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Carroll County delegate pens letter rejecting proposal to not require bar exam during pandemic

A Carroll County delegate and practicing attorney is among a small group of elected officials pushing back against an effort to, in light of the coronavirus pandemic, waive the bar exam for recent law school graduates to enter the profession.

Del. Haven Shoemaker, R-5, authored a letter Tuesday, signed by four of his colleagues in the Maryland General Assembly, to Chief Judge Mary Ellen Barbera and associate judges of the Maryland Court of Appeals in response to an Aug. 13 letter sent by 25 other General Assembly members.

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The Aug. 13 letter urged the Maryland Judiciary to “consider permitting bar applicants to forgo the bar exam and immediately enter the profession.” The authors of the letter called this practice “diploma privilege” and argued lawyers are badly needed during the pandemic, when it is unsafe to administer the Maryland bar in person.

Maryland courts have already delayed the two-day bar exam, which is usually scheduled in July, until Oct. 5-6. Diploma privilege existed in Wisconsin prior to the pandemic and has since been temporarily adopted in other states, including Washington state, Utah and Louisiana.

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The Maryland Court of Appeals announced Thursday that it will accept public comment on the board’s statement before making a final determination. Comments must be submitted to the court by Monday at 4:30 p.m. to be considered.

Shoemaker, who took the exam in 1992, suggested in his letter that the bar gives credibility to attorneys and that clients “deserve to have confidence that their attorney possesses some level of legal acumen associated with admission to the Bar.” The letter was signed by Shoemaker, Del. Jason Buckel of Allegany County — who assisted with the letter, Shoemaker said — Del. Daniel Cox of Carroll and Frederick counties; Del. Susan McComas of Harford County; and Sen. Chris West of Baltimore County. They have all worked as attorneys and are all Republicans.

The letter containing signatures from 22 delegates and three state senators in favor of the waiver stated that graduates of Maryland’s law schools and potential clients are suffering during the pandemic. Job opportunities have dwindled or were rescinded, while struggling residents face eviction or debt collection proceedings without legal counsel, the letter reads.

Maryland’s State Board of Law Examiners also said, on Thursday, that it believes prospective attorneys should take the bar exam remotely in October.

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Maryland law school deans and graduates support a temporary waiver. Applicants to the bar filed a petition July 31 with the Court of Appeals to request a waiver. Deans Donald Tobin of the University of Maryland’s Francis King Carey School of Law and Ronald Weich of the University of Baltimore School of Law also delivered a letter in support of the petition to Barbera.

In his response, Shoemaker’s said the pro-waiver letter raised logistical questions such as: How would they define a recent graduate? Would it apply to recent graduates who have taken and failed recent conventional bar exams? Is this legally or constitutionally permissible?

Acknowledging potential logistical challenges, the signers of the pro-waiver letter said they would support limiting diploma privilege to a one-time basis, limiting it to practicing law in Maryland, and including only graduates of Maryland law schools or new attorneys wanting to pursue public interest law, according to the letter.

The anti-waiver letter likened the bar exam to professionals in other fields such as accounting and plumbing, who need to demonstrate proficiency before they can begin work. The letter reads, “... in order to instill faith in our system of justice, recent law school graduates should be subjected to an examination of the basic tenets of law just as generations of prospective candidates for admission to the Bar have been before, even in times of turmoil.”

Signers of the pro-waiver letter raised security concerns over a bar exam administered over the internet, including over the use of artificial intelligence to monitor people during an online exam. “Artificial intelligence has difficulty recognizing people of color and applicants are concerned their exams will be flagged because of algorithmic bias embedded in the software,” the letter states. There was also mention of worries over hacking and improper use of facial recognition technology.

The bar exam consists of an essay portion on Maryland law and questions on multi-state law, according to Shoemaker. He wrote in an email that there have been concerns that personal data could be compromised in the process of administering the multi-state portion of the test.

In the anti-waiver letter, the lawmakers suggested that at least the essay portion of the test could be administered by the Maryland State Board of Law Examiners without security concerns, though Shoemaker later said in an email he believes applicants should have to take the entire exam.

Neither group had received responses from the Maryland Judiciary as of Wednesday afternoon, according to Shoemaker and a spokesperson for the office of Del. Julie Palakovich Carr, a Montgomery County Democrat who helped organize the pro-waiver letter. A spokesperson for the Maryland Judiciary said Wednesday they could not comment because there is a petition before the court.

Baltimore Sun reporter Lillian Reed contributed to this story.

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