2020 has been one hell of a year for all of us, and for once bar applicants aren’t left out of the summer action. Lucky us. A global pandemic, important social changes, homeschooled kids, housemates loudly participating in Zoom meetings from the living room, family members filming TikTok videos of their bread baking efforts from the kitchen, and a looming recession certainly hasn’t made focusing on an exam easy. But even more frustrating are the ever-moving finish line and ever-changing rules State BLEs are intent on implementing for the sake of determining competency through a standardized exam largely considered to be a hazing ritual with no correlation to the practice of law.

It all just begs the question: why?

When jurisdictions started considering alternatives to in-person bar exams that would cut into NCBE’s revenue, a remote exam suddenly became a viable option. Several jurisdictions jumped on board. At first, it seemed like a solid solution. But bar applicants, law professors, and law school deans quickly realized what many BLEs continue to refuse to acknowledge.

One of the three vendors contracted to provide the exam, Extegrity, even pulled out of the exam administration, telling NCBE and state BLEs the remote exam simply wasn’t technologically feasible or aligned with the pedagogy by which current applicants have been trained. ILG’s software tests have broken laptops, compromised user data, deleted files, and changed examinees’ essays. They have postponed their latest software test indefinitely, with only 10 days until the Florida exam. ExamSoft’s botched Michigan exam is being investigated by DHS and the FBI for a cyberattack. Michigan had less than 800 examinees. October’s exam will have 30,000.

But in the most 2020 of moves, BLEs doubled down. When presented with racial bias, a global pandemic, lost job offers and health insurance, data breaches, and repeated demonstrations that the software vendors cannot deliver, most jurisdictions have refused to seriously consider alternative paths to licensure. And when the public protection argument simply won’t hold water, what reason are we left with? Could it be that the bar exam is just a gatekeeping mechanism?

Sure it can. South Carolina introduced a bar exam in 1950 to keep “Negroes and some undesirable whites” out of the profession. (“The Ethics of Teaching,” edited by Michael A. Boylan) So why not in 2020 use it as a means of keeping the perceived glut of attorneys down in the face of a recession?

Yes, the economy looks bleak for everyone at the moment. Firms have laid employees off. Government agencies are under hiring freezes. Small private practices are hurting for business when people don’t have extra money lying around to engage in court battles. But none of this actually indicates a glut of lawyers and, possibly more importantly, ignores the market needs new attorneys to fill.

First, the majority of bar applicants are millennials, a generation uniquely focused on social responsibility and a sense of purpose in their work. Freshly minted millennial lawyers are more likely to take on pro bono work to build up a client base, gain experience, and fulfill their desire to serve the public.

Second, “legal deserts” continue to create serious gaps in access to justice for rural communities. Why not incentivize law grads facing six-figure student loan debt to take these positions in areas with little competition and low costs of living with some debt forgiveness or housing incentives? We pull prospective homeowners into urban neighborhoods that need redevelopment near jobs; the legal profession could do the same thing in rural communities instead of pushing people out of the profession.

Finally, and most significantly, new attorneys are cheap. COVID presents a slew of legal issues when money is tight. Why set pro se parties up to fail when new attorneys could be charging low rates or taking on pro bono clients and taking some of the case backlogs off our more senior colleagues?

So the question we are left with is why? Why are the majority of jurisdictions intent on creating every barrier they can think of to keep bar applicants from entering the profession? Why do so many jurisdictions continue to fight common-sense solutions tooth and nail? Only the state BLEs truly know the answer, but it seems clear that they have no real vested interest in facilitating the efficient licensure of new attorneys.

JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.

Brighid Tracy has a JD from the University of Maryland Carey School of Law and a Business degree from Rutgers University. She is currently a Circuit Court Law Clerk, former Court of Appeals Judicial Intern, and former Appointee in the Office of Governor Larry Hogan. She’s a proud mama to two toddlers with a third on the way.

Suggested citation: Brighid Tracy, New Attorneys Need Not Apply, JURIST – Professional Commentary, August 12, 2020, https://www.jurist.org/commentary/2020/08/brighid-tracy-licensing-new-attorneys/.

This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org