California High Court Delays State Bar Exam

SAN FRANCISCO (CN) — The California Supreme Court has postponed this year’s bar exam until Sept. 9, ordering the State Bar to “make every effort possible” to administer the test online.

The exam was originally set for July 28-29. But after a series of meetings both public and closed, the State Bar’s board of trustees recommended that the high court either postpone the test until the fall, or explore a provisional certification program under which graduates could start practicing law under the supervision of a licensed California attorney. 

The court went with the first option, saying in a letter to the board of trustees Monday that it considered letters and comments from law school deans, students, faculty and attorneys. 

The State Bar has until May 11 to submit to the court a plan for how to proceed with an online bar exam that can be proctored remotely. Registrants have until Sept. 8 to withdraw from the test with a full refund of their fees. 

“These adjustments recognize and will advance the manifest public interest in maintaining access to justice through competent and qualified legal services,” wrote Jorge Navarrete, head clerk of the Supreme Court, in a letter to the trustees.

The court’s letter also urged the State Bar to accelerate its grading process so examinees can have their test results by Dec. 31.

The decision comes as several states have delayed licensing exams until September, most notably New York, but also Vermont and New Hampshire. Georgia has also rescheduled its bar exam for September, but the Georgia Supreme Court is allowing graduates and attorneys licensed in other states to practice provisionally. 

The National Conference of Bar Examiners, which develops the test, has said it will announce on May 5 if a multi-state exam is feasible, but has begun initial plans to offer the exam in September.  The NCBE has not yet indicated what a two-day remote exam would look like, but there are security issues at play.

The latest update to its website says: “We don’t yet know what the months ahead will hold. NCBE is being proactive and continuing to explore solutions for as many scenarios as we can anticipate. We are consulting with outside testing, technology, and exam security experts to consider various options and alternative methods of testing if the traditional group setting must be canceled or modified.”

Erwin Chemerinsky, dean of Berkeley Law said in an email that he hopes an online exam can be successfully administered, but that he also supports a provisional licensing program for law graduates.

“I think it was inevitable and wise to postpone the July bar exam. I hope that they succeed in developing an online bar exam,” he said. “But the deans have been told by Judy Gunderson, executive director of the National Conference of Bar Examiners, that is unlikely to be ready so soon. I had hoped they would consider provisional licensing and am sorry that this was not mentioned.”

Chemerinsky was one of 20 deans who wrote to Chief Justice Tani Cantil-Sakauye at the end of March, asking that the court not cancel or delay the exam without considering “an alternative pathway for licensing new attorneys.”

The high court made no mention of allowing automatic admittance to the bar, and the State Bar did not recommend it. Law students have strongly advocated for diploma privilege, under which they could practice law without the requisite testing. It’s an alternative popularized in the early 19th century, and also invoked in California during World War II and after the 1906 earthquake that devastated San Francisco.

The Utah Supreme Court was the first state to grant temporary diploma privilege last week, with the caveat that law graduates do 360 hours of legal work under a state-licensed attorney by 2021. Chemerinksy instead supports provisional licensing, which does not involve permanent automatic admission to the bar.

Jake Pillard, a student at the University of the Pacific, McGeorge School of Law, said Monday that the California Supreme Court’s decision was hard to believe.

Pillard was one of hundreds of law students and graduates who signed a March 30 letter to the State Bar and Governor Gavin Newsom, requesting that diploma privilege be enacted in California.

“It’s so hard to believe they are doing an online exam.  It seems like it would be prone to cheating,” Pillard said Monday. “What’s preventing someone from standing up and going to the bathroom and then looking at an outline. Are we going to tell students they cannot use the bathroom? It’s just silly.”

He also fears losing internet access while taking the exam online in a rural area. During fire season last fall, PG&E cut off power for prolonged periods to most of Northern California.

“By September it will plenty dry outside, and if last year is any indication, I would expect PG&E to turn off the power again if it’s remotely windy,” he said.

Pillard said he was in favor of diploma privilege with an additional work requirement. 

The Supreme Court may change its mind if an online test proves unworkable. For now, it said the State Bar’s remote administration of the June 2020 first-year law students’ exam should be a guide for ensuring the September bar exam goes smoothly.

“The court will continue to explore other options as circumstances develop or change,” its letter says, adding, “The court remains committed to making an informed judgment concerning the future of the bar examination when the circumstances are appropriate.”

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