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Hoping for the best: July bar exam still on

More than 700 aspiring lawyers are set to gather for an in-person bar exam at the end of July as the number of confirmed COVID-19 cases in North Carolina continues to rise, particularly among younger residents.

The North Carolina Board of Law Examiners announced on May 5 that it intended to administer the bar exam on July 28 and 29 as planned if it could, but would push the test date back to September if it couldn’t. With less than a month to go, the July exam is set to happen unless there is a very sudden and serious change in circumstances.

The virus has put almost everyone involved into a difficult spot. Bringing hundreds of people together in a single building creates an environment conducive to spreading the disease. But for many applicants, waiting until the next scheduled exam in February would put them in a very precarious spot financially, waiting at least an extra six months before they could take jobs as attorneys—and with no guarantees that the pandemic will be brought to heel by then.

As such, some applicants have lobbied for the NCBLE to administer the bar exam online so it can be taken safely at home. But Kimberly Herrick, chairman of the NCBLE’s board, said that wasn’t an option now that the state has adopted the Uniform Bar Exam, which can’t be given online. Moving the test online would have meant writing an entirely new exam from scratch on short notice, which would have been a daunting task.

In fact, until recently the NCBLE wasn’t even sure it would even have an exam to give out. The National Conference of Board Examiners, which coordinates the UBE, waited to see how many jurisdictions opted to go ahead with their tests before deciding to release the exam. As of June 18, 29 states were planning to administer a July exam, including seven that plan to offer a September exam in addition. Three states have moved their July exam online, but none of those has adopted the UBE.

Between rocks and hard places

So that leaves the exam back where it started, being given in-person in July. Helpfully, the bar exam is already a rigorously socially distanced affair, so applicants will be well more than six feet apart, and most will take the test in the cavernous Jim Graham Building on the state’s fairgrounds as usual.

The NCBLE is taking further steps to try to limit the risk of spreading the virus. Test-takers will be spread out even further than usual and allowed to bring in water bottles so they don’t have to use water fountains. Entry and exit will be staggered to avoid long lines, check-in will be done remotely, and photo IDs will be shown, but not handed over, at the test site. Pursuant to the state’s mandatory mask-wearing order, test-takers will be required to wear their masks any time they’re not in their seats—but won’t have to wear masks when seated.

Herrick also said that applicants could switch to the February bar exam at any time without penalty.

“If people get there and they don’t feel safe, or even during the test, they can just say the word and we’ll transfer them,” Herrick said. “I think that needs to be as liberally granted as possible. I don’t want anyone to feel like they have to stay. I don’t want there to be any penalty for deciding to wait until February.”

Chamberlain Collier, a 2020 graduate of Campbell Law School who is preparing for the July bar exam, said that she was glad that the exam is being offered in July but was discouraged that the NCBLE wasn’t doing more to enforce safety protocols. In particular, Collier said that she thought the NCBLE should be requiring test-takers to wear masks throughout the test, and should have set up additional locations where high-risk individuals could take it. Many of her classmates who are at higher risk now find themselves in a very stressful position, she said.

“I want to take a bar exam in July, but I want them to be safe about that,” Collier said. “I don’t want to put anyone in harm’s way to get a law license, and I don’t think we should be forced to make that decision.”

Collier’s classmate, Kevin Littlejohn, also said he was also glad that the NCBLE was offering the exam in July, but felt that more could be done to protect the most at-risk test-takers. He also said that he would have liked to have seen better communication from the NCBLE, and the uncertainty surrounding the exam had made preparing for the bar even more challenging than it already is.

Several states have tried to minimize the agony for applicants by adopting or expanding rules that allow bar applicants to practice law provisionally until their bar exams can be processed. North Carolina hasn’t taken any such steps, which would have to be implemented by the state bar. The good news, such as it is, is that the NCBLE’s office was already largely paperless, so the grading process should be unaffected, and there have been no problems with processing applications, Herrick said.

The big question

Herrick said that so far it seems not many applicants are opting to wait. A bit more than 750 people are signed up for the exam, although even in a normal year there’s always some attrition as test day approaches. The number of test-takers will be down at least slightly from last year, but the numbers have fluctuated greatly in recent years because of the switch to the UBE and the shuttering of Charlotte School of Law, so it’s tough to estimate how many would have sat for the test if not for the pandemic.

North Carolina doesn’t offer courtesy seating to people applying for the bar in other states, as some UBE states do, but Herrick said that if it did, there would probably be a lot of interest from applicants in states like New York which have delayed their exams.

Before sitting for the exam, test-takers will have to certify that they haven’t tested positive for COVID-19, aren’t exhibiting any symptoms of the disease, and haven’t recently come in contact with any person whom they know has been infected. But many people who are infected with the virus don’t exhibit any symptoms, and applicants won’t be required to get tested before showing up for the exam. Proctors will be watching for known symptoms, but otherwise exam-takers will simply be on their honor to comply with the rules.

Of course, exam-takers also pledge not to cheat, but the exam is still vigilantly proctored to prevent cheating just the same. Given the incredibly high stakes of the bar exam, a tremendous amount of faith is being placed in anyone who wakes up on the morning of the test with a slight fever or a little shortness of breath.

“I think we’re all concerned about that,” Collier said. “You see people in the law school environment show up to class when they’re visibly sick. A bar exam, where the option is you walk in and you take it right now or you are waiting six months to even get another chance to take the test, that’s a really hard decision to have to make. There’s no way you can expect that every single person is going to make the right decision and stay home. Ultimately, there are going to be some people who are going to make the decision to go.”

Follow David Donovan on Twitter @NCLWDonovan

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