The last few weeks of disruption arising from the coronavirus pandemic have yielded calls for state bar licensing authorities to consider what accommodations they should offer ahead of the schedule July 2020 administration of the bar exam. I’ve looked at some of these proposals here and here.

One of the more popular points of advocacy—and, it’s worth emphasizing, driven by law school faculty of ABA-accredited law schools, law school deans of ABA-accredited law schools and law students graduating from those institutions—is for “emergency diploma privilege.” (I’ve pointed out how this addresses only a slice of the bar exam-taking population here.) Sadly, this point of view has spiraled away from the emergency-oriented concerns into more broad-based (and, in some ways, timeless) critiques of the bar exam generally.

Diploma privilege would be a dramatic change, even if on an “emergency” basis. And, again, it only addresses a subset of the exam-taking population. So perhaps it’s no surprise to see state bar licensing authorities offering a two-step approach, an approach, I think, that will become the norm. It’s a model raised among New York law school deans (as a more modest measure to their larger proposal for diploma privilege!) and the American Bar Association, in addition to something states like Tennessee and Arizona are implementing.

First, the bar exam may be delayed—perhaps into September or October, perhaps into February of 2021.

Second, the state bar licensing authority offers more generous opportunities to engage in the limited supervised practice of law, until those would-be bar test-takers are able to take the first bar exam available.

In some ways, it simply extends the limited practice of law opportunities that already exist for recent law school graduates or those awaiting bar results. It allows the accommodation of in-state and out-of-state law school graduates; it allows it for JD and non-JD graduates; it even allows some accommodation for those from other jurisdictions who want to take that state’s bar and practice there (as the Tennessee order expressly contemplates). It does not, however, accommodate those who have previously failed the bar exam (e.g., deemed lacking minimum competence to practice in a previous administration of the bar exam).

The two-step proposal helps address the many cohorts who have an interest in the July 2020 bar exam. It does increase the inconvenience of recent graduates—they’ll likely take a bar exam while working or need to take time off from working to take the bar exam. Particularly if they study over the summer for a September test, only to find the September test further delayed and need to take it in February, it would be particularly frustrating.

That said, the two-step proposal is minimally disruptive to the status quo and allows recent graduates to quickly enter the working legal profession. And it’s minimally disruptive from the state bar perspective in that the bar exam—how every jurisdiction measures minimum competence (with all of the controversy that surrounds it, to be certain!)—will remain in place, simply at a later date. States have had little difficulty with limited practice status granted to recent graduates—extending that slightly is a natural solution.

I anticipate many more states will move in this direction, but time will tell if that changes—some jurisdictions might get more creative, the coronavirus might worsen, or other intervening events might change things.