see my wife and nine-month-old daughter. Both options are unacceptable and, more importantly, entirely avoidable. I am prepared to take the Bar Exam. That does not mean I should.
On July 9, Missouri health officials reported 958 new COVID-19 cases, 890 hospitalizations, and five deaths. On that same day, the Missouri Supreme Court announced that the in-person July Bar Exam would not be canceled, delayed, or administered online. As of today, COVID-19 cases continue to rise, cities are rolling back reopening plans, and 673 bar applicants are preparing to travel to two COVID “hotspots” where they will spend two days packed together in hotel conference rooms. Once the exam is finished, the examinees will share a collective sigh of relief and head home as newly minted, presumptively positive COVID patients.
Hundreds of bar applicants, lawyers, and the deans of Missouri’s four law schools provided the Court with effective, actionable alternatives to the in-person Bar Exam. Yet, the Court concluded that the Missouri Board of Law Examiners (MBLE) implemented sufficient precautionary measures recommended by the CDC to safely conduct the exam. In further support of its decision, the Court theorized that only an in-person exam will “protect the integrity of the profession and the public from those who have not demonstrated minimum competency to practice law.” As I read the decision, I found myself translating the Court’s words into plain English, and here is what I ended up with: “Many of you will get sick and some may have to die to protect the public from a greater threat––hypothetical legal malpractice suits. It is a risk we are willing to take on your behalf.”
The Court’s rationale rests on two questionable suppositions: 1) the MBLE has taken appropriate steps to ensure our safety; and 2) an examinee demonstrates minimum competency to practice law by passing the Bar Exam. Both statements are demonstratively false. First, the MBLE took deliberate steps to bypass CDC guidelines. At the test site in Columbia, the MBLE utilized Section 1.17 of the county’s lockdown order, which allows organizations to submit an “Operational Plan” to obtain a waiver to exceed the 50-person occupancy limits. In doing so, the MBLE sidestepped its obligation to take appropriate precautionary measures recommended by the CDC. When asked why such a waiver would be granted, Columbia City Council Member Ian Thomas referenced the exceptions clause and stated, “Nevertheless, I think it is unsafe and would probably not participate if I were you (although I realize that may not be so easy).”
Taking the exam is not safe. Information continues to pour in about how to effectively mitigate the risks of COVID-19. Every day, additional research from experts produce new data that debunks old standards and practices. The CDC and local officials are constantly adapting to keep the general public safe. Just yesterday, the head of the St. Louis Metropolitan Pandemic Task Force, Dr. Alex Garza, stated “We’re seeing numbers that take us back in time to early June and even May, when the virus was spreading at a really rapid rate.” This surge is predominantly affecting young adults, ages 20-29. It is not too late for the Court to reevaluate their decision in light of the developing situation. The MBLE and the Court must acknowledge that there are no “sufficient precautionary measures” save one, canceling the exam.
The second factor tilting the Court’s scales in favor of an in-person exam is the assurance of minimum competency that the Bar Exam allegedly guarantees. I am going to risk assuming that most readers of JURIST are attorneys or affiliated with the legal profession, so I will not waste my limited word count explaining an obvious fact: No, it does not. Instead, I will stipulate to the Court’s position for the sake of this argument. Thus stipulated, public health and the safety of hundreds of future lawyers clearly prevails. The scales only tip in favor of the exam if the weight of antiquated tradition, racial animosity, and elementary hazing are applied as well.
I can confidently say that my life, and the life of my fellow graduates, trump any interest the legal community has in “minimum competency.” That is not to say that we will be incompetent. In fact, many legal malpractice cases arise from the conduct of seasoned attorneys far removed from the Bar Exam. We have successfully completed three years of law school, taken a mandatory course in legal ethics, passed the Multistate Professional Responsibility Exam (MPRE), and were subject to the MBLE’s character and fitness investigation. If some unethical, future tortfeasor slipped through the cracks, the Bar Exam will not weed them out. We will.
Lawyers are the first line of defense in the fight against unethical and incompetent conduct. It is a logical and self-executing check that starts in the first year of law school. Before the second semester of 1L year, we drafted resumés aimed at proving our worth to potential employers. If chosen for an internship, every day was a battle to validate our new boss’s choice. This is a competitive profession. Hundreds of people are waiting in line to take our jobs. In my office, lawyers have proofread my draft motions, reviewed my legal memos, and taught me the law of the land as it applies to St. Louis. I was not allowed to make a mistake, and if I did, lawyers in my office, not opposing counsel, quickly corrected the situation and reprimanded me. We represent our law firms, and those firms have a compelling financial interest in maintaining a high level of integrity and competence. The Bar Exam does not perpetually shield the public from bad lawyers, accountability does.
I am not the perfect voice for diploma privilege in Missouri. No one is. All of our stories are unique. Many of us cannot afford a delay in testing that results in indefinite unemployment and no medical insurance. Others fear that they will have to take an online exam with limited internet access or in a crowded home if the test is administered online. Some refused to stay quiet and sacrificed their time and safety to cry out for social justice reform in the wake of an unprecedented opportunity for positive change. For me, I am scared of returning home biologically weaponized and putting my young daughter and wife in danger. At the very least, most of us simply do not want to risk our health to prove that they are minimally competent.
Today, the Court adheres to CDC guidelines, prohibiting in-person oral arguments, and any unofficial business in the courthouse. We are asking for the same consideration, nothing more, nothing less. Delaying the exam will only increase stress by placing examinees in a court-ordered purgatory in which we cannot work or effectively study while we await a new test date. We should be permitted to work safely during this global pandemic, and the Court should take this opportunity to address the socio-economic and racial injustices that are inextricably linked to the Bar Exam. Change will inevitably come. On the eve of the exam, diploma privilege is the only just course of action. No one needs to get sick, infect others, or possibly die.
For more information on this topic, please see the recording of the webinar hosted by JURIST and United for Diploma Privilege on July 9th entitled: “Diploma Privilege and the Future of the Bar Exam.”
Michael Durham graduated from Saint Louis University School of Law in 2020. He is an 11-year veteran of the U.S. Air Force, serving as an in-flight refueling operator and mission director. In 2014, he graduated from Norwich University with an MA in Diplomacy.
Suggested citation: Michael Durham, Safety, Not Competency, Should Govern Missouri’s Decision to Administer an In-person Bar Exam, JURIST – Student Commentary, July 18, 2020, https://www.jurist.org/commentary/2020/07/michael-durham-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.
