Borrowing from the late Kenny Rogers, sometimes you’ve got to know when to fold ’em.
Last week, the NYSBA participated in a call designed to provide comfort to emergency diploma privilege advocates that the upcoming online bar exam will not be the unmitigated disaster that everyone following the administration of online exams so far in 2020 suspects it will be. During the call, the NYSBA, which performs a supporting role in the process run by the Board of Legal Examiner listened as the Executive Director of BOLE based his confidence in the upcoming two-day online exam on a smaller, non-proctored, offline test before throwing shade on the online testing guru who declared the exam infeasible and wrapping up by demonstrating that he didn’t even know the techniques used to pass the test he’s running.
This would be the time to fold. The NYSBA decided to raise.
In a letter to representatives of the New York State Law Graduate Coalition & United for Diploma Privilege New York, NYSBA President Scott Karson responded with his takeaway from the meeting. The stakes for this letter were reasonably high because in a world of declining bar association membership, the diploma privilege advocates had proposed a boycott of the NYSBA if it failed to use its position of authority to advocate for a better emergency plan.
The letter is six paragraphs long and the first four — taking up the entire first page — say nothing about the bar exam other than mentioning that the meeting happened and instead outlines how big the NYSBA is and how much it’s tried to convince people to hire graduates left in the cold by the coronavirus. When the first two-thirds of a letter is spent avoiding the point, it’s a red flag to the reader that something is amiss. Bringing us to the first — and only — actually responsive paragraph:
As I said during our discussion, I feel very strongly that the chaos created by the virus cannot be allowed to undermine the vital protections of the public interest provided by ensuring that lawyers licensed in New York are competent to serve. This is particularly important for clients who are members of vulnerable communities and have little or no familiarity with the reputations of lawyers and law firms. These clients rely on the license as proof of an attorney’s competence and ability to represent them fully and fairly.
This of course glosses over the most important issue, which is that there’s no reason to believe this exam will even work! The “vital protections of the public interest” are already compromised when half the examinees can’t log in and because no one can take notes on fact patterns (because what lawyers use pens or paper anyway?) the test loses all semblance of order. The discussion on the table is no longer between the time-tested bar exam and diploma privilege, it’s between diploma privilege and a system that’s meant to give a test in about a month that hasn’t gotten through a test unscathed yet.
It’s also a problem that “vital protections of the public interest” is a hollow defense of the bar exam as a concept. We have hard data that the existence of an exam has no discernible impact on the public’s safety. And while that’s enough to raise questions about the exam in ordinary times, as the first page of the letter lays out in detail, these aren’t ordinary times. Going forward with a woefully compromised test without a compelling justification is just foolhardy. Buzzwords just don’t cut it.
And citing vulnerable communities? The people ripping off these communities now are all licensed. The access to justice gap in New York is staggering and the NYSBA itself expects it to get even worse in the rural areas of the state. If the bar exam isn’t protecting them now and reduces the number of available attorneys to meet the need, it’s hardly a ringing endorsement for pushing ahead with it during a pandemic. Deploying this “widows and orphans” rhetoric to appeal to pathos has a hallowed place in trial advocacy, but in a showdown of written work, it falls flat.
The NYSBA tweeted out its letter listing the applicants who raised the issue. It appears as though they’ve since deleted the tweet. Whether it was intended or not, that certainly gave the appearance of trying to publicize the “troublemakers” in some sort of effort to chill others from raising issues with the current half-cocked bar exam plan.
Not exactly the look the NYSBA wants if it’s trying to avoid a boycott.
Earlier: Bar Examiner Offers Less Than Inspiring Answers In Online Exam Defense
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.