Legal education adapted overnight - in unprecedented fashion - to pandemic-related directives to stay home, offering not only traditional classes online but also moot court, library and student services, ASP, guest speakers, and more. Law schools could have shuttered for the semester; they did the exact opposite. Law faculty, administrators, and students dove in (many working round the clock) to ensure that high quality education continue uninterrupted. They are also working to ensure students’ basic needs are being met by expanding food banks, physical and mental health services, and information sessions regarding financial challenges. Legal education organizations have stepped up, too.
Legal educators are also stepping up for soon-to-be law graduates. A widely circulated paper written by 11 law professors, scholars, and legal education thought leaders, The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action, provides six emergency alternatives to an in-person bar exam and traditional licensing processes this July. Another paper, Secure Online High Stakes Testing: A Serious Alternative as Legal Education Moves Online aims to further explore one of those options – an online exam with secure remote-proctoring - and calls for immediate planning, evaluation, and testing of this option and all viable alternatives. (Full disclosure, I am a co-author of both of the above-noted papers.)
Those working papers, and the thoughtful writing of hundreds of legal educators in blogs, articles, listservs, and emails these last weeks, explore and call for swift, needed change in legal education and in attorney licensing. This makes sense. Analyzing problems and reasoning to logical conclusions are what lawyers do. When assisting clients in crisis, problem solving and leading, formally and informally, in our pre- and post- pandemic world, we study existing rules, gather facts and data and apply relevant rules to those facts, assessing policy and present and future ethical considerations; then, we carefully consider all reasonable solutions, and advocate for the best outcomes. And, sometimes the rules must change. “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” (Model Rules of Professional Conduct, Rule 3.1, emphasis added.)
Lawyers, educators, and organization leaders are doing just that –making good faith arguments for change, adapting grading and other policies in law school rules and proposing thoughtful alternatives to licensing rules that require in-person bar exams. Many jurisdictions have already cancelled this summer’s in-person bar exam. The National Conference of Bar Examiners has announced two fall exam dates. The ABA Board of Governors called on states to authorize emergency limited supervised law practice where bar exams have been cancelled. And, the LSAC just announced the implementation of an at-home LSAT.
As this pandemic pushes us to modify rules, at least temporarily, and because we cannot know certain key facts such as how long travel and public gatherings will be restricted, let us continue working together to: 1) analyze all viable options, 2) plan and implement alternatives that are most workable and desirable –for this summer, fall, and beyond – taking into account varying student needs in terms of health, safety and finances, and the differing needs of jurisdictions as they assess their resources, mandates to protect the public, and their service to many differently situated law graduates, and 3) continue collaboration after the crisis subsides to assess the efficacy of changes and see that what we learn from these times informs best practices for the future.
Law students are the future warriors for our democracy. They will be the leaders, problem solvers, advocates, and planners that our complex, nuanced, and now wounded world will need to get back on its feet. A beautiful silver lining in this destructive pandemic is watching legal educators, lawyers, licensing authorities, and legal education organizations lead by example, engaging in the civil exchange of ideas and information to determine the best alternatives for our future lawyers, and taking bold and thoughtful action now.