The Maryland Bar Exam Will Proceed Remotely in October 2020, But Applicants May Seek Special Authorization for Limited and Temporary Supervised Practice of Law

On August 28, 2020, the Maryland Court of Appeals issued two Administrative Orders regarding the October 2020 state bar exam and an option for the temporary supervised practice of law for certain applicants. The orders mark the end of the Court’s evolving efforts, over a period of months, to facilitate admission to the state bar amidst the COVID-19 pandemic, an effort that included postponement of in-person exams previously scheduled for July and September 2020, approval of the State Board of Law Examiners’ recommendation for remote bar exam administration to be conducted in October 2020, review of an Emergency Petition filed by certain Maryland bar applicants (and supported by twenty-five state legislators) seeking suspension of the bar exam requirement and implementation of diploma privilege in Maryland, and an opportunity for public comment on the Board’s latest updated plan for administering the remote exam.

In the first order, the Court of Appeals confirms that the Maryland bar exam will be administered remotely on October 5 and 6, 2020. The remote exam is a shortened version of past years’ tests, similar in content to the Uniform Bar Examination (“UBE”) administered by the National Conference of Bar Examiners (“NCBE”), developed in conjunction with bar admission authorities in other states and the NCBE, and operated on exam software provided by ExamSoft Worldwide. In-person, non-remote testing locations will be provided only as needed to effectuate testing accommodations required under the Americans with Disabilities Act (“ADA”) for certain non-standard, non-electronic test taking previously approved by the Court of Appeals.

The Court’s decision to proceed with the remote exam is based, the order states, on the Court’s satisfaction that the Board of Law Examiners has developed a remote exam option that “offers the best alternative, based on all information, for retaining the integrity of the Maryland Bar Exam consistent with the policy stated in the Maryland Rules.” The Court points specifically to Maryland Rule 19-203(c), which states that the purpose of administering the bar exam is to “enable applicants to demonstrate their capacity to achieve mastery of foundational legal doctrines, proficiency in fundamental legal skills, and competence in applying both to solve legal problems consistent with the highest ethical standards.” The Rule further provides that each applicant is to “be judged for fitness to be a member of the Bar as demonstrated by the examination answers.”

With final confirmation that the exam will proceed remotely, what else do prospective test takers, gearing up for the big day, need to know? First, quiet, distraction-free testing locations should be made available to them where needed. Mindful of concerns expressed during the public comment period regarding applicants’ ability to successfully take the remote exam in a quiet location without distraction, the Court has directed the Board of Law Examiners to: (1) assist law schools and other entities interested in providing testing locations to develop protocols for safe exam administration at such testing sites; (2) publicize the availability of such sites to applicants; and (3) facilitate (as practicable) the ability of applicants to make use of available locations.

Second, applicants should expect to receive more information from the Board of Law Examiners. The Court’s order directs the Board to provide applicants details about registering for the remote exam, including a deadline to complete registration. Likewise, the Board is required to advise applicants by email, website posting, and other suitable means of other information needed to successfully take the exam, including (for example) access to passwords, the availability of sample or mock tests, and policies about allowable and prohibited electronic devices.

Third, deadlines remain strict and must be followed. Under the Court’s order, applicants planning to take the October 2020 remote test must complete any registration requirements within the deadlines set by the Board and the software provider, ExamSoft. Any applicant who fails to register within the deadlines will have their Notice of Intent to take the bar exam withdrawn. Absent a further order from the Court, the Board will not provide any new, additional, or extended application filing period. Late-filed applications will be addressed as provided by Maryland Rule 19-206(d) and Board Rule 2, both of which require a showing of good cause for the late filing.

The policy about failure or malfunction of an applicant’s computer or other technology equipment remains the same as it was during past in-person administrations: The applicant is responsible for any failure, including the failure of any equipment involved in securing Internet access before, during, or after exam administration. The takeaway? Make sure your computer is in good working order and that Internet service is fully functioning, uninterrupted, and stable. Applicants with temperamental, unsteady, or disrupted home Internet service, or without home Internet service, should consider (if appropriate or available given unique personal circumstances) making use of the remote testing sites to be offered by the state’s law schools and other facilities.

Finally, applicants concerned with the “portability” of their exam result (i.e., their ability, in ordinary circumstances, to use the UBE score obtained when taking the bar in Maryland to apply for admission in other jurisdictions) should be aware that, as of the date of the Court’s order, the Board has entered into reciprocal agreements ensuring the portability of scores earned by Maryland test takers on the October 2020 remote exam with bar examiners in Connecticut, the District of Columbia, Illinois, Kentucky, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Ohio, Tennessee, and Vermont. Authorities in Texas have announced that they will accept transferred scores earned from administration of an October remote exam in all the above states.

