July Bar Examinees Question Bar Necessity, Face ‘Impossible Choice’
After COVID exposure, states granting privilege and taken the test examinees ask — Why?

by Avery Martinez

One of the biggest days of any attorney’s life is the day they take the bar exam. But after this year’s test was disrupted in states around the country because of the COVID-19 pandemic, some examinees are questioning the bar, not just for COVID — but altogether.

Three students from Colorado’s two law schools agree that the social distancing and mask rules were followed well, but other options could have provided more safety, as well as economic and professional security.

At first, to Leah Fugere, a University of Colorado Law student and editor-in-chief of the Colorado Law Review, holding the bar exam in July amid the pandemic seemed like bad timing. She began the pandemic by hoping the state would not change the date of the exam but eventually came to actively try to eliminate it. She was involved with a letter sent to the Colorado Supreme Court asking it to adopt diploma privilege for the class of 2020.

“We weren’t asking Colorado to be the first,” Fugere said. “We were asking Colorado to be the fourth to do this.”

University of Denver Sturm College of Law students Andrew Shulman and Taylor Volkman felt the need to take action as the date of the exam drew closer and nothing within the state regarding the coronavirus had changed. Eventually, the group of students working on a petition the Supreme Court grew to a group of 10 to 15, and their online petition garnered thousands of signatures from students, professors and attorneys.

Diploma privilege was the best way to address the situation, Shulman said. And, privilege is not limited to the COVID pandemic but the bar’s inability to show competency. “It’s not one or the other, it’s both in combination.” He said the conversation would be different if any data could be put forth showing the bar accurately ensures competency in attorneys — “but that’s not true.”

Shulman said that the group put out an impact survey to practicing attorneys about whether or how the bar exam helped with their competency as an attorney. A total of 166 bar applicants took the survey, while 70 practitioners and employers responded to the survey. Around 75% of respondents said the bar did not prepare them for practicing and competency, roughly 12% said it was useful but would’ve been competent without it, and 11% of attorneys said they needed to take the exam.

The current situation offered a chance to look at what barriers exist for those entering the profession, Shulman added. Wisconsin has been doing diploma privilege for in-state law graduates since the 1880s, according to the Wisconsin Lawyer. He added that state’s attorney regulation counsel has discussed competency issues coming up decades into a career and nothing to do with work.

Support was garnered from all over the legal field. In a letter sent to the Supreme Court, over 200 students, faculty and staff of CU and DU said the class of 2020 is competent to practice law and ready to practice and serve.

After studying hundreds of hours for the bar exam, Volkman feels it doesn’t prepare someone to defend something in court, just how to take a multiple-choice test. “I can solve a multiple choice Fifth Amendment problem, but I have no idea how to make a Fifth Amendment argument in a courtroom,” he said. “I think there’s a more valuable conversation about competence that needs to be had outside of the framework of the bar exam.”

Volkman said it seems to him that the consensus about the bar exam is that it is a hazing ritual and shows discipline, but a clinic he attended at DU was far more beneficial than the bar.

Fugere agreed with the idea that a bar exam didn’t seem necessary to assess competency, noting both the CEO and president of the NCBE were admitted via diploma privilege. “So, they know, full well, that you can be a competent and licensed attorney without taking a bar exam. She pointed to Colorado’s high standards for professionalism and ethics and other safeguards in place for assuring competency.

And this year’s bar exam in particular had an additional level of concern. For many of the students taking the bar exam, there might have been a sense of pressure to take it now, despite concerns about coronavirus exposure.

Volkman said that there may be a perception that law school is for the privileged, but he believes that, at least for the state schools of Colorado, “that’s really not true.” He said many individuals need financial and other forms of help to attend school. The examinees behind the petition cited concerns about job offers that might expire — and the lack of income that would follow — and loan debt that would quickly go into repayment. According to the Federal Student Aid website, under the current CARES act, the 0% interest rate on loans are set to expire on Sept. 30, leaving recent graduates several months worth of loan repayment before they could sit for the spring exam and begin practicing.

And amid the current pandemic, many were faced with a decision of either disrupting their career to take the February bar or take the health risks. Volkman lives with high-risk parents and was concerned about COVID-19 exposure. He had not done much besides attending the bar exam to help keep them protected, he said. When he discovered, hours after the exam, that he had been in the same room with a student who tested positive, his frustration and worry began all over again.

Shulman said a large amount of data and testimonials were collected by the group working on the petition, and Volkman’s story was not singular — others in the group voiced concerns about living with high-risk family members, being in danger of losing homes due to lack of rent without a job or having job offers contingent upon taking the July exam or becoming fully-licensed. Although the examinees were given the option of taking the bar exam later, many seemed to feel that wasn’t really a choice.

The option of waiting for the next bar or taking the bar created its own conundrum.“It’s kind of an impossible decision because — what do you do?” Volkman said. For many DU students, their school health care program lapsed days after the exam, and now Volkman said he must apply for Medicaid. “What do you do? I don’t think there’s any right choices.”

Some employers did condition work offers on taking the July exam, the examinees noted. If the exam had been cancelled and diploma privilege offered, employers would have accepted it, Fugere said.

And with COVID numbers continuing to climb, Shulman said many are concerned that there is a possibility that there could be no February bar either.

“There are a lot of people left with uncertainty,” Fugere said, noting the state’s hiring freeze on court clerks. For those without job offers, the postponement left students asking employers to take on the burden of waiting until the next exam and taking on someone provisionally licensed.

The rule change from the court only allowed for limited practice, according to Fugere, and essentially extended student practice — the inability to bill clients, public defender track students couldn’t start without licensure — and Fugere felt the court had made “the most minimum concession it could and hadn’t thought really about the consequences of people who couldn’t economically they couldn’t handle a postponement or a deferral.”

Both Shulman and Volkman shared stories of individuals afraid to get involved with diploma privilege discussions out of fear of reprisal later in their careers or from the NCBE. Volkman said he had previously stayed anonymous out of concern whether he would have difficulty getting a job due to his involvement with diploma privilege.

But the road for these questions does not end with the taking of the 2020 bar exam in Colorado.

“While COVID was the impetus for this push, the bar exam is still rife with inequities and other problems,” Fugere said. “This Colorado group (and other groups around the country) will continue pushing for diploma privilege, as we think it is the most just, reasonable, and equitable path to licensure.”

This article appears in the Aug. 17 issue of Law Week Colorado. To read the rest of this, and other articles, from that issue, order a copy online. Subscribers can request a digital PDF of the issue.