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'Literal hell'— how the pandemic made the bar exam even more excruciating for future lawyers

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Many lawyers will tell you that taking the bar exam is among the most painful experiences of their lives. The days-long exam requires months of intensive studying, expensive bar-prep classes and can cost thousands of dollars to take.

For hundreds of years, governments have used "barrister's exams," often including both a knowledge assessment and a character assessment (involving a lengthy background check and several character references), to approve lawyers into the profession. 

The American Bar Association estimates that only 75% of people pass the bar the first time they take it, and the coronavirus pandemic has made this experience even more painful for prospective lawyers. 

CNBC Make It spoke with future lawyers, many under the conditions of anonymity due to fears that critiquing the bar would lead to them failing the character portion of the exam, about the challenges they have faced.

"I'm worried because they have threatened to do character investigations on those of us who are making noise," said one person. 

Their experiences paint a picture of disorganization among state and federal bar organizations. 

The history of the bar exam

The National Conference of Bar Examiners was founded in 1931 with a mission to "develop, maintain, and apply reasonable and uniform standards of education and character for eligibility for admission to the practice of law." But critics have long raised concerns that bar exams have historically been used to gatekeep who can become a lawyer — often along the lines of race, class and gender. 

In the 1960s and '70s, civil rights organizations such as the NAACP and the ACLU filed numerous claims that bar exams were being used to keep black lawyers out of the profession — racial gaps in passage rates persist

Today, the NCBE oversees state bar exams as well as the Uniform Bar Exam, which is accepted by 36 states.

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The stakes have been raised

While many states have moved to lower the minimum scores test-takers must earn in order to pass in response to the coronavirus pandemic, in many ways the exam is even more stressful today than in the past.

One reason: historic levels of student debt. According to the National Center for Education Statistics, between 2000 and 2016, average student loan debt for those earning law degrees increased from $82,400 to $145,500. 

For many students, passing the bar is a requirement for financial survival. 

Alex* recently graduated from New York University Law School. She says she has $330,000 in student loans from law school.  

Alex planned to take advantage of NYU's generous loan repayment assistance program wherein, if she worked in public law for 10 years and made less than $100,000 per year, the school would forgive all of her loans. 

In November of 2019, Alex secured an offer from a public defender's office in Florida and felt confident that when she graduated in 2020, she would study hard for the bar, pass and be on route to financial freedom and a rewarding career. 

Now, she says the public defender's office has indicated they will likely not be able to hire everyone who was extended offers because the pandemic and economic recession has significantly impacted its budget. The deciding factor for who will be given an offer: performance on the bar exam. 

"They're telling us that once we get our bar results and we let them know whether or not we passed, then they'll start a committee to decide whether or not we can work," says Alex. "I thought I was set last November. I thought I was golden and now I have to worry about actually having a job at the end of this, which puts more pressure on the bar exam than already exists."

Without the NYU repayment program, she estimates that she would owe around $2,800 per month in loans. 

A 'synecdoche' for the U.S. coronavirus response

The Florida bar exam was originally scheduled to take place on July 28 and 29 in Tampa, Florida. 

On May 5, the Florida Board of Bar Examiners announced in a press release that the test would be administered in both Tampa and Orlando, with the goal of decreasing the number of people in each exam room. The organization also announced that test-takers would have their temperatures checked, be required to wear masks and social distance and that, in accordance with an executive order from Governor Ron DeSantis, those from out of state would need to quarantine in the state for two weeks. 

The press release ended with a warning in bold that as "the COVID-19 situation continues to evolve," the State Supreme Court and the Board of Bar Examiners "may consider other options."

They would. 

Kyle* currently lives in Brooklyn and was also planning to take the Florida bar exam on July 28 to join a public defender's office. After learning out-of-state test-takers would need to quarantine, he booked an Airbnb for 18 days in Tampa for $1,500. 

On July 1, the Florida Board of Bar Examiners released another press release, announcing that the Orlando and Tampa exams would be canceled and replaced with an online exam to be administered on August 18. 

