Emergency court order allows Idaho law grads to take bar exam online amid COVID-19 fears
UPDATED (4:30 p.m., July 20): In an emergency order Monday, the Idaho Supreme Court decided to allow recent law graduates to take the bar exam online and extended the period in which graduates can be temporarily licensed to practice law.
The order comes after significant advocacy on the part of recent law graduates and law professors at the University of Idaho for an alternative to the scheduled in-person bar exam. The exam is set to be held July 28 and July 29 in Boise with over 100 students, despite a rising COVID-19 case count in Idaho.
The remote exam will be held Oct. 5 and Oct. 6. Those who take — and pass — the bar remotely will be licensed in Idaho only. Graduates hoping to practice law in other states must take the test in-person.
Under the court’s decision, graduates registered for the bar who choose to defer their exam can practice law under the supervision of a licensed attorney until Oct. 31, 2021, when their temporary license will expire. Graduates will then be able to sit for one of two exams scheduled for 2021.
In the order, the court neglected to grant “diploma privilege” to recent graduates, a step neighboring states such as Washington, Utah and Oregon have taken. Diploma privilege allows graduates to forgo the bar exam and begin practicing law in Idaho as licensed attorneys.
“The Idaho bar exam typically has a pass rate of approximately 70%. A diploma privilege program would mean approximately 30% of those who could not pass this basic hurdle of competency would be allowed to practice law,” Chief Justice Roger Burdick wrote. “We do not believe that granting diploma privilege under such circumstances upholds our duty to the citizens of Idaho.”
Here is the Idaho Statesman’s original reporting from July 18:
Courtney McQuain, a recent graduate of the University of Idaho College of Law, is not having a typical post-graduation summer. Hours most law school graduates spend holed up in their rooms studying for the Idaho bar — the exam lawyers must pass to practice professionally — have been replaced by the relentless work of caring for her three children, over whom she has sole custody.
When the law school moved all classes online in March, McQuain was forced to shift her regular study schedule to accommodate childcare responsibilities without the help of a nanny. Now, McQuain wakes up at 3 a.m. every morning to study before her children wake up, cramming intermittent study sessions in during the rest of the day.
On top of this, McQuain faces an additional challenge: She must choose between the future of her professional career and her family’s health. As per guidance from the state Supreme Court, Idaho is one of a small group of states in the country going forward with plans to hold the July bar exam in person. McQuain is worried that taking the test — currently set to be held in a Boise testing center with over 100 other graduates July 28 and 29 — will put her kids, two of whom have health conditions, in danger of contracting COVID-19.
“I don’t want a free pass at all,” McQuain said. “I just want a fair chance to demonstrate my competence that doesn’t require me to subject my own health or carry home a disease that could literally kill my children. So to put me in a situation where I’m choosing between employment that will help me support them, or taking this huge risk, has been really, really hard.”
While the Supreme Court has decided to allow law school graduates registered for the July exam to push their test to the next date offered in February, McQuain can’t afford to wait. A job she has lined up as an Ada County Prosecuting Attorney is conditional on her taking and passing the exam, plus her university health insurance expires in August. If she waits until February and contracts COVID-19 during the test, she will not be insured.
McQuain is one of many recent law school graduates protesting Idaho’s decision to hold the bar in person. While neighboring states such as Washington, Utah and Oregon have decided to grant graduates “diploma privilege” — allowing them to forgo the exam and begin practicing as licensed attorneys in light of concerns that COVID-19 may spread at in-person testing centers — Idaho is still planning on holding the exam in person.
Many graduates, such as Casey Parsons, are caught between financial pressure to take the bar and begin the jobs they have lined up, and concerns that they will contract COVID-19 at a testing center. Parsons is a first generation law student, and they say they’ve accumulated a significant amount of debt, and want to begin working as a licensed attorney as soon as possible.
“I really can’t work anywhere until I take the bar examination,” Parsons said. “I’m just troubled that the expectation is that we are to put our health on the line for a professional license.”
Advocacy for alternatives
On Friday, the court reviewed a letter signed by 21 law professors from the University of Idaho asking the court to grant diploma privilege to all graduates of the American Bar Association — accredited law schools who “satisfy Idaho’s character and fitness process and satisfactorily complete the MPRE.”
“Under normal circumstances, the goal of the bar exam is to determine whether new entrants to the bar have the minimum competency to practice law. Under present circumstances, however, the bar exam is unlikely to serve that function effectively,” the letter states.
