Oregon’s Law Schools Ask Supreme Court to Waive Bar Exam Due to COVID-19. The Bar Is Not Pleased.

A tussle over whether newly minted law school graduates must pass the bar exam is dividing Oregon's legal community.

On June 15, the deans of the state's three law schools—the University of Oregon, Lewis & Clark, and Willamette University—asked Oregon Supreme Court Chief Justice Martha Walters to waive the July bar exam, which new graduates from the law schools normally take.

"We are writing to request that the Oregon Supreme Court, under its inherent authority to regulate the practice of law, institute a one-time emergency 'diploma privilege' to practice in Oregon for any person who timely filed an application for the July Oregon bar exam and is otherwise qualified for admission, notwithstanding the COVID-related space limitations," the deans wrote.

The reason: the COVID-19 pandemic, which has accelerated in Oregon in recent weeks.

"We are deeply appreciative of the efforts of the Oregon State Bar and the Board of Bar Examiners to administer the July exam at multiple sites—including our law schools—in order to try to socially distance the applicants from each other in light of COVID-19," the deans wrote. "But as the number of new confirmed and presumptive COVID-19 cases continues to increase steadily in our state, this plan becomes more imprudent."

There are economic and logistical issues at play, as well. Law school enrollment has been under pressure in recent years. Meanwhile, the cost of a three-year law degree has saddled students with crushing debts. The competition for legal jobs is intense, and the Oregon law schools want their graduates to be in a position to start working as soon as possible.

The deans noted their campuses have been closed for months, hampering students' ability to prepare for the exam; that many students' lives have been disrupted by the pandemic and by unrest sweeping the nation; and that they may be struggling to prepare for an exam that will not be given.

"The prospect of being unable to practice law due to a postponed or canceled bar exam would no doubt be crippling to our graduates," the deans wrote.

The state of Washington last week reversed course and granted all July bar exam applicants a free pass.

The Oregon State Board of Bar Examiners in May said it opposed waiving the exam, saying it was confident the July exam could be held in accordance with the necessary health precautions—and that Oregon law requires passage of the exam in order to practice law.

"The board found that diploma privilege was not a feasible or appropriate path forward for licensure in 2020," the board wrote in an open letter to Oregon's 15,000 licensed lawyers.

The Board of Bar Examiners noted that law school graduates can work as lawyers for a year prior to passing the bar exam under a program for "certified law students."

The deans said that's not enough.

"Allowing our graduates to engage in limited supervised practice is an insufficient substitute," they wrote. "In addition to delaying the exam, many of our graduates will be unable to secure work until licensed. Even those who could secure work would be tasked with studying for a postponed examination while actively representing clients."

Typically, about 400 applicants take the July bar exam, and over the past three years, about 75 percent passed it.

Numerous 2020 graduates from the state's three law schools also sent letters to the Oregon Supreme Court and the Oregon State Bar making the case for being allowed join the bar without passing the exam.

"In light of the worsening COVID-19 pandemic, the unrest surrounding the recent killings of George Floyd, Ahmaud Arbery, and Breonna Taylor, and the current urgent need for attorneys, we ask the Board to reconsider its May 15, 2020 decision to proceed with the Summer 2020 administration of the bar exam," the graduates wrote.

If the Supreme Court were to approve a waiver of the exam, that means about 100 graduates would be licensed to practice law that otherwise wouldn't make the cut. The Oregon State Bar says that's a bad outcome.

"Oregon is not in a position to quickly institute a diploma privilege program that meets our public protection standards," says Kateri Walsh, a spokesperson for the bar in response to the deans' June 15 letter. "First, we are required by statute to test for competency. Additionally, absent a thoughtful process to create a program that has added protections (as exist in states with these programs), we could put consumers at risk."

Phillip Lemman, the deputy state court administrator, says Walters and the Supreme Court received the deans' letter late Monday but have not had time to consider it.

This story has been updated with a link to letters from law graduates to the bar and Oregon Supreme Court.