The COVID-19 pandemic is having a profound impact on our lives and the U.S. economy. Even from my vantage point as a first-year lawyer in the Dallas complex commercial litigation group of Weil, Gotshal & Manges LLP, I can testify that the legal profession – including future lawyers – is not immune to its impact.
Courthouses are closed and hearings are being conducted via group video software. Some firms are furloughing lawyers and staff, while others are reducing attorney pay.
While I am fortunate that my firm has not undertaken any of these measures, I know that is not the case for many others. Law students are exclusively taking online courses and most will have pass/fail rather than letter grades this semester. Summer clerkship programs, on-campus recruiting and fall semester start dates have been or may be affected.
Yet as I work from home, I have found myself thinking: “What if I had started my legal career in 2020 rather than 2019?” This prompted me to investigate the challenges facing those just one year behind me – the law school class of 2020.
Recent and soon-to-be law school graduates face great uncertainty as state boards of bar examiners determine the fate of the July 2020 bar exam. This includes the recent law students who intend to start their legal careers in Texas. On April 29, the Texas Supreme Court promulgated an Order regarding the July bar exam. Under the terms of the Order, the Texas BLE will offer the bar exam as scheduled on July 28-30. The exam will also be administered on September 9-11. The court’s Order can be found here.
Based upon the response to COVID-19 by other state boards of law examiners, as well as the National Conference of Bar Examiners, the Texas Supreme Court and the Texas BLE could have taken many different approaches when addressing the impact of COVID-19.
For example, on March 27, the New York State Board of Law Examiners canceled its July bar exam. Soon thereafter, NCBE set a May 5 deadline for a decision regarding the administration of the Universal Bar Exam. Deciding to act quickly despite the May deadline, the NCBE announced April 3 that it would offer the UBE on three dates: July 28-29, Sept. 9-10 and Sept. 30-Oct. 1. Similarly, in mid-April, the Supreme Court of Georgia postponed the July bar exam until September and also implemented provisional admission measures which would allow recent law school graduates who have not previously failed a bar exam to practice under a licensed attorney.
The Texas BLE had more options and flexibility than its counterparts in New York, Georgia, and the 32 other states and territories that administer the UBE, because Texas will not begin administering the UBE until February 2021.
Although the court Order maintains the July bar exam date, the Order suggests that the July exam may be cancelled based upon guidance from public health officials. With less than 90 days until the July bar exam, law school graduates or soon-to-be graduates will begin the process of preparing for the July bar exam with great uncertainty over whether it will take place as scheduled. Personally, this would have added to my pretest stress level.
What should the Texas BLE do? Of course, it can continue with its current plan and administer the July bar exam as scheduled. However, given the current rate of infection and confirmed cases in the United States and Texas, packing hundreds of recent law school graduates into a shared space may not be the best option for test takers – particularly since there is evidence COVID-19 can spread through ventilation systems.
Alternatively, Texas could keep the September bar exam date, following the NCBE and other states that have postponed the July exam until early or late September. By setting a September exam date, Texas is betting on a reduction in the infection rate and number of COVID-19 cases to occur by this fall. Although offering the September date in addition to or in the alternative may be more prudent than solely continuing the July 2020 setting, without a viable cure or treatment, maintaining the traditional bar exam setup with hundreds of takers in a large conference room – even in the fall – could still be deemed too risky from a health and safety perspective.
Finally, as a third option, the Texas BLE could add additional test dates beyond the July and early September options. The Texas BLE could offer the bar exam on a rolling basis over multiple dates in the fall in hopes to lower the number of test takers in the room at one time. This option, of course, would be subject to the protections the Texas BLE could put in place to protect the integrity and efficacy of the test. It would require the Texas BLE to not only develop multiple versions of the exam, but also to establish a system to determine which bar applicants would take the test on the designated dates and how the exam would be scored and weighed over multiple test dates.
What else could the Texas BLE do to provide recent graduates with practical experience and a much-needed income while the situation regarding COVID-19 remains in flux? For one, Texas could greatly reduce the number of would-be exam takers by extending diploma privilege to some or all of Texas’ nine law schools. The diploma privilege traditionally allows graduates of law schools designated by the state to gain admission to the bar upon a showing of good character and fitness. The diploma privilege would undoubtedly be the favored option for recent graduates.
Unfortunately, the Texas Supreme Court Order regarding COVID-19 did not include a provision that would allow certain law school graduates to gain admission to the Texas bar. Establishing a diploma privilege even if the effects of COVID-19 extend to the fall is unlikely, as the Task Force on the Texas Bar Examination, which recommended Texas’ implementation of the UBE in 2018, unanimously rejected Texas adopting the diploma privilege in May 2018. In contrast to Wisconsin – the only other state that has a diploma privilege – and its two law schools, Texas has nine law schools, each of which has varying degrees of success on the bar exam for first-time test takers.
The Texas Supreme Court Order regarding COVID-19 did extend the period in which unlicensed law school graduates can practice under a supervising attorney with a Temporary Trial Card. As noted in the Court’s Order, with public health officials still unsure of how long the effects of COVID-19 may last, encouraging recent graduates to apply for a Temporary Trial Card may be the safest path forward. Getting as many recent graduates as possible a Temporary Trial Card will allow soon-to-be lawyers to gain practical experience while, perhaps most importantly, providing future Texas attorneys with an income during these uncertain and unprecedented times.
In sum, the Texas BLE has considered multiple options to address the COVID-19 situation. In light of continuing developments, Texas should continue to weigh all available options, including those beyond the traditional bar exam process. Regardless of whether the Texas BLE cancels the July 2020 bar exam, one thing remains clear: The Texas bar and those seeking admission will not escape the impact of COVID-19.
Jenae Ward is a first-year litigation associate in Weil’s Dallas office. She was on a team that recently won a pro bono victory on behalf of migrant detainees.