Unprecedented: Massachusetts to Offer Its Own Online Bar Exam—If Necessary—Amid COVID-19

Massachusetts will create and deliver its own online bar exam if it’s unsafe to administer the traditional test in late September—the rescheduled date for the July exam.

The Massachusetts Supreme Judicial Court and the Massachusetts Board of Bar Examiners unveiled those plans Thursday, making it the first jurisdiction to commit to an online test as a fallback amid the COVID-19 outbreak.

The National Conference of Bar Examiners, which develops the traditional bar exam, has said it’s examining whether its test can be administered remotely. Conference president Judith Gundersen said Friday that there are “significant issues” with delivering a two-day, high-stakes exam remotely, including security.

“We remain committed to assisting the [Massachusetts] court and the board by providing exam materials should the court determine that it’s safe to go forward with an administration of the Uniform Bar Exam in the fall,” Gundersen said. “We understand that any alternative exam developed by the [Massachusetts Board of Bar Examiners] would allow local admission only.”

The steps Massachusetts is taking demonstrate the complications that the pandemic has created in the ability of upcoming law graduates to become licensed. Other jurisdictions are grappling with the issue and are weighing a variety of options.

The Massachusetts Supreme Judicial Court offered few details of what an online bar exam would look like, but stipulated that such a test would enable admission only in Massachusetts. By contrast, the Uniform Bar Exam, which Massachusetts uses under normal circumstances, paves the way for admissions to more than 30 other jurisdictions. But committing to an online test—even one limiting takers to admission in one state—is meant to offer some certainty to graduating law students who fear the July bar exam will be postponed repeatedly if the pandemic stretches on.

“We understand that this is a terrible time to graduate from law school, given the likelihood of a deep recession (or worse), the uncertainties as to how and when the pandemic will end, and the challenges of practicing law, training new lawyers, and conducting justice virtually,” wrote Chief Justice Ralph Gants in a Wednesday letter to the state’s law deans. “The Justices and the [Board of Bar Examiners] will continue to work closely with you to attempt to diminish the impact of the pandemic on recent law graduates, consistent with our obligations regarding the practice of law and the protection of the public.”

Jurisdictions are taking various approaches to the July bar exam. Many—mostly in smaller or more rural states—have said they still intend to administer the exam on the planned July 28 and 29 date. Others, including Massachusetts, New York and Georgia, have said they will offer the exam on one of two new dates added by the national conference, on Sept. 9 and 10 or Sept. 30 and Oct. 1.

A growing number have also extended supervised practice provisions that allow law students to practice under the supervision of a licensed attorney. And Utah this week became the first jurisdiction to adopt an emergency diploma privilege that will enable law graduates to be admitted to the state bar with taking the bar exam, provided they perform 360 hours of supervised legal work by year’s end.

The Massachusetts Supreme Court ultimately decided against an emergency diploma privilege or an extended supervised practice program because the state’s first-time pass rate has hovered around 81% for the past three years, Gants wrote. That would likely mean that roughly one out of every five new lawyers might start practicing under supervision, then lose their privilege to practice if they must later take the bar, he wrote.

“Not only would this raise justifiable concerns about their competence to practice law when they were doing so, but it also would create the problem of nascent law practices having suddenly to close shop, potentially leaving clients in the lurch,” reads Gants’ letter.

Moreover, it’s not clear how closely licensed attorneys will be able to supervise the work of new law graduates, given that such arrangements are likely to be virtual, he added.

Massachusetts was among the first states to announce that it would not hold the bar exam in July. It has moved the test to the Sept. 30-Oct. 1 date, and has asked law schools to assist with extra space and staffing for that test—indicating that plans call for a more disbursed or socially distanced examination than usual.

Regardless of whether the state offers the Uniform Bar Exam or a Massachusetts-only online test, the Massachusetts Board of Bar Examiners will expedite grading and character and fitness reviews, so candidates know by mid-December whether they will be admitted, according to Gants’ letter.