Given the balkanized nature of bar examination policies across the U.S., only two general statements can be made about the examination which determines one’s ability to practice law: they’re inefficient on a good day, and they’re a public safety risk now.
Since at least the spring, newly minted JDs have been concerned about the risks associated with sitting for a bar examination due to the coronavirus pandemic. Gathering in enclosed spaces for an extended period of time poses an obvious safety risk, and in at least one state a test taker tested positive.
URGENT:
Received notice (anonymous, so please don’t ask who), that someone who sat the bar at Sturm Law tested positive for COVID-19.
If you were in room 280, or around folks who were in 280, it is especially important you quarantine and/or get tested.
— Andrew Shulman (@DewShulman) July 30, 2020
Moving online is the next best option, but that has not gone well either. In Michigan, the examination software was hacked during the exam. There are several other horror stories about exams gone awry, or being proctored in unsafe circumstances.
The bar examination is the professional credential equivalent of a 3.4 oz liquid limit on an airplane: there’s a case for it that becomes weaker when scrutinized, and COVID-19 has revealed that, perhaps, we don’t need it at all.
The obvious solution to this issue is for state bars to allow those who have completed law school to be licensed automatically. Some states have issued provisional licenses allowing lawyers to practice if they take the bar eventually and work under the supervision of an experienced attorney. If the completion of a JD from a law school accredited by the American Bar Association is insufficient proof that someone is qualified to practice law, then why did the ABA accredit it in the first place?
There is one exception to this: in the four states where one does not need to complete law school to become an attorney (California, Virginia, Vermont, and Washington State), a bar examination is a reasonable substitute for a JD.
More state bar associations should follow the lead of the few now granting an alternative path to licensure. And when the sky doesn’t fall, they should then look hard at scrapping the bar exam altogether.
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