Bar Exams Nationwide Test New Tech, Stick to In-Person, With Uncertainty
Examinees face everything from ‘cyberattacks’ to multi-state licensure and mask-less testing centers

by Avery Martinez

While Colorado has made headlines for the July bar exam and the COVID-positive examinee who sat for the bar, other states have had technology issues and some have made alterations to their bar exams as a response to the COVID pandemic.

The majority of states have opted for the traditional in-person exam on dates in July, September or October, while others have turned to “remote” exams, with only a handful providing emergency diploma privilege.

Only one state, Delaware, has outright cancelled the bar, and Florida has postponed it with a date to be determined, according to the National Conference of Bar Examiners’ website, which lists details and information on each state’s bar exam decisions.

In Colorado, despite the many safety precautions outlined before the July bar — ranging from temperature checks to examinees testifying they hadn’t had any symptoms — an asymptomatic carrier exposed students at one of the DU testing sites. Prior to this incident, students, law school faculty and practicing attorneys had urged the Colorado Supreme Court for options such as remote examinations and diploma privilege.

REMOTE BAR EXAMS

Nationwide, a total of 17 states offered remote exam options including New Hampshire, New York, Michigan, Illinois, California, Louisiana, Tennessee, Ohio and the District of Columbia.

New York was originally slated to have an in-person bar exam in September. However, due to public health concerns and government restrictions, the exam was canceled, according to the state board of law examiners website. Those who were registered for the September bar were automatically re-enrolled for the emergency remote option in October.

And many of these states became “Reciprocal Jurisdictions” for an online and remotely proctored “Admissions Assessment,” according to the Tennessee Board of Law Examiners website. In July, the Tennessee Supreme Court canceled the Fall bar exam, opting instead for an online admissions assessment in October.

“The online Admissions Assessment will consist of 1 Multistate Performance Test item, 3 Multistate Essay Exam questions and 100 Multistate Bar Exam questions, all being released by the NCBE specifically for the online test,” the TBLE website reads. Further, these reciprocal jurisdictions will allow examinees admission in Tennessee and the other states involved with the agreement — Kentucky, Oregon, Maryland, Massachusetts, New Jersey, Vermont, Ohio, Connecticut, New Hampshire, Illinois, the District of Columbia and New York.

The TBLE is currently working to establish further reciprocity with other jurisdictions for portability of the assessment score.

Meanwhile, down south, the Louisiana Supreme Court, acting on the recommendation of the state Committee of Bar Admissions, announced that the upcoming remote October bar exam will be taken in an “open-book format, with no live monitoring or proctoring.” The entire process will be conducted by email — the examinees will receive the questions via email and return them the same way.

Since the exam is open book, the applicants are allowed to use outside material, but not allowed to get help from another individual, according to a press release. The examinees must still satisfy character and fitness requirements and pass the Multistate Professional Responsibility Examination.

“The Committee on Bar Admissions advised that it is not feasible to administer the remote bar examinations utilizing the current software vendor, therefore today’s Order provides Bar Exam applicants with the opportunity to sit for the Bar Exam without further delay due to conditions presented by the COVID-19 pandemic and possible unexpected technical issues which may have interrupted their remote testing,” Louisiana Supreme Court Chief Justice Bernette Johnson said in a statement.

One such instance of online bar exam technical difficulties came in Michigan, where more than 700 people taking the online July exam faced a sudden crash in the system, which the state supreme court told The Detroit News was due to a “cyber attack.”

The exam was manufactured by ExamSoft Worldwide Inc., and students were locked out at the start of a second module of the five-part test, according to the News. The situation was dealt with shortly; within 10 minutes, 200 students were allowed back into the system and the others were able to access it in 37 minutes.

In 2015, Examsoft was involved in a lawsuit in which they paid over $2 million to settle a class-action suit that claimed a glitch in its technology caused more than a few lawyers to fail the multiday test, according to the Courthouse News Service.

Both Nevada and Indiana pushed back their online exam dates after practice tests encountered technology issues, and both states used the same vendor. Executive Director of the Indiana Supreme Court’s Office of Admissions and Continuing Education Brad Skolnik mentioned that users were experiencing delays in typing in practice tests and that this created “unnecessary anxiety to applicants and impacted their ability to study.” In response, the state changed the date of the exam to await updates by the vendor, ILG Technologies.

The exam was rescheduled for Aug. 4, and no further word of technical issues or difficulties has been given by the state court or local sources.

In Nevada, the state bar website stated that the delay was due to problems with an update to the test software system, which the vendor was set to correct. “Rather than risk problems during the exam, the decision was made to postpone the exam,” Brian Kunzi, director of admissions for the state bar of Nevada, said in a statement.