Kyle says only a $300 cleaning fee from the Airbnb was refundable and notes that the bar process includes several fees, which vary from state to state, and that can be prohibitively expensive for some.

He says he was required to pay a $1,000 exam fee, a $150 computer fee and a $135 fingerprinting fee.

The vast majority of those taking the bar also take a bar prep class which can cost up to $3,999. Kyle says he got a discount on his course, which cost him $1,200. 

He adds that when he was 19 years old, a New York police officer gave him a ticket for trespassing in a public park outside of regular hours. Disclosing this ticket, and sending documents between New York courts and the Florida Board of Bar examiners has involved several additional fees, he says. 

"The amount of money I've spent on shipping stuff to the bar, shipping stuff to the courts, booking accommodation, the bar prep course, the application fee and all the ancillary fees to the application fee, is probably close to $4,000," estimates Kyle. Among those CNBC Make It interviewed, this total appears to be an average estimate. 

On July 3,  the Florida Board of Bar Examiners moved the date of the online exam to August 19 so that the test would not conflict with Florida's state primary. 

On August 7, Florida test-takers were asked to download software by software company ILG that would be used to take the online exam in their state as well as in states across the country. There were significant difficulties.

Alex says she has heard stories from Florida and other states that the ILG software had crashed computers and that the software failed to accurately record answers submitted by students. 

Indiana attempted to administer an online bar exam in late July using ILG's software but was forced to administer the test open-notes via email when the software did not work. 

Others have raised concerns that the online test proctoring software does not track darker skin tones as well as it tracks lighter skin tones — creating worrying conditions for Black and Brown test-takers to be flagged for infringements at higher rates. 

CNBC reached out to ILG but did not receive a response. 

The Florida Board of Bar Examiners' website released a note indicating that they "do know of the problems that have been reported. A minority of applicants who downloaded the software raised security and other technical concerns about ILG's software."

With so many concerns raised, Kyle says he is baffled that the Florida Board of Bar Examiners continued to insist the test would successfully be conducted online. 

"It feels like a metaphor or a synecdoche for what's going on more broadly with the U.S.'s response to coronavirus, where institutions that aren't really legitimate are responding to legitimacy crises by doubling-down on their b*******," he says. 

Then, on August 16, after Alex and Kyle had spent months studying and paying for a test that they needed to pass in order to secure jobs they had spent hundreds of thousands of dollars preparing for, the exam was canceled. They say they have not been refunded and have been asked to re-register for a later date. 

"Despite the board's best efforts to offer a licensure opportunity in August, it was determined that administering a secure and reliable remote bar examination in August was not technically feasible," reads an email from the Florida Board of Bar Examiners to test takers, obtained by CNBC Make It. "In addition, the live trial of the examination software scheduled for Monday, August 17 is also canceled."

"If this is their best efforts, they need to resign," says Alex. 

David Reeves, chair of the Florida Board of Bar Examiners tells CNBC Make It that his organization is working hard to balance their legal obligations to "protect the public and to protect the integrity of the judicial system," to provide equitable access to the exam and to safeguard the health of all involved.

"It's been a tough road for us, though we're not asking for sympathy by any way, shape or means. It has been a tough road for the applicants, and we certainly understand the anxiety and the stress they are dealing with. I took the exam 25 years ago or so, and it was stressful enough taking the exam then, but taking it in the middle of a pandemic, and with the fits and starts, it certainly adds to the stress," says Reeves. "Every attempt and change from those attempts has been to try to provide the earliest opportunity for these applicants to get admitted."

The email also indicates that the organization is creating a temporary "supervised practice program" in which individuals may practice under the supervision of a member of the Florida bar.

A representative for the Florida Board of Bar Examiners confirmed that a certified legal intern program is in development alongside necessary groups such as the Florida Supreme Court. 

But both Alex and Kyle say they are unsure where their jobs stand. 

Diploma privilege

This kind of supervised practice program is a distant cousin of a solution many law school graduates are calling for — diploma privilege

Emergency diploma privilege allows qualifying law school graduates to practice law. States have historically conferred diploma privilege in the wake of natural disasters such as the California earthquake of 1906 and during wars including World War II and the Korean War. 