What about applicants who, in the Court’s words, “remain uncomfortable with taking the October 2020 remote bar examination” during the ongoing pandemic or who face “hardship created by COVID-19”? For qualifying current applicants, the Court, “in the interest of justice,” offers an option to apply for temporary special authorization to engage in the supervised practice of law in Maryland in lieu of taking the October 2020 remote bar exam (“Temporary Special Authorization”). That option is detailed in the second of the Court’s two August 28, 2020 orders.

Generally speaking, applicants who otherwise satisfy the requirements of Maryland Rule 19-201(a) (i.e., pre-legal education, graduation from an ABA-accredited law school, qualifying MPRE score, completion of the Maryland Law Component, and good moral character and fitness), have filed an unwithdrawn Notice of Intent to take the UBE originally scheduled for July 2020 (and carried over to October), and have not failed the bar exam (either the Maryland General Bar Exam or a UBE administered in Maryland) more than twice may submit an application for Temporary Supervised Practice to the Board of Law Examiners, together with the declaration of a supervising attorney who agrees to assume professional responsibility for the applicant’s work.

If granted, Temporary Supervised Authorization allows an applicant, under the guidance of a supervising attorney, to: (1) appear in a state court or administrative tribunal, or in alternative dispute resolution, on behalf of any person who consents in writing to the appearance and with the written approval of the supervising attorney (consent and approval must be filed on the docket and brought to the presiding judge’s attention); (2) prepare pleadings and documents to be filed in any matter where the applicant appears so long as the documents are signed by the supervising attorney (or a designated firm/organization attorney); and (3) give legal advice and perform other legal services. The supervising attorney must generally be present at all hearings, trials, or other appearances by the applicant except in the following cases and where written client consent has been obtained: (1) in civil cases in the District and Circuit Courts of Maryland, including juvenile and family divisions, on behalf of clients other than the state or a political subdivision; (2) on behalf of a criminal defendant at non-trial proceedings in cases involving no felony charges; and (3) in District or Circuit Court cases on behalf of the state or a political subdivision so long as the supervising attorney has provided written approval for the unaccompanied appearance.

Applicants curious about whether Temporary Special Authorization will provide relief or is feasible in their unique circumstances should consult the complete terms of the Court’s second August 28 order. Several limitations to what the Authorization conveys are worth highlighting.

First, no person who receives Temporary Special Authorization may, in any circumstance, practice law as a solo practitioner. Instead, at all times, an applicant holding Temporary Special Authorization must be supervised by an attorney who meets the Court’s eligibility requirements, who has submitted the required declaration of supervision, and who is either: (1) the employer of the applicant; or (2) employed by an entity (firm or organization) that also employs the applicant.

Second, the Court’s order emphasizes that Temporary Special Authorization is not admission to the Maryland Bar, nor is it indefinite. No person holding Temporary Special Authorization may hold himself or herself out to the public or any person as a Maryland licensed attorney. Indeed, all written communications made by a person holding Temporary Special Authorization must include the designation “Specially Authorized for Temporary Practice.”

Temporary Special Authorization may be terminated by the Board of Law Examiners or the Court of Appeals at any time and without notice, hearing, or any showing of cause. Applicants holding Special Authorization are expected to take reasonable steps to promptly obtain admission to the Bar. To that end, Special Authorization expires, without Board or Court action, upon (among other things): (1) the applicant’s admission to the Maryland Bar; or (2) unless extended on a showing of good cause, the applicant’s failure to sit for all sessions of the February 2022 UBE in Maryland or to file a Notice of Intent to Transfer a Qualifying UBE Score to Maryland or Petition for Admission Without Examination before the first day of the February 2022 UBE in Maryland.

The Court’s order leaves applicants under a month to decide which route they will take. The deadline for all applications for Temporary Supervised Practice is September 21, 2020 at 4:30 PM EST. When received by the Board of Law Examiners, the application automatically withdraws any previously filed Notice of Intent to sit for the remote October 2020 exam. Thus, while the testing procedure for October is now confirmed, applicants (and future employers) have decisions to make, and quickly, about how they will proceed: take the remote test, hoping to pass and secure admission this year, allowing them to likely begin unsupervised practice by early 2021, or seek Temporary Special Authorization and secure admission later, after a period of supervised work.

Heather L. Williams is a Partner in our Maryland office.