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Remote bar exams are risky and should be abandoned | COMMENTARY

There is a debate brewing about whether future attorneys should be allowed to skip the bar exam this year because of challenges caused by COVID-19.
There is a debate brewing about whether future attorneys should be allowed to skip the bar exam this year because of challenges caused by COVID-19.

Prior to the COVID-19 pandemic, I and 1,100 other Maryland bar applicants were expected to sit for an in-person administration of the Universal Bar Exam (UBE) at the Baltimore Convention Center at the end of July. However, as the severity of the pandemic was realized, it became clear that an in-person bar exam for that time was impossible.

Maryland bar applicants received an announcement on July 17 that the exam would be delayed until Oct. 5 and Oct. 6, and that the test would be taken at home and on personal computers. On its face, the change might not seem like a big deal, but it has brought on new concerns and challenges for applicants.

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Because of this, I joined three fellow bar applicants on July 31 in filing a petition to the Maryland Court of Appeals to adopt diploma privilege instead of administering a remote bar exam. Diploma privilege would allow bar applicants to become licensed to practice law without taking a bar exam. This is the only ethical way to license Maryland bar applicants. There is no indication secure and efficient software exists for a remote exam, and a remote exam presents never-before-seen test-taking challenges to applicants. Diploma privilege would also ensure the timely addition of nearly 1,000 new lawyers to serve the public.

This year is the first time a bar exam has ever been administered remotely, and only three technology companies indicated their potential to rapidly create well-functioning software. Since the pandemic began, two of the companies, ILG Technologies and Extegrity, have failed to produce a working product, causing the cancellation of several state bar exams. The third company, ExamSoft, will likely be responsible for simultaneously administering 30,000 exams in October. This would be at an unprecedented scale, as that company’s only previous attempt to use their software was with around 800 applicants in Michigan and there were significant technological difficulties.

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The remote bar exam has a new format and applicants will be forced to take the test under never-before-seen conditions. This exam will test the same subjects as the UBE, but it will be shorter, giving each question more weight. Applicants have not received information on how the exam will be scored. Further, in order to prevent cheating, applicants will be monitored and recorded by artificial intelligence (AI) during the entire exam. Since AI cannot determine what constitutes cheating, exams can be “flagged” if there is motion during the exam, including if an applicant touches their face or if a pet walks around the room.

Applicants are also prohibited from using the bathroom during the exam. Further, the Maryland State Board of Law Examiners prohibited scratch paper and pen during the exam. This is contrary to our legal training and bar exam preparation which emphasizes scratch paper and diagrams as crucial to success on the exam.

The most troubling aspect of a remote exam is that it tests an applicant’s access to resources. A remote exam requires a computer in excellent working condition, reliable internet and a consistently quiet workspace for a period of two days. In a survey administered to Maryland bar applicants by the diploma privilege advocacy group DP4MD, 49% of surveyed applicants reported concerns about access to consistent internet, while 78% of surveyed applicants reported concerns about access to a space where they could take the exam without interruption. This survey also indicated applicants of color were disproportionately more likely to have concerns about access to internet.

Advocacy for diploma privilege arises from sincere concerns about the equity of the remote exam and is supported by the deans of both Maryland law schools, as well as over 20 state legislators. To ensure an applicant’s ability to practice law, there are other safeguards in place, including the requirements to have graduated from a law school accredited by the American Bar Association, pass the Multistate Professional Responsibility Exam, and pass the extensive character and fitness background check.

As legal issues ranging from evictions to bankruptcy rapidly increase due to the pandemic, it is more crucial than ever that applicants be expeditiously licensed to practice law and to serve the public. Our world is experiencing unprecedented pain and my fellow applicants have lost jobs, health insurance, and loved ones since the pandemic began. Now, more than ever, is the time to use logic and show compassion toward others. The only ethical path to legal licensure for July Maryland bar applicants is to grant diploma privilege.

Alana Quint (alanaquint@gmail.com) is a recent graduate of the University of Baltimore School of Law and a member of the advocacy group DP4MD, which has coordinated an effort to seek diploma privilege in lieu of a bar exam in order to license new attorneys in Maryland.

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