Top Senate Democrat Urges Chief Judge to Seek Alternatives to In-Person Bar Exam

Dan Clark

• Published on July 14, 2020 • Last modified on July 16, 2020

State Senator Michael Gianaris — State Sen. Michael Gianaris (left)
File Photo

A top Democrat in the State Senate wants court officials in New York to explore alternative options to an in-person bar exam for prospective attorneys in September, citing concerns over the coronavirus.

Officials had already postponed the in-person bar exam from July to September, but Senate Deputy Majority Leader Michael Gianaris, D-Queens, says that’s not enough.

Gianaris, an attorney, wrote a letter this week to Chief Judge Janet DiFiore asking her to consider other options, including the possibility of administering the test online.

“Preparing for the bar exam is itself a stressful venture, made more intense by the threat of a global pandemic,” Gianaris wrote. “This further necessitates that test-taking conditions be as comfortable and safe as possible.”

The New York Board of Law Examiners has already acknowledged to prospective attorneys that the bar exam may be postponed again. The test, which is offered twice a year in New York, isn’t scheduled to be administered again until February 2021.

The bar exam is the last step for prospective attorneys in New York before they’re formally admitted to practice law. Without the exam, those individuals aren’t able to practice law to the fullest extent in New York, limiting their career opportunities in the meantime.

Gianaris wrote that delaying the exam again would have a negative financial impact on applicants.

“To again postpone the bar exam would be financially damaging for candidates who already have legal jobs paying a lower rate until bar exam passage,” Gianaris wrote. “Others may not be able to attain employment to begin with until they have taken and passed the exam.”

There are also special complications to the bar exam that the state should consider, Gianaris said. A number of applicants travel from other states to New York for the test, and under an executive order from Gov. Andrew Cuomo, they may have to self-quarantine for two weeks.

Under that order, individuals traveling from states with high coronavirus infection rates have to self-quarantine for at least 14 days. The state modifies that list regularly, but there’s no way of knowing which states will, or won’t, be on it days before the bar exam.

Applicants who want to withdraw from the bar exam have to do so by Wednesday, July 15th. If they choose to go ahead with the exam, but then can’t take it, they don’t get a refund. The application fee is $250.

Gianaris mentioned two alternatives that DiFiore could consider instead of an in-person bar exam. The first would be the possibility of an online version of the test, which is being offered in a handful of states this year.

The second would be a so-called “emergency diploma,” which would allow law school graduates to forgo the bar exam and instead be admitted to practice law if they’ve graduated from an accredited law school, and met certain qualifications.

State Sen. Brad Hoylman, a Democrat who chairs the Judiciary Committee, has introduced legislation that would allow emergency diploma privilege. The bill would require law school grads to pass a few preliminary exams to secure that option.

A spokesman for the state Office of Court Administration said they’re in receipt of Gianaris’ request, and that it’s under review.

Here's the full letter from Gianaris:

Hon. Janet DiFiore, Chief Judge

The New York Court of Appeals

20 Eagle Street

Albany, New York 12207

Dear Chief Judge DiFiore,

I write today in response to the Court of Appeals’ announcement that an in-person New York State Bar Exam will be held September 9-10, 2020. Though the Court of Appeals rightly decided to suspend the July examination out of concern for public safety in light of the coronavirus pandemic, just delaying an in-person exam to September poses a number of risks to test-takers. Preparing for the bar exam is itself a stressful venture, made more intense by the threat of a global pandemic. This further necessitates that test-taking conditions be as comfortable and safe as possible. For the following reasons, I urge the Court of Appeals to consider alternatives to an in-person exam in light of the current pandemic, and to take a more transparent approach with any future decisions regarding changes to the bar exam.

There is a real possibility, acknowledged by the New York Board of Law Examiners in an email to candidates on June 30th, that the September exam may again need to be postponed. With cases already spiking in multiple states across the country, we must be prepared for this eventuality. To again postpone the bar exam would be financially damaging for candidates who already have legal jobs paying a lower rate until bar exam passage. Others may not be able to attain employment to begin with until they have taken and passed the exam. Because there is so little information about the potential for the continued spread of COVID-19, another postponement of the July exam would push the test back a second time and be devastating for those waiting to take the exam.

Even if the spread of COVID-19 cases in New York remains manageable enough to make an in-person exam possible for September, there remains an immense public health risk to test-takers. Those taking the exam will have to sit in an indoor environment with numerous others. In the past, the July New York bar exam has attracted upwards of 10,000 people. Given that New York State is still hesitant to open large indoor spaces such as malls and gyms, any form of the test that requires test-takers to remain in one large indoor space is potentially hazardous. Further, those traveling to New York State from elsewhere, which typically consist of 30% of out-of-state law school graduates, not only pose a health risk to others, but also may first face an impractical mandatory quarantine for 14 days under Executive Order No. 205 before taking the exam in person. These considerations, paired with the fact that applicants choosing to withdraw from the exam must do so by July 15th to receive a fee credit and are not entitled to refunds, will force candidates to take unnecessary risks at a perilous time.

Other states have substituted other measures for an in-person exam. At least five states (Massachusetts, Michigan, Indiana, Louisiana, and Nevada) and Washington, D.C. will be offering online exams while Utah, Washington, and Oregon have agreed to grant “emergency diplomas” to certain law school graduates. Though the Task Force on the New York Bar Examination expressed reservations about these alternative methods, the risks associated with a further postponement or the holding an in-person exam in September 2020 are too great to be ignored.

I urge you to consider practical alternatives to holding an in-person September 2020 bar exam, and that you demonstrate transparency in subsequent decision-making regarding changes to the bar examination.