Bar Examination: Judicial Order by the Supreme Court of Georgia Providing for Provisional Admission to the Practice of Law

• Jurisdiction: Georgia,United States
• Citation: Vol. 37 No. 1
• Publication year: 2020

2020 BAR EXAMINATION: Judicial Order by the Supreme Court of Georgia Providing for Provisional Admission to the Practice of Law

Jessica M. Luegering
Georgia State University College of Law, jluegering1@student.gsu.edu

Gabby Wimley
Georgia State University College of Law, gwimley1@student.gsu.edu

2020 BAR EXAMINATION

Judicial Order by the Supreme Court of Georgia Providing for Provisional Admission to the Practice of Law

Judicial Order: Order In re: Provisional Admission to the Practice of L. in Ga.

Effective Date: June 1, 2020

Summary: The Supreme Court of Georgia issued the Judicial Order to postpone administration of the July 2020 Georgia bar examination to September 2020. The Order provided for the provisional admission to the practice of law of recent law school graduates and lawyers new to Georgia—those most affected by the postponement.

Introduction

As of October 10, 2020, the Centers for Disease Control and Prevention (CDC) reported 7.6 million COVID-19 cases in the United States.¹ COVID-19's highly infectious nature and the social distancing measures implemented to combat the spread of the virus caused major disruptions across all aspects of life.² The legal community was no exception—one of the major disruptions of the legal cycle was the rescheduling of the Georgia bar exam.³

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COVID-19 and the Bar Exam

Many aspects of the bar exam administration make it a fertile breeding ground for a COVID-19 outbreak. First, the bar exam is, at its core, a large gathering inside one room that takes place over two full days.⁴ Even if examinees are spaced out as recommended by the CDC, the six-foot measurement could be ineffective under many indoor conditions where air conditioning circulates.⁵ Masks that examinees could wear, though better than no protection at all, may not meet the standards that can appropriately filter virus particles.⁶

Second, the traditional Georgia bar exam takes place only in Atlanta.⁷ Hundreds of examinees need to travel to downtown Atlanta, find accommodations in Atlanta, and be able to safely stay in Atlanta as they take the bar exam.⁸ With such a large gathering in one location, the risk of an outbreak increases.⁹ In addition, those examinees could potentially bring the virus either to the test site or back to their communities after the end of the bar exam.¹⁰ The virus will not simply stay in Atlanta where the bar exam occurs—families and colleagues of examinees could be at risk if examinees return to their homes after contracting the virus during the bar exam.¹¹

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Finally, the bar exam already places an enormous amount of stress and pressure on future lawyers.¹² The bar exam, which represents the final barrier one must cross to become a licensed attorney, takes place only twice a year.¹³ Examinees study for two months or more to prepare for a two-day test that determines their ability to practice law.¹⁴ The stakes are high; the pressure is immense; and examinees are fatigued and stressed—the perfect recipe for weakened immune systems.¹⁵ In addition, the 2020 examinees are subject to the unique stressors presented by the pandemic and thus may be unable to focus on such a large exam.¹⁶ For these cumulative reasons, law students from across the United States petitioned their respective state's supreme court to provide alternate licensing procedures.¹⁷ The petitions proposed many alternative options in light of the surrounding circumstances, some of which were more successful than others.¹⁸

Alternative Licensure and Provisional Admission

The option most advocated for by students was an "emergency diploma privilege."¹⁹ Diploma privilege, once common throughout

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the United States, now only remains in Wisconsin.²⁰ In Wisconsin, this privilege grants licenses to most graduates of the state's law schools without a bar exam.²¹ However, Wisconsin requires students to complete a specific number of credits in standard doctrinal areas of law, and half of such credits must come from specific subjects as defined within the state's rules.²² Since a similar system may be unfair to those students who took alternate paths during law school, New York students advocated for a "Diploma Privilege-Plus" system that would require students to complete some online courses or programs to demonstrate legal competency.²³ However, only a few states—Oregon, Utah, Louisiana, and Washington—have implemented an emergency diploma privilege as of August 2, 2020, suggesting that such an approach may not generate much support.²⁴

In addition to students concerned about their own future, scholars of alternative licensure pathways also offered solutions to the COVID-19-caused interruption of bar exam administration.²⁵ These alternative licensing procedures were not novel suggestions but rather