IN-PERSON EXAMS

A total of 30 states have offered, will offer or offered in conjunction with other options, in-person exams in July, September or at a date set by the state, according to the NCBE website.

These states include Hawaii, North and South Dakota, West Virginia, New Mexico, Maine, Rhode Island, Alabama and Colorado.

And way up north in Alaska, the bar exam will go on as planned in September with a limited number of seats after being pushed back from July, according to the state bar website. A group of recent law school grads had asked the Alaska Supreme Court to allow the practice of law without the two-day test, according to Alaska Public Media. The students petitioned the court for emergency suspension of the test requirement — following the path of four other states — or remote testing.

APM reported that the largest test center will have applicants split into several rooms with 25-examinees in addition to proctors and administrators, with strict compliance to health protocols.

Colorado had its own group of grads who urged the state to offer other options than the health protocols and the in-person exam.

North Carolina received some criticism, according to the ABA Journal, that noted a local TV station aired footage showing individuals at the check-in area for the exam not wearing any masks.

A handful of states offered both in-person and online options for exams, including Idaho, Texas, Oregon and Arizona.

DIPLOMA PRIVILEGE

Only five states offered diploma privilege options — Oregon, Washington, Utah, Louisiana and Wisconsin. However, none offered privilege as the sole option for examinees. Three states offered in-person exams: Wisconsin, Washington and Utah. Meanwhile, Louisiana offered a remote bar exam. Oregon was the only state to offer all three options: diploma privilege, remotely administered exams and in-person exams.

While five may have offered it, 13 states denied petitions or requests for emergency diploma privilege during the pandemic, according to the NCBE. These included Alaska, California, Illinois, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Pennsylvania and Tennessee.

In Oregon in particular, support for diploma privilege in response to the pandemic was particularly vocal. State AG Rosenblum assured Oregon exam takers in writing that the state DOJ plans to honor the court’s decision and no employer should hold diploma privilege against them. Rosenblum also said that the court had made the difficult call correctly to offer privilege and called on other attorneys to voice their support.

Students in Oregon had the right to either accept diploma privilege or elect to take the bar. According to an Oregon Bar Association FAQ sheet, the privilege only applied to the state itself, those looking for other state licensure would need to pass the bar exam.

According to the OBA, two different groups were eligible for diploma privilege: graduates from the state’s three law schools who submitted complete applications for the exam and graduated this year, and graduates from all ABA-accredited schools who applied for the Oregon bar this year. For the ABA-accredited privilege option, individuals must have come from a school with a minimum of 86% pass rate on first attempt of the bar. No one was allowed to “switch” their decision after it had been made.

Wisconsin has been offering the privilege since the 1870s. Margo Melli, a longtime professor at the University of Wisconsin Law School, wrote in an article that bar admissions were minimal at best around the nation until the 1930s. She notes that prior to 1900, the bar exam was more of a formality in some states and notes a story where President Abraham Lincoln, a lawyer himself, suggested a man be admitted to the bar after simply having a conversation with him.

CANCELED OR POSTPONED

Despite the pandemic and uncertainty, only Delaware cancelled the bar exam outright for 2020, according to the NCBE.

The Delaware Courts webpage explains that the state Supreme Court cancelled the exam due to the public health emergency caused by the pandemic. A temporary limited practice rule allows for “many” of the 2020 bar candidates to perform legal work, under the supervision of a Delaware lawyer until “the next administration of the Bar Exam.”

Under the “extraordinary measure,” the limited practice privilege applicants can take part in many legal actions, such as court appearances, until the 2021 bar, according to a Delaware Supreme Court release.

Florida postponed its August bar exam after “failures in pandemic procedures” for the exam led to a last-minute cancellation of the bar. The state has since started working to create a supervised practice program, according to the Florida Bar website.

The state board’s original plan was to offer a licensure opportunity this month, but “it was determined that administering a secure and reliable remote bar examination in August was not technically feasible,” according to a Board of Bar Examiners release. A live trial of examination software was scheduled for last week but was scrapped. The board plans to try and reschedule the exam for a to-be-determined date in October.

Florida’s Chief Justice Charles Canady released a video apology to bar exam applicants and the “public over failures in pandemic procedures” for the bar. “We acknowledge and accept the criticism that has been directed at the court and the Board of Bar Examiners. Our inability to offer the bar examination in August was a failure. We apologize for that failure.”

Several Colorado students have raised questions as to the future of the February 2021 bar exam due to these events and the rising number of COVID cases.

It seems only time will tell.

 

This article appears in the Aug. 24 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.