New York Moves Bar Exam Online, Excludes Second Times LLM candidates

New York will hold its upcoming bar exam online in October 5-6. The announcement comes one week after the state canceled the in-person exam set for September out of public health concerns stemming from Covid-19.

Chief Judge Di Fiore and Governor Andrew Cuomo – Credit @ Newsday

In light of public health concerns, New York has joined the growing list of states that canceled in-person bar exams, with plans for an October remote test offered by the National Conference of Bar Examiners. On July 16, having determined that the plan for a socially-distanced in-person examination, developed with the support of the New York law school deans, had become impractical, the Board of Law Examiners made the difficult decision to cancel the September administration of the exam.

The New York State Court of Appeals, the state’s court of last resort, appointed a working group to advise on how to move forward. It recommended going with the NCBE’s October exam, despite concerns about the remote test’s “experimental nature,” according to an update posted Thursday on the court’s website.

Diploma Privilege; Postponing the Exam to February 2021; many options were discussed

As its first undertaking, members of the Working Group were tasked with studying whether immediate, emergency measures are necessary to address the disruption experienced by aspiring attorneys in New York. Under the leadership of Judge Levine, the Working Group has issued a comprehensive report and several recommendations addressing these urgent issues.

Initially, the Working Group evaluated the necessity of alternative pathways to licensure, noting the availability of the temporary practice authorization program and expressing a preference to postpone examination until February 2021. But this alternative was rejected because of the uncertainty associated with holding an in-person examination at that time.

The Working Group rejected a temporary diploma privilege option, noting that the bar exam provides critical assurance to the public that admitted attorneys meet minimum competency requirements, emphasizing New York’s immense candidate pool as well as the degree of variation in legal curricula across the country.

Ultimately, in light of the exigencies presented by the pandemic, the Working Group recommended that New York administer, on a one-time basis, the emergency remote testing option to be offered by the NCBE on October 5-6.

We agree that a remote exam is not a perfect solution, but also concur that the benefits outweigh the potential shortcomings in affording the Class of 2020 with a much-needed path to a law license, which they previously did not have.
— New York State Bar Association (@NYSBA) July 23, 2020

Not the best solution

“While acknowledging the shortcomings of the remote exam—including its experimental nature—the Working Group, in consultation with technology, security and psychometric experts, discussed proactive measures to ensure broad access, mitigate security risks and establish a reliable grading methodology,” the statement said.

California last week made a similar announcement. The California Supreme Court said it was trying “to avoid the need for, and dangers posed by, mass in-person testing.”

Request Waiver for Second Time J.D. students to be considered – LLMs excluded

Due to seating limitations, New York initially gave preference to local law schools for the September Bar Exam. Indeed, the registration was initially opened for first time test takers who graduated from one of the fifteen law schools located in New York State. Additional windows of registration were later opened to include students from other jurisdictions, including second time bar takers.

The Court’s announcement now states that candidates registered for the September exam will be automatically registered for the October remote exam. The Court and the Board also added that they will consider waiver requests by JD candidates who graduated in 2019 or later, previously took the bar examination in New York and failed no more than two times and now wish to sit for the online examination. However, the announcement does not mention LL.M students. It is then unclear whether second-time LLM bar takers can now register for the online bar exam or not.

Further information regarding the remote exam will be posted as it becomes available. The Court encourages everyone to monitor this website, as well the Board of Law Examiners’ website, for additional updates.