D.C., California Grant Temporary Diploma Privilege as Troubled October Bar Exam Nears

By Joseph Fawbush, Esq. on September 25, 2020 | Last updated on August 10, 2021

The D.C. Court of Appeals has issued an emergency rule allowing recent law graduates affected by COVID-19 to practice law without passing the bar. The court declined to issue any widespread or lasting changes, however, writing that “now is not the time to decide whether to make long-term, sweeping changes to its bar-admission process." Those granted diploma privilege must still take and pass the bar exam at some point to retain their license.

Meanwhile, The California State Bar's Board of Trustees recently unveiled a plan to allow recent grads a provisional, two-year license. The California Supreme Court, similarly, declined to make any lasting changes to the state's bar exam. California did, however, lower the passing score for the exam.

The momentum to make significant changes to the bar exam continues in multiple states. State courts, the National Conference of Bar Examiners, and other licensure authorities have been resistant to such ideas, however. So far, diploma privilege is about as out-of-the-box as states are getting.

Bar Exam Problems Continue

As more jurisdictions have made concessions to practicing law in response to the pandemic, the troubles plaguing remote bar exams continue. In Florida, technology issues this past summer delayed the bar exam multiple times, frustrating recent graduates' attempts to get their careers started. Florida has not granted diploma privileges to graduates even on a temporary basis.

Florida is not alone. Nor, unfortunately, have problems been addressed. Mock exams have gone poorly, with ExamSoft refusing to address problems, according to the ABA Journal. In California, upcoming disabled test-takers are suing, alleging disability discrimination because they are being forced to take the bar exam in person, while most exam takers are able to do so remotely. California also delayed its bar exam this summer.

It has gotten to the point where the deans at 15 law schools in California asked earlier this month to have California administer the test with no remote proctoring. California declined to do so, however.

Maybe Now Is the Time?

With all due respect to the D.C. Court of Appeals, now may be the perfect time to revisit the long-running issues lawyers everywhere have with the bar exam. There is no correlation between, for example, ethical violations and the stringency of bar exam requirements. Oregon, Washington State, Utah, Louisiana, and now D.C. and California are allowing diploma privilege to at least some degree. It might be time to re-evaluate how necessary the bar exam truly is. Particularly if, as is looking likely, the upcoming October bar exam will suffer from significant technical obstacles.

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