NYSBA Task Force Seeks Early September Bar Exam

By Christian Nolan

Setting the page on fire with some hard work

With news coming late last week that the New York Court of Appeals had canceled the July bar exam, NYSBA’s Task Force on the New York Bar Examination is recommending that it be rescheduled for a date as soon as possible around Labor Day – prior to the Jewish holidays at the end of September.

If circumstances make a fall bar exam impossible, then the task force recommends that existing provisions in governmental and legal-aid organizations be expanded to allow graduates to practice with private sector attorneys and law firms.

The task force’s report also recommended a one-time general waiver to all law schools of the Court of Appeals’ limits on distance learning credits for applicants to the New York State bar, so that students completing law school this year would not be penalized due to widespread measures that have been taken to stop the spread of the coronavirus.

“Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policy makers,” said NYSBA President Hank Greenberg.

On Friday, hours before New York cancelled the July bar exam, the National Conference of Bar Examiners (NCBE) said it would be providing all three of its exams – the Multistate Bar Exam (MBE), the Multistate Essay Exam (MEE) and the Multistate Performance Test (MPT) – in the fall regardless of whether or not they decide by May 5 to cancel the July exams.

Reports indicate that the NCBE is considering dates in late September that would conflict with the Jewish holidays of Rosh Hashanah and Yom Kippur. NYSBA’s task force stated in its report that “it would be very ill-advised to require Jewish bar applicants to choose between religious observance and bar preparation.”

The task force –  including state and local bar association leaders, law professors, solo practitioners and other stakeholders from across the state – acknowledged that New York cannot compel the NCBE to offer the test on a specific date, but noted in the report that “because of the large number of test takers who take the test in New York, New York can and should exert its prominent role in the American legal community to influence the NCBE to offer the UBE in early September.”

Distance Learning Waivers
New York’s Court of Appeals limits the number of distance learning credit hours that a law school student may count toward the total number of required credit hours. The task force report notes that many law schools shifted to distance learning over the past month due to the coronavirus public health emergency, and that as a result some students may end up with more distance learning credits than they had planned. As such, the task force recommends that distance learning requirements be suspended on a one-time bases for the spring 2020 semester.

“Some law schools in New York State have already received waivers on the distance learning requirements,” said task force chair Hon. Alan Scheinkman, presiding justice of the Appellate Division for the Second Judicial Department. “For out-of-state students who plan to practice in New York, it is unfair that they would not get the same relief.”

Practice Waivers
Special practice orders allow law school graduates to engage in law practice activities under the supervision of attorneys. New York law presently permits governmental agencies such as district attorney offices, corporation counsels, and legal aid organizations to apply to the Appellate Division for an order permitting law school graduates and law students who meet certain criteria to engage in specified law practice activities.

Because the duration of the coronavirus public health emergency is unknown, the task force recommends seeking the required legislation now that would allow the Appellate Division to extend the special practice orders to private sector attorneys and law firms. The task force report notes that taking such action would expand law school graduates’ opportunities for gainful employment and notes that “the public is protected since the activities of the law graduate are subject to the supervision of a licensed attorney.”

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