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New York’s top judge is sticking with an online bar exam even as complaints of tech issues mount and other states let law grads skip the test and still practice law


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New York’s top judge is sticking with an online bar exam even as complaints of tech issues mount and other states let law grads skip the test and still practice law

Recent graduates and law school deans have pressed for states to let them practice law, possibly with limitations, without taking the bar exam. They’ve raised privacy concerns and complained of technical issues with test-taking software created by ExamSoft ahead of the exam, scheduled to start Oct. 5. California and the District of Columbia have temporarily…

  • Recent graduates and law school deans have pressed for states to let them practice law, possibly with limitations, without taking the bar exam.
  • They’ve raised privacy concerns and complained of technical issues with test-taking software created by ExamSoft ahead of the exam, scheduled to start Oct. 5.
  • California and the District of Columbia have temporarily waived the bar exam for certain recent graduates, but New York Chief Judge Janet DiFiore said this week that an exam is needed to protect the public.
  • Visit Business Insider’s homepage for more stories.

Courts in California and Washington, D.C., took steps this week to allow some recent law school graduates to practice law without taking the bar exam. But New York’s top judge told lawmakers on Tuesday that she still opposes such a measure.

Calls for “diploma privilege” have grown louder in recent weeks as the October bar exam — which, in many states, was delayed from July — draws closer. Sixteen jurisdictions, including New York and California, which historically have had the biggest number of test-takers in July, plan to offer the bar exam virtually over Oct. 5-6.

The District of Columbia’s top court said on Thursday that it would move forward with the virtual bar exam next month, but recent law school graduates could practice law under supervision of an experienced attorney without taking the bar exam in light of the “uncertainties and challenges” associated with the virtual test.

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Similarly, while the California Supreme Court rejected a petition for outright diploma privilege on Wednesday, the California State Bar’s Board of Trustees reportedly approved a proposal on Thursday that would allow recent graduates to act as “provisionally licensed lawyers” without taking the bar until 2022.

New York’s Chief Judge Janet DiFiore said as recently as Tuesday that she remained opposed to waiving recent graduates into the practice of law without a test. In a Sept. 22 letter to state lawmakers that hasn’t previously been reported, she said she backed the conclusions of a working group she created earlier this year whose members strongly recommended against the adoption of a diploma privilege.

“A diploma privilege, the Working Group noted, would not provide adequate assurance to the public that admitted attorneys have the requisite skills to practice law,” the letter said. “I agree with the Working Group’s conclusion and I too believe that adoption of a diploma privilege — even with the suggested requirement of two and a half weeks of supervised practice — would not provide the necessary assurance that admitted attorneys meet minimum competency requirements.”

Some student activists have raised concerns about software being used in the upcoming exam

The letter came in response to a letter from dozens of state lawmakers sent on Sept. 15 that asked Judge DiFiore to give recent graduates an “equitable and expedient path” to practicing law that wouldn’t require them to take the October bar exam.

The letter noted that many aspiring lawyers find themselves in dire straits, with many struggling to balance studying for the exam with parenting and other personal responsibilities and some of them facing delayed or revoked job offers. Legislation has been proposed that would create a pandemic-specific path to the practice of law, but it would require a special legislative session.

Tom, a recent law school graduate preparing to take the New York bar exam who didn’t want his last name being used because he said he feared retaliation, said the news of DiFiore’s letter was disheartening.

“In New York, we’re learning today that the prospect is kind of close to zero at this point,” he said, regarding the chances of a special session being called. “We’re really just looking for as reliable a testing experience as everyone who’s taken a bar before.”

Read more: Big Law may have dodged a catastrophe in 2020, but the next 6 months are critical. Law firm leaders predict how the rest of the year will play out.

Some student-activists have raised concerns about the software being used by many states, including California and New York, to administer the upcoming exam. ExamSoft’s Examplify software has long been used for in-person examinations, but the artificial intelligence-assisted proctoring product that makes use of a test-takers webcam and microphone to monitor them has drawn opposition from groups like the Electronic Frontier Foundation.

Despite Judge DiFiore’s recent letter, however, some are holding out hope that New York’s top court will act.

“If Washington D.C. can grant diploma privilege to recent law school graduates, so can New York,” New York State Sen. Brad Hoylman said in an emailed statement on Thursday. “New York’s online bar exam is in less than two weeks, but D.C. has proven there is still time.”

You can read Judge DiFiore’s full letter here.

Correction 9/25/20: A previous version of this story misstated a detail of a new D.C. diploma privilege rule. The error has been corrected.

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