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By Giulia Schaub, Editor-in-Chief
Like all events in 2020, bar exams across the nation have been rescheduled, reformatted, and revamped to adhere to COVID-19 pandemic safety restrictions. Only 16 jurisdictions offered their July 2020 exam as originally planned, while other jurisdictions offered alternative dates for examinees, offered the exam remotely, or rescheduled the exam date altogether. [1]
In Pennsylvania, the bar exam is typically offered in February and July of every year. [2] However, several weeks before the July exam date, Pennsylvania Board of Law Examiners Chairman David Fine informed examinees that the exam would be postponed until September, in hopes that graduates would be able to take the test in-person at the time. [3] As health concerns stealthily remained as the September date approached, the Board opted to postpone the Pennsylvania exam dates to October 5th and 7th, while the Multistate Bar Exam (MBE) was offered on October 6th. Both were administered remotely. [4]
While 20 jurisdictions offered the July MBE exam remotely in October, other jurisdictions attempted to administer the exam as traditionally as possible. [5] According to The National Conference of Bar Examiners (NCBE), 23 jurisdictions offered the July exam on the original date in-person, while adhering to local and state health guidelines; eight jurisdictions offered the July exam in September, and three jurisdictions offered the July exam in October. [6]
As a result of many delays and changes in bar exam circumstances, law school graduates had to make major adjustments to the official start of their careers as attorneys. While Pennsylvania declined numerous requests [7] to join 17 other states offering temporary licensing or provisional bar admittance, the Commonwealth is one of 15 jurisdictions that permit graduates to practice temporarily under the supervision of a licensed attorney of that specific jurisdiction. [8] This option was only available to applicants that had applied for the July 2020 exam, had graduated from an ABA-accredited law school, and had not previously failed the bar exam or did not meet the character and fitness requirements according to the Board. [9] Under temporary supervised practice, graduates were permitted to counsel clients on legal issues, prepare documents for their supervising attorney to file in court, and participate in legal activities with their supervising attorney present. [10] Supervising attorneys must have been in practice for at least five years, were limited to two graduates to supervise at once, and assumed professional responsibility for their graduate(s). [11] This temporary supervised practice license will terminate on the date that the exam results are announced, or, if the graduate did not take the exam, the date on which they had intended to take the exam. [12]
Large firms in Pennsylvania have acted accordingly in postponing the start dates of first year associates to January. [13] This seems to be a pattern across the nation for graduates who cannot begin their careers under a temporary license, supervised practice, or diploma privilege, leaving many examinees without their anticipated income. [14] As the end date of the student loan freeze rapidly approaches, [15] recent graduates are finding themselves without the resources needed to begin the long process of paying off law school loans. [16] [17]
While a remote bar exam is new territory for both examinees and examiners, examinees reported a lack of clarity, security, and compassion from examiners in determining the nuances of remotely taking such a meaningful examination. Many jurisdictions used Examsoft, a software familiar to law students, to administer their exams. Unsurprisingly, examinees experienced similar technical difficulties during the required mock exam that frustrated them during their law school years, such as delayed uploads and unhelpful tech support. [18]
When asked about a contingency plan should the technology fail on exam day, the Pennsylvania Board of Law Examiners (PABOLE) stated that, when they used this software in the past, only one percent of examinees had technical issues. They neglected to note that previously, that one percent had the option to handwrite their exam. [19] While PABOLE set up a specific procedure for properly uploading exam answers and recordings of examinees, it failed to disclose what the remote-exam equivalent of an alternative handwritten exam would be. [20]
Examinees also felt that Examsoft lacked sufficient security, citing the use of part of their Social Security numbers as their passwords for the program and an influx of scammer third party emails containing their personal information just days after they had downloaded the software. [21] In a letter to Attorney General Josh Shapiro, examinees asked his office to investigate the company to prevent a catastrophic breach from occurring on exam day. [22] Although the investigation never took place, their fears were justified: a hacking incident caused Examsoft to crash for at least an hour during Michigan’s online exam in July. [23]
Months-long delays and remote testing aside, the ongoing global pandemic acted as a catalyst to expose other issues with the bar exam that have persisted for many years, ranging from the longstanding racial and socioeconomical disparity in passing rates to consistent failure in accommodating disabled examinees.
Diabetic examinees initially were pleased with the idea of a remote exam, so that they could easily access glucose monitors and other supplies during the hours-long exam. However, while the PABOLE permitted use of these supplies during the exam, it “strongly discouraged” diabetic examinees to consume food or drink during the exam or to leave monitors on their sound setting, as any of these acts would result in their exam being flagged and reviewed for misconduct. [24] Additionally, all examinees were forbidden from standing during the exam except for during designated breaks, which particularly affected pregnant examinees and others with conditions that require frequent movement. [25] Pregnant examinees who applied to take the July exam had expected to sit for a bar exam much earlier in their pregnancy, and so this issue was not something they had anticipated. [26]
Examinees also demonstrated frustration at the “callous” response from the PABOLE to questions about at-home testing conditions, particularly the sufficiency of their computers. [27] So that examinees could be monitored by proctors, exam computers were required to produce sufficient visual and audio recordings of examinees during the exam – something that has never been asked of examinees before. [28] If a device did not qualify, PABOLE advised examinees to purchase a new computer – a hefty expense amid a pandemic. [29] Examinees were also responsible for proper lighting in their exam space so that Examsoft’s facial recognition software could identify each examinee for security purposes. [30] During exam preparations, examinees of color were notified the software could not detect their faces, suggesting the software is racially biased. [31] As a solution, Examsoft suggested examinees of color shine a bright light directly on their faces during the entire exam. [32]
Several coalitions of students, professors, and attorneys alike are taking advantage of the spotlight on the pandemic bar exam to raise awareness of the above-mentioned issues in hopes of furthering change in future exams [33] [34] [35] , but judging by the difficulties all jurisdictions dealt with in making pandemic-related changes, they face a long uphill battle.
