The American Bar Association Board of Governors approved a resolution late Tuesday that urges states to immediately adopt emergency rules authorizing recent law graduates unable to take a bar exam because of the coronavirus pandemic to engage in limited practice of law.
The ABA board resolution seeks to allow 2019 and 2020 graduates of association-approved law schools to practice under the supervision of a licensed attorney, if the July bar exam in their jurisdiction is canceled or postponed due to concerns about the virus, according to an ABA statement. The group’s recommendation also extends to judicial law clerks who graduated in prior years.
State bars already have been considering different types of fixes to deal with scheduled July bar exam dates. Some states have already postponed their scheduled July bar exam, while others are considering a delayed summer exam date, only allowing small test-taker groups, or enacting “emergency diploma privileges,” which would allow graduates to practice without taking an exam.
In late March, the National Conference of Bar Examiners also said it will decide by May 5 whether to offer the multistate bar and essay exams and its performance test on July 28 and 29 as scheduled.
Depending on the jurisdiction, either the highest court or a bar admission group typically regulates attorney licensing procedures. Some of those states also are beginning to lead the way in devising solutions similar to what the ABA is proposing. In just the last couple days, regulators in New Jersey and Arizona adopted rule changes similar to those put forth in the association’s resolution.
At the same time, while authorities in Tennessee haven’t yet canceled or postponed its July bar exam, that state’s high court on April 2 ordered that qualified applicants, including those who graduate from law school between March 1 and July 24, and who meet certain other criteria, should have “the opportunity to practice under supervision until the admission ceremonies in November 2021.”
New York has been especially proactive. On March 31, the highest court in the state delayed its July exam. Soon after, deans from Columbia Law School, New York University School of Law, Albany Law School, and other New York-based law schools proposed that members of this year’s graduating class should be allowed to skip the exam because of the outbreak.
Yet the State Bar of New York’s Task Force on the New York Bar Examination rejected the idea of an “emergency diploma privilege,” which would have allowed graduates to practice in that state without taking the bar. Task force Chair Alan Scheinkman, a state court appellate judge, stated his concern, according to published reports, that because 15% of first-time bar exam-takers in that state fail, he’d be concerned about admitting people who do not possess a sufficient degree of competency.
“By justifiably postponing bar examinations, states are protecting law students and the public’s health, but the lives and careers of law graduates are being adversely affected,” ABA President Judy Perry Martinez said in the statement. “We are offering guidance to state bar admission authorities that will assist them while still taking every precaution to guarantee clients are competently and professionally served.”