Emma* is one of those recent law school graduates who was granted diploma privilege by her state of Louisiana. 

Emma says she has over $200,000 in student loans and spent thousands more preparing and applying to take the bar exam. She was eager to take the exam and begin a job clerking for a local judge, so after she graduated from law school in May, she began studying for the bar, which was scheduled for July 27. 

After weeks of studying, Louisiana decided to shorten the state's bar exam from three days to one day but insisted the test would take place in person on the scheduled date. 

"From the middle of May through the beginning of July, I was studying eight to 10 hours a day," she says. "It was the worst experience of my life. It was miserable because you're so stressed and this one exam is the gateway to your entire future. I was so stressed, my hair was falling out. One person I know gave themself a stomach ulcer."

On July 15, the state canceled the July exam among growing coronavirus concerns. 

"When I found out, I sat at my desk for 30 minutes just staring into space because I couldn't process everything," recalls Emma. "A friend of mine immediately burst out into tears."

Then on July 22, the Louisiana Supreme Court announced that law school graduates would be awarded an "emergency action waiver," otherwise known as diploma privilege. 

Emma was shocked and relieved by the news. But she also noticed loud complaints on social media, and more subtle whispers among older lawyers she knew, that the law school class of 2020 was getting "coddled." 

A Facebook post from the Louisiana Bar Association announcing the news of diploma privilege has dozens of critical comments along the lines of "If I had to take the bar, so should they." 

Emma says she anticipated the critiques, adding that she wishes more than anything she could safely take the bar now, and that she eventually will. 

'I just want this literal hell to end'

Megan Kilmer planned to take the California bar in July before beginning a job as a first-year associate at a law firm in Southern California this fall. The California bar exam is now scheduled for October. She says she has also heard complaints that the class of 2020 is getting off easy. 

"The bar exam is just a hazing ritual for lawyers," Kilmer fires back. "I don't think it accurately or fully measures your competency as a lawyer. Even the president of the ABA says that."

Indeed, for years, legal experts have complained that the modern bar exam, wherein test-takers must memorize a wide range of legal facts and procedures, is not relevant for an age where lawyers are often highly specialized in one area of the law and have the ability — and the responsibility — to research any given legal question before they offer professional advice. 

Kilmer says she understands that some older lawyers may look down on those who are granted diploma privilege. 

"Once you get diploma privileges, you might have a black mark on your resume," she says. "But at the same time, people don't recognize all of the stress that we had to go through. I would love to take the bar. I just want this literal hell to end."

To be sure, the law school class of 2020 is dealing with significant stress.

For instance, while failing to pass the bar may not have been grounds for termination in the past, the economic recession has created a harsh reality for recent law graduates.

"I have a job lined up. I hypothetically start in November. I have a two-strike rule where if I don't pass the first time, they will give me a little time off but my title gets knocked down to 'Clerk,' my pay gets reduced and I have to pay for all of my own test prep (the first time around, they paid). If I don't pass after that, I get fired," explains Kilmer. "I think now, it will more often be a one-strike rule. I think a lot of firms are trying to get out of contracts with future associates since a lot of firms are struggling."

Brian,* was also hoping to take the California bar before beginning a first-year associate position at a large corporate law firm in Los Angeles. 

He says many people underestimate the toll that delaying the bar exam takes on future lawyers. 

"Bar prep is a marathon," he says. "It's about pacing yourself so that you peak at the right time because the threat of burnout is really real. And you're trying to remember so much information where if you work too long, you eventually hit a point where it's to your detriment to keep studying."

Brian points out the many inequities that come with online exams. He mentions that while he may have a quiet place to study and take the exam, many people share homes with families, children and roommates. Not everyone has reliable access to Wi-Fi, he explains. 

"We also need to consider cost of living. Usually, you just wait from May to July, but now we're stretching it to May to October," says Brian. "That's another two or three months of rent, food and living expenses we need to cover out of pocket, where we usually would have started our jobs already."