As alternative reforms, the letter also proposes lowering the typical passing score for the exam — a measure taken by Oregon and Washington that the Court has rejected — shortening the test or offering it remotely. A remote exam has been prepared by the National Conference of Bar Examiners, but those who pass the exam remotely can only practice law in the jurisdiction in which they took the test.
Recent law graduates are also requesting that an additional test be offered in September.
In a Zoom conference July 16, registered July test takers pressed Maureen Braley, associate director of the Idaho State Bar, to explain why the bar was moving forward with plans to hold an in-person exam amid rising COVID-19 case counts around the state. Braley declined to support graduates’ calls to create an alternative to an in-person test.
“We can’t guarantee people’s safety, just like no one can guarantee people’s safety right now given the pandemic,” Braley said. “But we’re operating consistent with the protocols in place … I know there’s risk, just like there’s risk going to the grocery store right now.”
Exam Accommodations
The bar can’t guarantee that those who have COVID-19 but are asymptomatic won’t take the test, Braley said. The bar is also not requiring graduates to get tested for COVID-19 prior to taking the test.
While Braley said that public health officials and epidemiologists were aware of the plan to move forward with in-person testing, she said hospitals have not been consulted in developing the testing plan. In recent days, hospital officials have expressed concern that ICU beds at hospitals around the state are filling up as the COVID-19 case count rises.
There are 117 students registered to take the exam in Boise and 39 in Moscow as of July 16, according to Braley. Entry times to the test venues and lunchtimes will be staggered, and test takers will be placed in rooms with no more than 18 other graduates and desks spaced 6 feet apart, with one proctor per room. Test takers will have their temperatures taken when they arrive, according to Braley, and all those with over a 100.4 degree fever after two temperature checks will not be able to sit for the exam.
Masks are mandated for the entirety of the exam, though test takers will be allowed to request a mask exemption. The bar is asking that graduates avoid congregating before and after the test, and during breaks.
‘We’re caught in the middle’
Graduates see a statement from the state bar against in-person testing as crucial to swaying the Supreme Court’s decision. But Braley said the state bar operates as a neutral party at the court’s direction, and does not plan to advocate for any particular decision on holding the test in person.
Asked if the state bar would commit to issuing a statement in support of alternatives to an in-person exam to the court, Braley said, “We don’t advocate for any particular group. We give the test as a neutral party.”
But Supreme Court Chief Justice Roger Burdick has indicated in private correspondence with at least one student that he believes the state bar is in favor of holding the test in person, a position consistent with the court’s decision as it currently stands.
Parsons said they’ve been frustrated by discrepancies between the state bar and the court’s statements about whether the state bar has sway over the decision.
“There’s sort of this circular game going on where the Idaho State Bar is telling us that they’re deferring to the court, and the court is telling us that they’re only moving forward because they have the support of the Idaho State Bar,” Parsons said.
Kayleen Richter, another recent University of Idaho law school graduate, voiced a similar sentiment.
“The Supreme Court has said that they are deferring to the bar, and the bar says that they’re deferring to the Supreme Court and their hands are tied. And and so then we’re caught in the middle.”
Braley declined to comment. The court did not respond to the Statesman’s inquiry by press time.
New law graduates as untapped legal aid resource
While the American Bar Association plays no role in the decision of supreme courts or state bars to administer the test in person, Judy Perry Martinez, president of the American Bar Association, said that postponing bar exams protects law students and the public’s health in an April 7 press release. Martinez urged states to consider allowing graduates who haven’t taken the exam to engage in “limited practice of law under certain circumstances.”
The move would help combat an increase in legal needs among individuals and businesses during the pandemic, the release said. Parsons, who started a petition asking the Supreme Court to grant emergency diploma privilege to July test takers, supports this idea.
Parsons, who is interested in pursuing immigration and housing law, said that many of their colleagues are interested in public interest law as well — and granting diploma privilege would allow such graduates to help address the mounting need for legal defense among Idahoans.
McQuain and Richter also said they supported solutions where the recent graduates receive diploma privilege to temporarily train under the supervision of licensed attorneys.
Ultimately, many graduates are planning on taking the exam.
Even though the father of Richter’s fiance is immunocompromised and taking the test risks spreading COVID-19 to him, Richter feels she can’t abstain from taking the bar. She lost her job after the law school moved classes online, and the financial implications of staying home are too steep.
“It feels like we don’t have a choice,” Richter said. “Like I can’t not take this exam because then I won’t be licensed and then I’ve wasted hundreds of thousands of dollars.”
This story was originally published July 18, 2020 at 1:32 PM.