In a world where we can accept that no one has perfect information, the best we can hope for is a little transparency. Keeping everything locked up behind closed doors offers that warm cocoon of perceived infallibility. No matter how bad, any decision can be sloughed off as a product of a process the critics “just don’t understand.” It’s a cheap copout but it’s a popular one.
So, as annoying as the message may be, New Hampshire deserves a lot of credit for laying it all out there when it comes to its Fall bar exam efforts.
New Hampshire is a relatively small jurisdiction and received 121 applications to take the upcoming September administration of the bar exam. At the moment, the powers-that-be feel as though they can safely squeeze 121 applicants into the space they’ve secured at the UNH Franklin Pierce School of Law. That’s the good news. The bad news is that given the constantly changing safety protocols out there, the general counsel of the New Hampshire Supreme Court Office of Bar Admissions is informing applicants that it’s unclear where the state will be in September and has advised everyone that seating is not guaranteed. Seats will be assigned based on the date the application was received — candidates will be informed of their number in the order, which is why it’s important to register now — and if folks miss out based on more stringent safety measures, they will be given priority seating for February.
And, worst of all, the state can’t be sure if an applicant’s seat is guaranteed until right up against exam time because the Supreme Court Office of Bar Admissions controls neither the coronavirus nor the public health reaction to it. Of course, this is no solace to applicants who are asked to pay for prep courses and cram for the bar exam in September and then asked to just hold that all in their heads until February. The state is at least allowing students, upon seeing where they stand in the “applications received” list to voluntarily opt out and get priority seating in February. If a law school graduate finds themselves at number 121, this is probably the safest bet.
It’s unpleasant, but what else are they supposed to do? Book more room? Bar examination officials aren’t sitting on the F-35 budget. Booking room outside of the state-supported law school is an expense and one that they recognize they may have to cancel at cost. They would also presumably need more proctors for such a plan. According to the email, the office in charge of all of this consists of two people trying their best under unpredictable conditions. Unfortunately, this outbreak is going to cause hardships.
It’s what’s so galling about the response from some law school deans at the prospect that their graduates might be automatically slated for the February exam in New York. The examiners in every state face unprecedented logistical challenges and, whether they’re willing to be open about it or not, recognize that there are no ideal solutions. But as people living outside of the ivory tower, bar examiners have to do what they can to get everyone through the process in an orderly manner. What no one needs are law school deans clutching their Gadsden flags and railing against the grave injustice of their graduates waiting a few months until there’s enough room to safely administer the exam. If anything, the New York plan has the advantage of letting everyone know as of May when they’ll be expected to take the test so they can book their prep courses accordingly. When the deans tried to posit a better solution than New York laid out, the fallback (in the rare instance that “pretend there’s no virus” wasn’t the proffered solution) was “do a random drawing” leaving everyone up in the air for a few more weeks while prep enrollment deadlines loom.
The correct solution in the face of all of these challenges is an online administration of the exam at minimum, guaranteeing that all applicants can take the test at the first opportunity. And if the NCBE refuses to bless these exams with its portability stamp, then states should draft limited reciprocity agreements. It seems as though Massachusetts, which is already considering an online exam that they write themselves, would be an ideal partner for New Hampshire in putting together a portable online exam for New England. Just a thought!
At maximum, states should explore a radical overhaul of licensing along the lines of a diploma privilege plus system that shifts the post-graduate requirements from a rehash of doctrinal knowledge toward practical skills and experience, but that would require more will than most states seem willing to muster. And in all events, these solutions would be above the pay grade of the officials struggling to figure out how to go forward with the traditional, in-person bar exam that they’ve been tasked with pulling off.
So until there’s some action up the chain, we’re left with imperfect solutions based on imperfect information being put together by admittedly fallible people just doing their best.
(Full email reproduced on the next page.)
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.