He continues, "If you had asked me in March or April, I probably would have said that with proper planning and foresight, you definitely could have pulled off an online exam or an in-person exam with some guardrails and mitigating circumstances to make sure no one got sick, but the reason there's such a big push for diploma privilege is that both states bar examiners and the supreme courts of all the states have kicked the can down the road continuously until we hit a point where it seems like it was the only equitable solution."

The Uniform Bar Exam

Chelsey Whynot, a graduate of Tulane Law School accepted a role as a first-year associate at a major New York law firm last year and has been planning to take the New York bar for months. 

But on April 30, the New York State Board of Law Examiners announced that only students who graduated from New York law schools would be allowed to take the exam, thereby excluding Whynot.

Her other option was to take the Uniform Bar Exam in another state and have her score transferred.

"By that time, a lot of applications for other states had closed or they were also only admitting in-state graduates," explains Whynot. "It was not a good situation to be in."

She managed to reserve a spot to take the UBE in Washington D.C. in July. 

On May 4, D.C. exam was delayed. 

On June 8, it was announced the exam would be moved online and modified with one significant change — it would not use the UBE, making Whynot's efforts to take the exam in D.C. moot, since she would not be able to transfer her score to New York.

Once again, she shifted. Whynot withdrew from the D.C. exam, forfeited hundreds of dollars in fees and paid an elevated fee of $1,800 to register late for the Illinois bar exam, which was set to offer the UBE. 

On July 23, Illinois announced its bar exam would also be moved online and also would not use the UBE. 

"After studying for months, it was the middle of July and I had no bar exam to take for a job I am supposed to start in the fall," recalls Whynot. 

Soon after, Whynot got what she describes as her "first bit of good luck." The New York bar would be held online in October, and out-of-state graduates could take it. 

Now she is scheduled to take the New York bar online in the fall, but the law school graduate is skeptical that the test won't be rescheduled and that the test-taking software New York has selected, ExamSoft, will work. 

"Michigan was the first state to host an online test a few weeks ago, they used ExamSoft, and apparently the whole system crashed and melted down," says Whynot. "And that was just Michigan! New York will have way more people sitting for this test."

ExamSoft claims that a cyberattack was responsible for the crash, which happened about an hour into the exam, and states that all 733 people who took the exam were eventually able to submit their tests.  

Michigan Supreme Court Chief Justice Bridget Mary McCormack wrote a letter to test-takers in response to the difficulties. 

"Under normal conditions, the bar exam is a life event most recall as an ordeal. But yesterday's examination issues made the experience harder, and I am so sorry for that," she wrote. "While this may not be consolation, be assured that we will find out exactly what went wrong and address it for those affected and for future applicants."

In her letter, McCormack says this year's exam raises questions such as "Is the bar exam the best way to measure competency?," "Does the bar exam create unnecessary and unfair barriers to the practice of law?," and "Are there ways to fundamentally change how lawyers are trained, licensed and regulated?"

Ultimately, Whynot blames the NCBE, the organization that she says is supposed to oversee bar examinations on the federal level, rather than state bar examiners, for the pain she has been forced to go through. 

In a statement sent to CNBC Make It, a representative for the NCBE said the organization has "worked diligently" to "ensure that as many graduates as possible will have the opportunity to become licensed in 2020" by approving new testing dates and remote testing. "Each jurisdiction determines its own legal licensure requirements and handles registration for and administration of the bar exam in that jurisdiction," they said. 

"The second this pandemic started and people started to wonder about the bar, immediately, the NCBE was like, 'We're going to step back and let states handle this as they see fit.' And that is what caused, in my opinion, all of these problems, because the NCBE is the one who's supposed to be making sure that all students like have the same opportunities and that everything is running smoothly," she says. "The NCBE in my opinion, stepped back when they should have stepped up. And I think that a lot of this could have been a nonissue if they would have taken more of a leadership role so that people like me, aren't registering for four bar exams and barely even getting to sit for one." 

Whynot continues, "it's embarrassing that this is supposedly a test about competency and these people can't get it together."

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