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Lawyers and many other professionals know that the bar exam is one of the most difficult and unpleasant experiences in professional and academic life. It normally takes at least 12 weeks of 60 to 70 hours per week of intense preparation and “cramming” of a great deal of largely irrelevant material, with the failure rate exceeding 15%. This is not a pleasant or even livable experience for many who take it, and the economic pressure to pass in order to be employable, coupled with the need to do so to avoid having to wait for months to cram again to be retested, is substantial.
The problem is apparently caused by a software company that cannot do what it was contracted to do, which seems very surprising given that the bar exam is not a complicated or innovative data challenge. According to the website of the software company, they have received positive testimonials on their product going back as far as 2016, so it is somewhat of a mystery as to why all of this has to be happening to tens of thousands of young law graduates throughout the country. Couldn’t a company like Google
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This new lag is exacerbated by news of last minute announcements, decisions, and statements that many candidates have found to be offensive, and less than commendable, yet they are afraid to comment on this, as further explained below. Hopefully the Florida Bar, which is now over 100,000 strong can take action to ameliorate the situation.
Every state postponed their July bar exam to accommodate the increasing concern over Covid-19. Many states, such as Texas and Alaska, pushed the exam back until early September or later, while other states like Louisiana and Utah offered a diploma privilege option to allow recent law school graduates to practice for a period of months before needing to pass the exam. You can see how your state is handling this by clicking HERE.
Florida, which normally accommodates the thousands of test takers at the Tampa Convention Center, announced on May 5th that they were splitting the graduates between two testing centers for the July exam. Orlando was added as a second center, and the assignment of locations was based upon the new lawyers’ preferences and practicality.
This Orlando plan was short-lived, however, as many students were informed by hotels that they could not be accommodated there. This left many students still studying for a 2-day bar exam in Orlando, but nowhere to stay.
Then, on July 1, only 27 days before the bar exam was originally set to take place, the Florida Board of Bar Examiners (FBBE) moved the exam date to August 18, 2020 as an online 1-day test in lieu of the historical 2-day test. This news was met with backlash because August 18 is the day of primary elections in Florida. In response to this the FBBE moved the exam back to August 19th.
Traditionally, states offer their bar exams in 2 parts over 2 grueling consecutive days. The first day is a test of state-specific law, while the second day consists of the multi-state bar examination (“MBE”) which is issued by the National Conference of Bar Examiners. The MBE is meant to test laws applicable to all jurisdictions.
The newly announced online exam would not contain the MBE. This means that one half of the studying that had been done by those preparing to take the test would not be used on the exam. Additionally, the FBBE announced that graduates who had previously passed one portion (either state-specific or MBE) of the exam in the past would have to pass this new consolidated exam to be considered “technically competent.”
Another significant change was that the exam was now to be an online exam to be taken from a place with secure internet and with a webcam, without traditional proctoring.
These Bar candidates who had signed up to take the 2-day exam were also now required to pay a laptop fee, which had only been required before for new lawyers who elected to take the exam on a computer rather than with pen and paper during the 2 day event.
The software that was to be used in Florida and many other states apparently has had glaring issues throughout the country, and was somehow causing computers to crash, have performance lags, and even security breaches. To read more about what has been posted with respect to the preliminary issues with the ILG Software, click HERE. An employee of my law firm knows over 20 individuals who had problems with preliminary downloading of the exam software.
With everything mentioned above, it should come as no surprise that the exam was pushed back even farther, but it was shocking to many that the new date will be sometime in October. This leaves these applicants without the ability to be employed as licensed lawyers for an extra 2 months, or longer, and the subsequent insecurity and lack of income that comes with this. Law firms normally don’t hire a lawyer who has not passed the bar for fear that they may not pass, a non-bar member cannot practice law even with supervision, and must therefore do clerical work or research that is lower paid; if they can even find a firm or employer that needs this on a temporary basis.
The 11pm Sunday e-mail indicated that, “[t]he board remains committed to offering an examination to applicants in 2020 and will reschedule the examination for a date to be determined in October (emphasis added).”
The MBE is administered by the National Conference of Bar Examiners. This board published a white paper on April 9th, 2020 arguing against the implementation of temporary diploma privileges for those who are delayed in this mess. Such a privilege, according to the NCBE, would “create inconsistency in the qualifications of new lawyers (dependent on which school they attended) and introduce subjectivity into the standards for minimal competence to serve the public[.]”
Many in the legal community, including graduates, law school deans, and attorneys in the field strongly disagree, as some have pointed out that the NCBE President Judith Gundersen herself apparently became licensed through the diploma privilege rules of the State of Wisconsin when she was admitted to the Bar in 1987.
Ms. Gundersen reportedly spoke about the situation on a panel at University of Miami Law School’s “Power, Privilege, and Transformation: Lessons from the Pandemic for Online Legal Education” on August 5, 2020. On this panel, she commented that during this time of uncertainty, she and other NCBE officials had been “the subject of extreme lack of civility and professionalism and in some cases, conduct that borders on harassment. Character and fitness issues are arising in the way examinees are communicating with Board staff and Board volunteers.” Many candidates have expressed concern that if they raise their voices to complain about the situation they may be singled out, investigated and further delayed.
Of further concern to candidates is the possibility that a purported screenshot from LinkedIn appears to show that a particular gentleman, allegedly an executive for ILG Technologies (the company behind the ILG Software) has also served as the Director of Administration for the FBBE prior to going to work for the Missouri Board of Law Examiners before accepting his apparent current role with ILG Software. Hopefully the FBBE will disclose whatever is proper, including whether there is any direct financial relationship between the FBBE and this individual.
This pandemic has not been easy on anyone, and most certainly those continuously trying to take the bar examination when it does eventually happen. As one new graduate and tentative bar taker said “[u]nfortunately, this decision has placed many new lawyers in a very tough situation financially and mentally. We as a class are struggling to once again ask our employers for an extension in our start dates.”
A promising piece of news to come out of this difficult situation is that that the FBBE is considering implementation of a “Supervised Practice” program that would allow graduates to begin practicing law as long as they are under the supervision of a licensed member of the Florida Bar. This would help hundreds of these new lawyers to enter the workforce and help others, while gaining experience and income.
It is unclear how all of this has happened when so many well-qualified and well-meaning individuals and organizations have been involved. Hopefully steps will be taken to help these new lawyers make the best use of their time and talents until a bar exam can be conducted. It is clear to me that the Florida Bar is made up of very well meaning and talented individuals who far outnumber these unfortunate new graduates and have the opportunity to help them in a number of ways, especially by offering temporary employment and similar experiences during this trying time. But for now we have many disappointed young professionals who will never forget this experience and how they got to where they are today.
I will be hiring two new graduates stuck in the bar exam limbo through October. If you’re in the Tampa/Clearwater area, send your resume to agassman@gassmanpa.com.