Cancel the Ohio Bar Exam and Adopt an Emergency Alternative Method for Licensure

Cancel the Ohio Bar Exam and Adopt an Emergency Alternative Method for Licensure

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Lindsey Self started this petition to The Supreme Court of Ohio and

As people who have been impacted by the COVID-19 global pandemic, we urge you to consider the following letter and cancel the Ohio Bar Examination scheduled for July 28-29, 2020. Rather than follow New York, Connecticut, and Massachusetts in postponing the bar examination, we ask you to consider an alternative method for licensure, including the issuance of emergency diploma privilege or the adoption of a supervised practice program.
 
The novel coronavirus COVID-19 has significantly impacted life in Ohio, closing schools, universities, and businesses. Medical experts estimate some restrictions will remain in place for at least eighteen months, while a vaccine is developed, tested, and administered.[i] Even if some of the less restrictive measures of social distancing are lifted, large gatherings will likely be prohibited for several months.
 
Under these circumstances, Ohio will be unable to administer the July 2020 bar exam in the customary manner without jeopardizing the health and safety of test takers, staff, and the general public. Still, the legal system depends on an influx of lawyers each year to provide for clients across the state.[ii]
 
Eleven law professors and education policy experts recognized this problem and recommended six alternatives for jurisdictions to consider: (1) postponing the bar exam; (2) administering the bar exam online; (3) administer the bar exam in small groups; (4) issue an emergency diploma privilege to graduates; (5) adopt an “emergency privilege-plus” program; or (6) adopt a supervised practice program.[iii] The first three alternatives are described but, ultimately, not recommended by the authors. We agree with their conclusion.
 
New York, Massachusetts, and Connecticut have chosen to postpone their bar exam to an undetermined date in the future. While this approach appears reasonable on its face, it ignores scientific models of COVID-19 that suggest several waves of infection are likely to occur.[iv] As restrictions are lifted throughout the summer, a second wave will likely hit in the fall and restrictions will be reimplemented. The nature of this pandemic makes it impossible to predict a time in 2020 when a traditional bar exam could be administered to a large group of people.
 
In respect to online testing methods, much of the practicability of this method depends on the National Conference of Bar Examiners ability to move the Uniform Bar Exam online. Regardless, relying on an online bar exam format ignores the inequities among students. Financial constraints, family obligations, and access to basic internet and technology create an environment for some students that would make an online bar exam format impossible. Recognizing these inequities, law schools throughout the state have changed their long-standing grading policies for the current semester.[v]
 
Administering the bar exam in small groups would be logistically challenging with the current restrictions on large gatherings but also ignores candidates with health risks and those who are or will become infected and will not be able to meet in group settings for some time. The time required to plan a small group administered exam, with the uncertainty of when and how severe an additional outbreak will be, creates the same concerns as a postponed traditional bar examination.
 
We agree with the authors of The Bar Exam and COVID-19: The Need for Immediate Action that the three alternatives described above are less than ideal alternatives, considering the circumstance. Instead, we urge you to consider the following alternatives in lieu of a traditional bar exam in July 2020:
 
(A) An emergency diploma privilege would license graduates of state schools without a bar exam. Wisconsin has successfully used a diploma privilege for some time.[vi] Mimicking Wisconsin’s approach, this option would allow graduates to practice only in the jurisdiction where they attended law school, which would be problematic for students who have accepted positions in other jurisdictions.

(B) An “emergency diploma privilege-plus” method is described in The Bar Exam and COVID-19: The Need for Immediate Action as an emergency diploma privilege with stronger eligibility requirements, including completion of online courses or an affidavit from an employer or supervisor attesting that the candidate possesses the knowledge and skill to practice law.[vii]

(C) A supervised practice rule would license graduates who complete 240 hours of supervised  legal work and submit an affidavit from a supervisor. Many jurisdictions already issue student licenses and allow advanced students to practice under the supervision of an attorney.[viii] This would allow Ohio to license candidates graduating from schools in any jurisdiction.
 
We urge the Court to consider cancellation of the July 2020 bar exam and the issuance of emergency diploma privilege, privilege-plus, or the adoption of a supervised practice program instead of postponing the bar exam to an undetermined or administering the exam online or in small groups. We thank you for your consideration.
 

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 [i] See, e.g., Neil M. Ferguson et al., Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-
19 Mortality and Healthcare Demand, https://spiral.imperial.ac.uk:8443/handle/10044/1/77482 (Mar. 16, 2020) (Dr. Amy Action, Ohio Department of Health Director, pointed to this study during a press conference).
[ii] See Claudia Angelos et al., The Bar Exam and COVID-19: The Need for Immediate Action, Center for Interdisciplinary Law and Policy Studies at the Moritz College of Law (Mar. 22, 2020).
[iii] See Angelos et al., supra note ii.
[iv] Ferguson et al., supra note i.
[v] See, e.g., Grading Policy Changes for Spring 2020, The Ohio State University Office of Academic Affairs, https://oaa.osu.edu/grading-policy-changes-spring-2020 (last visited Mar. 31, 2020); Jennifer Smola, Coronavirus: College Courses Move Online, Challenging Ohio’s Professors, Students, The Daily Record (Mar. 25, 2020 at 8:15am), https://www.the-daily-record.com/news/20200325/coronavirus-college-courses-move-online-challenging-ohiorsquos-professors-students/1
[vi] See Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 WIS. L. REV. 645 (2000).
[vii] Additional requirements are recommended in The Bar Exam and COVID-19: The Need for Immediate Action, Center for Interdisciplinary Law and Policy Studies at the Moritz College of Law (Mar. 22, 2020).
[viii] See Wallace J. Mlyniec & Haley D. Etchison, Conceptualizing Student Practice for the 21st Century: Educational and Ethical Considerations in Modernizing the District of Columbia Student Practice Rules, 28 GEO. J. LEGAL ETHICS 207 (2015).

 

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