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were ideas that had been considered previously and, in some cases, implemented.²⁶ For example, the University of New Hampshire School of Law implemented the Daniel Webster Scholar Honors Program, a practice-based program with constant feedback from faculty and the Board of Law Examiners.²⁷ Upon satisfactory completion of the program, graduates earn admission to the New Hampshire Bar without needing to sit for a bar exam; graduates of the program have even earned the reputation of being "far more client-ready than non-participants."²⁸ Though a system like this may seem too retrospective for a COVID-19 response, it demonstrates a practice-based method for licensing lawyers, as opposed to an exam-based method that seems less practical moving forward in light of the COVID-19-created disruptions.²⁹

Most states ultimately postponed their respective bar exams to the fall period, requiring the states to consider how to accommodate graduates who could not work in the interim.³⁰ In April 2020, the American Bar Association (ABA) issued a resolution that strongly encouraged licensing officials to institute emergency rules that would allow for provisional practice for recent graduates.³¹ The ABA emphasized that bar exams should remain the standard measure for licensure, and such provisional measures should be "available only for a specified time."³² At the same time, however, the ABA acknowledged the need to mitigate the "unprecedented financial burden" graduates would face with the additional months of job

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delay.³³ The Supreme Court of Georgia heeded the call of the ABA's resolution, ultimately issuing a provisional admission Order effective June 1, 2020.³⁴

Background

Passage of the Order

In April, the Supreme Court of Georgia undertook the task of determining, for logistical reasons, whether the bar exam could take place in July as originally scheduled, or if a September exam date presented a more feasible alternative.³⁵ Justices Blackwell and Peterson liaised with the Georgia State Bar, the Office of Bar Admissions, the Board of Bar Examiners, and the Georgia Department of Public Health.³⁶ The Court did not consider a specific rescheduling date for the exam, however, because the specific alternative date was provided by the National Conference of Bar Examiners.³⁷ The Court's chief consideration was "whether public health conditions would be more conducive" to a bar exam in either July or September.³⁸ Based on the input from public health authorities that the justices consulted, the Court determined that it was "more likely that a bar exam would be feasible in September."³⁹

The public health status still did not improve following the initial rescheduling of the Georgia bar exam.⁴⁰ Due to continuing

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COVID-19 concerns, on July 20, 2020, the Court cancelled the in-person bar exam scheduled for September, allowing applicants the opportunity to take an online exam in October.⁴¹ As of August 31, 2020, the Board of Bar Examiners had not set a date for the release of the online exam's scores—without some kind of emergency rule, recent graduates and out-of-state lawyers would find their ability to practice delayed even further than first expected.⁴²

Fortunately, when the bar exam was first rescheduled, the Court discussed the needs of recent graduates and out-of-state lawyers affected by the postponement of the exam and determined some relief would be warranted.⁴³ In determining the best kind of relief, the Court consulted State Bar leadership, Georgia law school deans, and the Board of Bar Examiners.⁴⁴ Ultimately, what became of those discussions was the Court's Provisional Admission Order filed on April 17, 2020, and effective on June 1, 2020.⁴⁵

The Order

The Supreme Court of Georgia included five separate provisions in the Order that define the provisional license, the process for attaining it, and other limitations.⁴⁶ The Order states that it "is a temporary emergency measure intended to mitigate economic hardships arising in connection with the postponement of the July 2020 Georgia Bar exam."⁴⁷ Part One of the Order limits the provisional license to (1) recent law school graduates and (2) lawyers admitted to practice in

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other jurisdictions.⁴⁸ Recent graduates of law school must have graduated from an ABA-accredited school within eighteen months of their application to sit for the bar exam.⁴⁹ The Board of Bar Examiners must certify the applicant's fitness to practice law.⁵⁰ The dean or a member of the faculty at the applicant's law school must certify that the applicant is competent to practice law under supervision.⁵¹ Additionally, the applicant must not have failed a bar exam in any other jurisdiction to be eligible for the provisional license.⁵²

Lawyers admitted to practice in other jurisdictions have different eligibility requirements.⁵³ First, they must have been admitted in another U.S. jurisdiction, where they remain in good standing, and not face any pending disciplinary proceedings in that or any other jurisdiction.⁵⁴ Second, the Board of Bar Examiners must also certify their fitness to practice law.⁵⁵ Third, they would be "ineligible for admission upon motion without...