In a letter dated August 13, 2020, a group of twenty-five Maryland State Delegates and Senators asked the Court of Appeals to implement “diploma privilege” in Maryland, allowing recent law school graduates and first-time applicants to forgo the bar exam and directly enter legal practice, no test needed. The Maryland bar exam, originally scheduled for in-person administration in July 2020, has been postponed to October. In light of serious concerns about the ability to enforce social distancing during all phases of the exam (including check-in, entrance/exit, and during distribution and collection of exam materials), it is set to proceed remotely, proctored by an outside technology vendor, using questions prepared by the National Conference of Bar Examiners (“NCBE”), and testing the same topics as the NCBE’s Uniform Bar Examination.
According to the letter’s authors, the Court of Appeals is continuing to evaluate options for the fall remote exam. For four reasons, they urge that diploma privilege be one of them. First, the authors argue, waiving the bar exam helps new graduates. Uncertainty about when new hires might finally take and receive bar exam results, paired with the challenging economic climate brought on by the COVID-19 pandemic, may have led to fewer professional opportunities, rescinded job offers, salary cuts, and other financial difficulties for first-time applicants. These concerns are particularly acute given the “mountain of student loan debt” many graduates carry.
Second, the lawmakers raise practical and logistical concerns about how the online exam will be administered. According to the authors, applicants currently have little information about what the online test will look like. In addition, the authors point to a recent survey of graduates from Maryland’s two in-state law schools (the University of Maryland Francis King Carey and University of Baltimore Schools of Law), which found that a majority of bar applicants lack key resources that will enable them to meaningfully participate in the exam, including: (1) quiet space without interruptions; (2) childcare; (3) adequate computer technology; and (4) reliable internet.
Another practical concern is security. The authors raise concerns about hacking and the “improper use of facial recognition technology through artificial intelligence” (the designated method for monitoring applicants during online administration), citing the “high-profile” issues encountered by Michigan when it conducted its online bar exam in July. (After issues with computer software locked test takers out of the exam, Michigan’s Supreme Court and Board of Law Examiners issued a statement saying that the crash was the result of a cyber-hacking attempt.)
Third, the lawmakers argue that the current online testing plan will have a disproportionate impact on “communities who have historically been underserved and underrepresented in the legal profession.” The recent graduate survey, the authors state, indicated that “non-white bar applicants are more likely to face poor mental health, feel less comfortable taking an online bar examination, and experience disproportionately more hardships” as a result of the COVID-19 pandemic.
Finally, forgoing the bar exam for first-time applicants and new law graduates could help contribute, the authors say, to a “pressing need” in the state. According to the authors, the COVID-19 pandemic and its attendant economic impacts have left “thousands of Marylanders” unable to pay rent and bills and, consequently, left the judiciary facing an “impending tsunami of both eviction and debt collection filings,” in which many residents may not have the benefit of legal counsel. Diploma privilege, the authors argue, might incentivize recent graduates (who would otherwise be unable to practice law) to “serve on the frontlines” of the state’s economic recovery, taking on public interest, low-fee, or pro bono work to assist Maryland residents in need, particularly those facing eviction, homelessness, wage garnishment, and debt collection actions.
The lawmakers acknowledge that immediate bar admission for new law school graduates will pose “its own logistical challenges.” They offer (and agree to support) several proposed limitations to a blanket diploma privilege, aimed at limiting those challenges. They include: (1) offering diploma privilege on a one-time basis, limited to these unique circumstances only; (2) limiting the privilege to only those attorneys who will practice law in Maryland; (3) restricting its applicability to graduates of Maryland’s two in-state law schools; and/or (4) offering the privilege only to new attorneys who are planning to begin or pursue a career in “public interest law.”
The Court of Appeals, for its part, has promised to issue an administrative order “at a later date” that formalizes the online exam announcement and addresses the provisions of the Maryland Rules needed to implement it. If Maryland were to change tack, choose to forgo the currently-scheduled October online test, and announce diploma privilege, it would join four states who are presently allowing students holding degrees from American Bar Association-accredited law schools to practice law without taking a bar exam: Utah, Washington, Oregon, and Louisiana.
What about Maryland’s neighbors closer to home? Earlier this month, Pennsylvania announced that bar exam registrants will take the test online in October, rejecting calls in that state for implementation of diploma privilege. A Change.Org Petition urging the Supreme Court of Virginia and the Virginia State Bar to extend diploma privilege to applicants registered for the July 2020 bar exam has more than 1,600 signatures. The District of Columbia Court of Appeals is considering requests to establish diploma privilege for new graduates and invited the public to submit comment on the issue. Public comments were due last week, on August 12. Whatever the result will be, in Maryland and elsewhere, the clock for Maryland exam takers is on and surely applying pressure: The current October 5 and 6 online testing dates are less than fifty days away.