Online bar exam delay causing lawsuits, frustration

It’s not often you see a Chief Justice of a state Supreme Court apologize for making a mistake. But that’s exactly what recently happened in Florida after the Florida Board of Bar Examiners recommended cancelling an online bar exam just days before the test.

Florida had planned to hold an in-person bar exam in July, but an upsurge in COVID-19 cases led to the cancellation of the usual exam featuring a huge room packed with stressed-out test takers.

Then, with little warning, the August online bar exam was cancelled because of failures in the platform chosen for the test administration. The online bar exam in Florida is now set for October.

“Our court deeply regrets this additional delay in the administration of the bar exam,” said Chief Justice Charles Canady in an online video. “We recognize that for most aspiring lawyers, preparation for the exam is a matter of intense focus for an extended period of time. We also understand that a three month delay in licensure is a serious matter. Disruption in life that takes a financial toll and an emotion toll. And we know that for some applicants, such a delay will cause severe hardship. We acknowledge and accept the criticism that has been directed at the court and the Board of Bar Examiners. Our inability to offer the bar exam in August was a failure. We apologize for that failure.”

Florida is not alone

Florida is not the only state struggling with conducting bar exams in the age of coronavirus. Twenty states have managed to keep in-person exams. Texas cancelled its July exam and is hoping to give the test this month to examinees in individual hotel rooms. It will go to an online bar exam in October.

Michigan held an online bar exam in late July but ran into computer glitches. It, eventually, got the test completed. Most states have delayed their online bar exams until October.

Three states — Washington, Oregon and Utah — are allowing students with degrees from accredited law schools to enter the bar without taking the exam — so-called degree privilege. That’s actually how lawyers used to become lawyers. They got a degree and they hung out a shingle.

Degree privilege came to an end for the most part in the 1950’s. Bar exam advocates say it was to protect the quality of lawyers. Critics say it was to close off the legal profession to minorities and people of lesser means.

COVID-19 has brought that debate to the fore, again. Do you really have to take a grueling two-day exam to be a good lawyer? Or is there a better, fairer, more practical way to be accepted by the bar?

Miami attorney Matthew Dietz has filed a petition with the Florida Supreme Court asking that law school graduates be allowed to become lawyers after working for six months with a qualified law practice.

“You work for six months. You get signed off by a person who works in the practice. You do a diligent job and then you get your full ticket,” explained Dietz. “To the extent that somebody still wants to take the bar in February and not have to do the six months they can still feel free to do that. This is just a way that a person can get a job, health insurance, pay their loans, start their life.”

Included in Dietz’s petition are affidavits from 21 Florida law school graduates who describe, sometimes in excruciating detail, how the exam delays have torn their lives apart. They signed these affidavits with what seems to be the knowledge that speaking out could jeopardize their future in law.

Victoria Ann Arthington, a graduate of the University of Florida, Levin College of Law, writes, “All of my mentors from school and the legal field continue to remind me that (bar examiners) make character and fitness determinations and such a complaint could result in my application being denied.” Such fears are a recurring theme in the petition affidavits from law school graduates.

Delay takes a toll

But it’s the economic and emotional toll of the delays that graduates really want to impress upon the court.

Jessica Ramos graduated from Florida A&M University College of Law and had planned on taking the exam in July. Every delay, she writes in her affidavit, puts the house she and her future husband purchased in jeopardy.

“Due to COVID-19 impacts, my fiancé was placed on furlough in April, and continues to be furloughed with no indication of when he will be called back,” Ramos wrote. “We had expected that I would start working in October and all would be fine financially. However, now we are not sure how we will continue paying for food, much less our mortgage”

Cicely K. L. Hodges, a graduate of the University of Miami School of Law, wrote of not being able to work so she could devote her full-time efforts to studying for the exam that she never got to take in August – and starting the whole cycle over again.

“After waiting almost four months to take the bar exam, living on my friend’s dining room floor, and battling with unemployment as I was unable to work due to the hours I needed to devote to studying — or risk failing a test I knew I could not afford to take again — I had to choose to spend another two months without work, racking up more overdraft fees (currently at $600) or postpone to February 2021 — meaning I had wasted the previous four months and could have been applying to jobs and/or working.”

Jonathan Carver, another University of Miami School of Law graduate, said in his affidavit that the delays have really taken a mental toll.

“According to my parents, I have shown signs of depression such as oversleeping, mood swings, and I had my first panic attack since 2010 directly due to the examination changes and announcements by the Florida Board of Bar Examiners in August,” Carver wrote, adding, “I am deeply concerned about retaliation by the Court and for my character and fitness application, specifically for speaking out about these issues and my mental health.”

“You’re talking about folks that can’t get a job because they’re not going to get their results back until December,” Dietz said. “Not only are these folks without a job when they get out of law school, they have to wait six months. They have student loans from college and law school. They have living expenses. They don’t have health insurance. A lot of them have families. You are dealing in an untenable situation.”

The Florida Supreme Court is now offering a limited number of bar exam applicants the chance to do legal work for firms before they take the test. Dietz argues that’s a devil’s bargain.

“So you’re telling these folks who need to work, that need to find a permanent job, that you not only need to find a permanent job but you also have to study for the test which is going to determine if you’re going to get the job,” Dietz said. “Those who need to work, well, that may affect their ability to take the test. Those who don’t need to work, well, they’re just going to study and take another bar prep class. It has an incredible disparate impact.”

Dietz does not expect the Supreme Court to rule on his petition to temporarily allow graduates to substitute six months supervised work for taking the exam until after the October online bar exam is finished. But, he hopes they agree to the plan because he says the coronavirus is going to be generating a lot of legal cases in a real hurry.

“We are going to get a lot of litigation in Florida and a lot of the litigation we’re going to get are issues involving COVID,” said Dietz. “We’re going to get a ton of landlord-tenant stuff. We’re going to get a ton of debt issues. We’re going to get a ton of bankruptcies. And these are all issues that new lawyers could probably handle really well.”