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Modified bar exam leaves bar examiners, law school grads split as Supreme Court mulls how to handle testing amid pandemic

Jacob Solis
Jacob Solis
Education
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Dozens of lawyers, law school graduates and other legal professionals inundated the state Supreme Court with more than 60 comments Monday ahead of a decision this week on whether plans for a modified bar exam will move ahead amid lingering technology and safety concerns. 

The court had already decided in May to modify the exam, eliminating the multiple choice Multistate Bar Exam and opting for a remote, essay-based test on the recommendation of the Nevada Board of Bar Examiners. 

The decision followed a nationwide push to adjust plans for administering the exam in the middle of a pandemic, with solutions ranging from keeping the exam in-person to ditching it

But just days before Nevada’s exam was set to happen, the test was pushed back by two weeks after defects emerged in a beta-test exam in Indiana being conducted by the same test vendor as Nevada, ILG technologies. 

According to a letter submitted to Chief Justice Kristina Pickering by board Chair Richard Trachok, those defects affected the login function of software being used by Indiana to monitor applicant screens by placing them in a virtual testing room, a process that would have allowed Indiana’s test to remain closed-book.

However, with Nevada opting for an open-book testing format, the board moved to abandon the specific login software that caused the issue, and Trachok told The Nevada Independent Monday that a new beta-test ran without issue. 

Still, the bug would not be the only technological hiccup to hit the nation’s bar exams as they seek pandemic-era solutions. At least a handful of applicants in Michigan were briefly locked out of their exam last week after its vendor, ExamSoft, was reportedly targeted by a “sophisticated attack” on the test’s login process. 

Throughout the summer, a number of law school graduates and some lawyers have argued that the state should abandon plans for a 2020 bar exam altogether, saying in part that the pandemic makes the administration of such a test impossible and that the test has acted as an unnecessary and often discriminatory barrier to the profession. 

Instead, opponents of the current plan have argued for the implementation of diploma privilege, a method by which graduates could secure a license to practice the law without passing the bar exam, so long as they are supervised by a licensed attorney and meet certain benchmarks.

Those opponents include the Las Vegas Latino Bar Association, which told members in an email Monday that diploma privilege was necessary “to maintain the quality and professionalism required of new Nevada practitioners, yet ameliorate the extraordinary circumstances presented by the COVID-19 pandemic.”

On Friday, a petition was filed by a 2020 graduate of the Boyd School of Law, Megan Ortiz, urging the court to reconsider diploma privilege as an emergency solution to the testing problem and slamming the use of a remote essay as “futile and insulting.”

“We have spent the entire summer studying and attempting to play by the rules,” Ortiz wrote. “We were prepared to take this exam. We have done the work and have suffered grave, collective personal injuries because of State Bar’s lack of care for our lives. We cannot continue to endure these stresses and anxieties to put our lives on hold.”

Ortiz’s petition, later interpreted as a motion by the court, was accompanied by a petition signed by more than 770 members of the public, including a number of members Boyd School of Law’s Class of 2020. 

However, any reversal on the issue would mark a major departure for the court, which said in May that it “fails to adequately protect the public against practitioners who have not established minimal competence.”

Though it was once commonplace in the late 19th and early 20th centuries, such a privilege is now relatively rare in the U.S. Only Wisconsin still utilizes the system on a permanent basis, while several other states adopted it as an emergency pandemic measure, including Utah, Washington, Oregon and Louisiana. 

While a technological error on the Supreme Court’s website prevented access to all 62 comments filed as of Monday evening, a review of more than a dozen of those comments showed a uniform consensus either in favor of diploma privilege or in opposition to the use of a remote software.

Those comments stand in contrast to public reception in May, which was largely mixed between those seeking diploma privilege and those who agreed with the compromise of an essay-based format.  

A decision on the test is expected sometime this week, as a deadline on the comment period for the issue is set for 12 p.m. on Wednesday. 

Correction, 8/4/20 at 8:04 a.m. - An earlier version of this article mistakenly referred to 800 signatories on a petition for diploma privilege as members of the class of 2020. There were, however, only 770 signatories, of which 2020 graduates made up just a small portion. We regret the error.

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