[1]Which States are Delaying the July 2020 Bar Exam and Offering a Fall Bar Exam Instead?, JD Advising,https://www.jdadvising.com/which-states-are-delaying-the-july-2020-bar-exam/ (last visited Nov. 22, 2020) (hereinafter States).
[2] Jeff Blumenthal, Pennsylvania Bar Exam delayed again; switching from in-person to remote, Philadelphia Business Journal, https://www.bizjournals.com/philadelphia/news/2020/07/09/pa-bar-exam-delayed-again.html (July 9, 2020).
[3] Id.
[4] Id.
[5] National Conference of Bar Examiners, 2020 Bar Exam Process Comes to an End: Approximately 38,000 Applicants Took Bar Exam in July, September, or October, https://www.ncbex.org/news/2020-bar-exam-process-comes-to-an-end-approximately-38000-applicants-took-bar-exam-in-july-september-or-october/ (Oct. 7, 2020).
[6] Id.
[7] Karen Sloan, Pa. Diploma Privilege Bill Is a Hail Mary Pass for Law Grads, The Legal Intelligencer, https://www.law.com/thelegalintelligencer/2020/09/24/pa-diploma-privilege-bill-is-a-hail-mary-pass-for-law-grads/ (Sept. 24, 2020).
[8] States, supra.
[9] The Disciplinary Board of the Supreme Court of Pennsylvania, Supreme Court Allows Temporary 2020 Limited Practice License, http://www.padisciplinaryboard.org/news-media/news-article/1265/supreme-court-allows-temporary-2020-limited-practice-license (May 6, 2020) (hereinafter Disciplinary).
[10] Id.
[11] Id.
[12] Disciplinary, supra.
[13] Id.
[14] Justine Re, The Delayed Bar Exam Leaves 2020 Law Graduates Struggling to Survive Financially, Spectrum News, https://www.ny1.com/nyc/all-boroughs/coronavirus-blog/2020/09/16/delayed-bar-exam-is-a-major-burden-on-law-graduates (Sept. 17, 2020) (hereinafter Delayed).
[15] Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic, https://www.whitehouse.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ (Aug. 8, 2020).
[16] Delayed, supra.
[17] Stacy Zaretsky, T14 Law School Grad Tells New York Times How Bar Exam Is Screwing Class Of 2020, Above the Law, https://abovethelaw.com/2020/09/t14-law-school-grad-tells-new-york-times-how-bar-exam-is-screwing-class-of-2020/ (Sept. 8, 2020).
[18] Tim Zubizarreta, The PA Bar Exam Is Doomed to Failure and the PABOLE is Fine with That, JURIST – Student Commentary, https://www.jurist.org/commentary/2020/09/tim-zubizaretta-pabole-failure/ (Sept. 20, 2020) (hereinafter Doomed).
[19] Id.
[20] Id.
[21] Matthew Santoni, Pa. AG Asked To Investigate Online Bar Exam Security, Law360, https://www.law360.com/illinois/articles/1308239/pa-ag-asked-to-investigate-online-bar-exam-security (Sept. 8, 2020).
[22] Id.
[23] David Jesse, Michigan online bar exam crashes in middle of testing; hacking attempt blamed, Detroit Free Press, https://www.freep.com/story/news/education/2020/07/28/michigan-online-bar-exam-crashes-test-examsoft/5526919002/ (July 28, 2020).
[24] Caitlyn Tallarico, For Our Convenience, Could You Suspend Being Diabetic During the PA Bar Exam?, JURIST – Professional Commentary, https://www.jurist.org/commentary/2020/09/caitlyn-tallarico-bar-medical/ (Sept. 8, 2020).
[25] October Online Bar Exams Spark Technology, Privacy Concerns, Bloomberg Law, https://news.bloomberglaw.com/us-law-week/october-online-bar-exams-spark-technology-privacy-concerns (Aug. 18, 2020).
[26] Id.
[27] Delayed, supra.
[28] Id.
[29] Id.
[30] Khari Johnson, ExamSoft’s remote bar exam sparks privacy and facial recognition concerns, VentureBeat, https://venturebeat.com/2020/09/29/examsofts-remote-bar-exam-sparks-privacy-and-facial-recognition-concerns/?utm_source=emBlue&utm_medium=email&utm_campaign=NL%20Octubre%202020&utm_content=35%20NL–Test%20de%20Turing%20en%20Reddit%20e%20IA%20para%20ex%C3%A1menes%20y%20detectar%20coqueteo&utm_term=multiple–7–none–80-90–ENVIO%20SIMPLE (Sept. 29, 2020).
[31] Id.
[32] Id.
[33] https://twitter.com/diplomaprivileg.
[34] https://twitter.com/DiplomaPriv4All.
[35] https://twitter.com/WOCLSD.
