Annual Meeting

ABA to consider recommending in-person bar exams be postponed during COVID-19 pandemic

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A resolution urging state courts of last resort to cancel in-person bar exams during the COVID-19 pandemic, and develop alternate plans to license candidates, will be considered by the ABA House of Delegates assembly.

Titled Resolution 10G, it suggests remote bar exams, diploma privilege and limited licensing or supervised practice programs that lead directly to licensure as possible alternatives to in-person bar exams. Sponsors are the Virgin Islands Bar Association, the ABA Section of State and Local Government Law, the ABA Law Student Division, the Criminal Justice Section, the Section of Dispute Resolution and the Young Lawyers Division.

Additionally, the resolution asks state high courts with remote bar exams to complete platform testing “sufficiently in advance” of the test date and provide reasonable accommodations, including for test-takers who are caregivers and individuals who lack quiet spaces and reliable internet connections.

The resolution also asks courts to disclose what test taker data will be collected during remote proctoring, how long it will be preserved and what measures will be in place to prevent unauthorized disclosure of data. The resolution also states that remotely proctored bar exams should not penalize test takers for “natural” body movement, including lip and eye movement.

Scheduled to speak in favor of the resolution are Don Bivens, an Arizona lawyer who chairs the ABA Center for Innovation; Tom Bolt, the U.S. Virgin Islands state chair; and Daniel Rodriguez, the former dean of Northwestern University Pritzker School of Law, who is now a professor there.

Two lawyers are scheduled to speak in favor of the postponing the resolution indefinitely. They are Hulett “Bucky” Askew, who previously served as the ABA’s legal education consultant, and Darin Scheer, a Wyoming lawyer who is a member of the National Conference of Bar Examiners’ board of trustees, and the Wyoming Board of Law Examiners.

In April, the ABA’s Board of Governors approved a resolution urging states to adopt emergency rules authorizing limited practice with lawyer supervision for recent law school graduates if the coronavirus pandemic causes cancellations of July bar exams. At the time, only four jurisdictions had canceled or postponed bar exams, according to the more recent resolution.

When the COVID-19 pandemic started in the United States, there was optimism that the public health emergency would be over by the summer. But that hasn’t happened, according to the report accompanying the resolution.

“On the contrary, 18 states set single-day records of COVID-19 cases the week before the July 2020 bar examination was set to be administered, with cases declining in only two states. There is no indication that circumstances will meaningfully change prior to the administration of the in-person bar examinations currently scheduled for Sept. 9-10, 2020, and Sept. 30-Oct. 1, 2020.”

According to the National Conference of Bar Examiners, 24 jurisdictions had in-person July exams, and 15 have in-person exams planned for September.

Follow along with our coverage of the 2020 ABA Annual Meeting.

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