The COVID-19 pandemic has disrupted Californians in every field and profession. Aspiring attorneys, who need to pass the California Bar Exam to practice law, are no exception. California’s uncertainty in determining when and how to administer the exam has left Stanford Law School (SLS) graduates frustrated and anxious about their ability to finally become lawyers after three years of intense and expensive legal education.
Traditionally, the California Bar Exam “is an in-person two-day exam,” Executive Director of the Stanford Center on the Legal Profession Jason Solomon said. “People will go to different locations around the state, generally kind of big kind of convention center where lots of people can fit and fill out an answer sheet for the multiple choice questions or type up answers either on a computer or handwritten.”
Because the pandemic prevents in-person exams where test takers would be crowded in convention centers, individual states are responsible for deciding how — or if — to administer their respective bar exams for the foreseeable future.
California has not yet made a decision, and there has been “uncertainty, confusion, and lack of clear information coming from the California Bar about when, exactly, the Bar Exam will actually happen and in what format,” wrote Esther Yu J.D. ’20, a recent graduate of SLS, to The Daily in an email.
This uncertainty had caused some SLS graduates like Tyler Bishop to move their test date to Feb. 2021.
“The failure of this state to make quick decisions, it’s kind of thrown this up, thrown everyone into a little bit of uncertainty,” Bishop said. “So early on, I was already feeling like I would rather take a later administration of the bar, rather than deal with this uncertainty this year.”
The delays also have severe impacts on students who want to take the test as soon as possible. Many recent graduates “have taken out loans to support themselves during this time because they have been busy studying for the bar exam and mostly can’t work. So you’re asking them to incur more hardship,” Solomon said.
Yu also explained that some law firms have moved start dates for recent graduates to January and thus created a long period of no income for many graduates across the country.
While California has delayed making a decision, other states across the U.S. have implemented workarounds to ensure that graduates will not experience severe hardship.
“Some states have said, ‘okay, we’re just going to say because of the emergency that if you graduated from an accredited law school, sometimes limited to in state law schools or law schools that have achieved a certain bar passage rate in the past, then we’re going to say, you’re going to be admitted to the bar, and you don’t have to take an exam,” Solomon said.
The Oregon Supreme Court has gone down this path, deciding on June 29 to waive the bar exam and grant ‘diploma privilege’ to all recently graduated students, meaning that graduates could become full attorneys without needing to take the bar exam. The graduates must be from one of the three Oregon law schools, or any other law school accredited by the American Bar Association that had a minimum of 86% of graduates pass a 2019 Bar exam on their first attempt, in order to be granted diploma privilege in Oregon, according to the Willamette Week.
This course of action is popular with recently graduated Stanford Law School Students like Bishop and Yu.
“I think it would make the most sense for the California Supreme Court to demonstrate its faith in the students of the state, and just grant diploma privilege. . . and allow the legal industry to move forward without letting Coronavirus derail an entire class’s entrance into the profession,” Bishop said.
Several California law school deans from UC Berkeley, UC Hastings, UC Irvine and UCLA recently spoke with the California Supreme Court to advocate that all graduates be granted diploma privilege.
In an email to all recent Stanford Law graduates, provided by a recent graduate who wished to remain anonymous for fear of retaliation in sharing the email, Stanford Law School dean Jenny Martinez wrote that she “ha[d] been participating in a joint effort by the deans of the ABA-accredited schools in California to urge the bar to grant some form of diploma privilege.”
Despite the popularity of diploma privilege, Solomon said that the California Supreme Court is leaning towards administering an online exam. Both Solomon and Yu argued that the California Bar Exam must be changed if it will be administered online.
“If they’re not going to waive the exam entirely because they think that some kind of accreditation exam is needed, I personally think that administering just the Performance Test portion of the Bar Exam would be the way to go,” Yu said. “This could be done ‘online,’ i.e., by giving us access to the Performance Test . . . and having us type up and submit an answer within a short period of time.”
Solomon proposed that California remove the closed-book multiple choice section of the bar exam, and simply do the open-book essay and performance test exam online in September.
This proposition is very similar to Nevada’s plan, which consists of 8 one-hour essays and a performance test, according to the State Bar of Nevada.
Solomon and Yu both agree that just testing on the open-book portions of the bar exam alleviates some concerns about testing online and actually represents what the graduates will do as attorneys much more than the multiple choice section. Solomon explained that if California administers an online exam with the multiple choice portion, the state would need to come up with 200 multiple choice questions on short notice.
The two also said that by just administering the essay and performance test portions of the exam, the state can avoid the arduous task of creating an entirely new multiple choice section while also testing graduates on the skills they will need most as attorneys.
“The Performance Test is the portion of the Bar Exam that seems closest to what an attorney would actually be doing: analyzing a complicated scenario, gathering information from a file, and writing an analysis of the situation or making an argument,” Yu added.
This is also an opportunity to permanently change the California Bar Exam into a more accurate test that truly represents what graduates will do as attorneys. The closed-book multiple choice section of the bar exam has been criticized for being weighted too heavily and not as indicative of having the minimum competence necessary to practice law.
“It seems to me that most of the practice of law is itself ‘open-book’ anyway, so testing our ability to memorize tons of details in a broad swathe of practice areas seems fairly untethered to whether or not we would be good lawyers,” said Yu.
“There have been some broader reforms that have been advocated for the bar exam for some time now. And I think when something as earth shattering as the coronavirus pandemic happens, it’s a great opportunity to step back and think about some of the systems that we already have in place,” Bishop said.
Contact Sahil Venkatesan at sahiljv15 ‘at’ gmail.com