Washington Lawyer - November/December 2020 - 6

FROM OUR PRESIDENT

Tracey Salazar Photography

Reexamining
the Bar Exam
By Geoffrey M. Klineberg

t often surprises people to learn
that the D.C. Bar has almost
nothing to do with the D.C. bar
exam. It is the D.C. Court of Appeals
- more specifically, the court's
Committee on Admissions - that
is responsible for planning, administering, and grading the bar exam.
Only after successful applicants are sworn into
practice before the D.C. Court of Appeals does
the D.C. Bar enter the picture. The first substantive contact that most members have with the
Bar is taking the Mandatory Course on the D.C.
Rules of Professional Conduct and D.C. Practice,
now provided online and on-demand through
the Bar's Continuing Legal Education Program.
As with almost everything in 2020, the D.C. bar
exam was completely upended by the COVID-19
pandemic. The Court of Appeals canceled the
July exam, realizing that there was no practical
way to administer the in-person exam safely.
Instead, the court chose to schedule an online,
remote bar exam over two days in early October.
The remote bar exam included questions
prepared by the National Conference of Bar
Examiners and tested the same topics as the
Uniform Bar Examination (UBE). While the
remote bar exam will not count as the UBE,
therefore not providing a portable UBE score,
the Committee on Admissions has reached
reciprocity agreements with a number of states.
In light of the uncertainty and likely delay
in grading the results, a number of groups
petitioned the Court of Appeals to consider
authorizing some form of "diploma privilege,"
which would permit law school graduates
(under certain conditions) to practice law
without having to pass the test. The ABA has
advocated that "[g]ranting a diploma privilege or

WASHINGTON LAWYER

admission through supervised practice to 2020
graduates of ABA-accredited law schools will
provide an immediate and permanent pathway
to this cadre of young people and enable them
to pursue their careers without the serious
impediments that come from a bar exam
administered either in-person (soon or at an
uncertain later date) or remotely."
Whether the bar exam has ever been an appropriate measure of attorney competence is a
question that has been debated for as long as
the test has existed. All of us who have taken the
exam recognize that the skills that matter most
in the practice of law seem to have little to do
with the material actually tested. More perniciously, there have been powerful arguments
suggesting that, as a gatekeeper to the profession, the bar exam has had a significant discriminatory impact. We lawyers have a duty to study,
engage, and rectify systemic discrimination
wherever it may lie, and the bar exam unquestionably deserves our attention. In addressing
the need to protect the public from incompetent representation, we must ensure that we are
fairly and appropriately evaluating competence
in the first place.
Although it's important to consider the longterm future of the bar exam, the pandemic has
presented our Court of Appeals with a problem
that requires an immediate solution: What is to
be done now for those law school graduates
seeking to start their careers as lawyers, given
the uncertainty and delays associated with this
year's test? If everything goes as planned, applicants should receive the results of the October
remote exam in January or early February. This
would only be a delay of a few months from the
usual schedule that has the results of the July
exam available in November. But there may well
be issues with scoring this unprecedented exam
and evaluating the complete applications; notwithstanding the fact that the Committee on
Admissions comprises some extraordinary
and dedicated public servants, it is probably

NOVEMBER/DECEMBER 2020

unrealistic to assume that this new process will
work flawlessly.
It is for this reason that the D.C. Bar proposed
that the Court of Appeals consider adopting a
limited licensing program that would authorize
applicants who take certain specified bar exams
- the October 2020 remote D.C. bar exam, a
UBE administered in another jurisdiction, or a bar
exam administered by a jurisdiction with which
the Committee on Admissions has reached a
reciprocal agreement - to practice under the
supervision of a licensed D.C. Bar member in
good standing. The supervised practice would
continue until the applicant receives the results
of the bar exam and is thereafter either successfully sworn in as a member or required to
reapply. An advantage of this solution is that it
builds on an existing exception: The court's rules
already authorize applicants awaiting bar exam
results to provide pro bono legal services, so
long as they are actively supervised by a D.C. Bar
member in good standing.
Taking a different approach than the one recommended by the D.C. Bar, the court adopted two
new rules: (1) authorizing emergency temporary
practice under supervision until the next inperson bar exam is offered, and (2) providing for
permanent membership with supervision over
a number of years. As the court explained, its
approach reflects its "best effort to address the
COVID-19 pandemic by balancing the competing interests at stake" - namely, the practical needs of most applicants and the court's
responsibility to the public to ensure, as much
as possible, that those who are authorized to
practice law are competent to do so. As with so
much during this pandemic, the bar admissions
process is in uncharted territory.

Connect with Geoff at gklineberg@dcbar.org.

Washington Lawyer - November/December 2020

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