Please ensure Javascript is enabled for purposes of website accessibility

Editorial Advisory Board: Dealing with a COVID-19 bar exam

Unless you are a recent law school grad preparing to take (and pass) the examination prerequisites to practice law in Maryland, the information in this editorial likely will be news to you.

It was news to many members of this editorial board – all of whom are relieved that their bar exam days are behind them. The bad news is that Maryland’s current COVID-19 impacted bar examination plan for 2020 seems likely to create substantial unintended hardships for those facing those exams. The good news is that a viable solution, known as “Diploma Privilege Plus” and already adopted in several other states, appears to exist.

Before getting into the details, a brief recap of Maryland’s current bar examination elements may be helpful. Today, to be admitted to the Maryland bar an applicant must take and pass three separate exams:

  1. The MPRE (Multistate Professional Responsibility Exam).  Prepared by the National Conference of Bar Examiners (NCBE) the nonprofit corporation that drafts the Uniform Bar Exam (UBE), the MPRE is an in-person exam given three or four times a year. Students often take this exam during the summer after their second year of law school.
  2. The Maryland Law Exam. This exam is administered by the Maryland State Board of Law Examiners.  It is a substantive exam on Maryland law: contracts, torts, property, evidence, procedure, estates and trusts. While it is an on-line exam, open book, it is not easy.

Test takers only have 1.5 hours in which to take it and must get at least 80% to pass.  You can take it as often as you want (the questions are different each time you take it). We are told that students who do not study the substantive law materials given to applicants before the exam often fail it.

  1. The Uniform Bar Exam (UBE).  This is the exam that Maryland adopted in 2019 as a replacement for the two-day Maryland essay exam and multistate exam. The NCBE prepares this exam, given twice a year, typically in February and July.Until now, it has been a two day, 208-question, in-person exam.

The articulated justification for the UBE is that applicants who pass it can be admitted into practice in any of the other 30-plus states that grant reciprocity for applicants from other states whose scores are above a threshold cutoff point.

So, for example, a graduate of the University of Maryland Francis King Carey School of Law or the University of Baltimore School of Law who took and passed the UBE in Maryland could be admitted into practice in New York, as the two states have the same minimum passing score number. But, there is a catch — to get admitted in New York, you would still have to take and pass their version of the substantive state law exam, comparable to No. 2 above.

This year, in an effort to deal with the COVID-19 pandemic, the Court of Appeals, following recommendations from Maryland’s Board of Law Examiners, first moved the dates for the UBE exam from July to September. Then, in June, the court announced that the UBE exam would be postponed further, to Oct. 5-6, and – for the first time ever – would be an online, two-day exam with only half the number of questions usually asked on the UBE.

The potential damage

The harm in this seems considerable. A collective of Maryland Bar applicants has formed under the name Diploma Privilege for Maryland (DP4MD) and created a website (https://www.dp4md.com) to advocate for a change that would lessen this harm.

The group notes  that, absent new reciprocity agreements with Maryland (thus far only in place with D.C., Massachusetts, New Jersey, Tennessee and Kentucky), students who pass this version of the UBE will  be unable to transfer their scores to other states, thus defeating the very purpose of the move to the UBE that Maryland implemented in 2019.

There are other problems. With the exam to be taken at home, all sorts of complicating factors can be readily envisioned. So far as we are aware, Maryland has never before had a virtual, online, at-home, bar exam. With a system untested for security and robustness of platform, what could go wrong?

It appears there is a better way to deal with this. As suggested to us by a leader of the DP4MD advocacy group, Gia Grimm:

The Court of Appeals could waive the Md. Rule 19-201(a)(3) requirement for all July 2020 Maryland Bar applicants. Waiving the UBE requirement does not mean Bar applicants waltz into practice unchecked. Bar applicants must still have (1) completed the prelegal education requirements for admission to a law school approved by the American Bar Association; (2) graduated with a juris doctor or equivalent degree from a law school located in a state and approved by the ABA; (3) achieved a qualifying MPRE score; (4) successfully completed the Maryland Law Component of the admission requirements; and (5) established good moral character and fitness for admission to the Bar.

In place of the UBE, the Court of Appeals could also consider requiring applicants to complete CLE learning hours or a number of supervised attorney hours.

Although some of us would favor abolishing the bar exam entirely, we all join in urging the Court of Appeals and the Board of Law Examiners to adopt this course of action.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.