Iowa Supreme Court rejected calls to stop in-person bar exam

Aspiring lawyers gathered in Des Moines on July 28 and July 29, for about eight hours each day, to take Iowa’s Uniform Bar Exam in person.

More than a dozen states, accounting for about two-thirds of exam takers, postponed or otherwise altered plans to administer the grueling two-day test that determines where attorneys can practice law.

However, the Iowa Supreme Court rejected calls to shift to an online exam or offer a limited “diploma privilege” so that graduates of the University of Iowa or Drake University law schools could practice in this state without passing the bar. Instead, the judicial branch’s Office of Professional Regulation took several steps to reduce the chance exam takers could spread COVID-19 to one another.

“OUR PRIORITY IS THE SAFETY OF THE EXAMINEES AND PROCTORS”

Leaders of the Iowa State Bar Association’s Young Lawyers Division (YLD) began advocating for alternatives to an in-person bar exam in May. They wrote to the high court again shortly after Chief Justice Susan Christensen ordered that the test would take place in person, other than the mandatory orientation session.

Responding on behalf of his colleagues, Supreme Court Justice Thomas Waterman assured the young attorneys that “our priority is the safety of the examinees and proctors.” Officials would enforce “detailed COVID-19 safety protocols developed in compliance with federal and state public health guidelines and in close consultation with experts at the Iowa Department of Public Health,” he said.

Waterman argued that passing a Uniform Bar Exam “helps ensure minimum competency through a test that has undergone rigorous development standards and statistical analysis,” and would give new lawyers a portable score “enabling them to get licensed in other UBE jurisdictions. By contrast, the remotely administered bar exams do not yield portable scores.”

As COVID-19 case counts, hospitalizations, and deaths continued to rise in Polk County in July, advocates kept pressing the matter.

“WE ARE SCARED FOR OUR HEALTH AND SAFETY”

Leaders of the bar association and its Young Lawyers Division had a conference call on July 21 to discuss a diploma privilege with Supreme Court Justices Waterman and Christopher McDonald, along with Office of Professional Regulation representatives.

Meanwhile, more than 500 people signed an online petition urging the Iowa Supreme Court and Iowa Board of Law Examiners to make the bar exam optional, as officials did in Wisconsin.

1. It is not safe to hold the Iowa bar examination.

Iowa was listed as a “red zone” in a document prepared for the White House Coronavirus Task Force leaked on July 17th, with over 100 cases per 100,000 people. Those numbers are highest in Polk County, where the bar exam is set to take place on July 28-29. On July 16th the Iowa Department of Public Health reported a record high of 879 positive test cases in 24 hours – the highest at any point since the COVID-19 pandemic began. 777 Iowans have died from this pandemic already.

The CDC reports that the highest risk of COVID-19 spreading at events is for large in-person gatherings where it is difficult to keep people at least 6 feet apart and attendees travel from outside the local area. The Iowa bar exam is set to occur as an event that has the highest risk of COVID-19 spread in one of the hardest-hit counties within a “red zone” state. While we have some guidance for exam day, we have no guidance for what mealtimes, bathroom breaks, registration, and any other interactions throughout the day will look like. There is evidence that masks are fairly effective in small gatherings outdoors, but we truly have no understanding of their effectiveness in a room with 200+ people for 16 hours over the course of 2 days.

2. Iowa’s law schools train competent attorneys.

Iowa Law has an over 95% pass rate for the Iowa bar exam. Drake Law has an 84% pass rate. These institutions are accredited by the American Bar Association and graduate the overwhelming majority of the lawyers that practice in Iowa. To the extent that the bar exam actually determines the competency of lawyers to practice, the fact is that Iowa’s legal institutions already train competent lawyers for our state. Only a small handful of graduates from Iowa’s legal institutions do not pass the Iowa bar exam. The competency of our profession in the state will not suffer without the 2020 exam and the risks of the COVID-19 pandemic are simply too high.

3. An optional bar exam with diploma privilege is the only true option in the current environment.

Our jobs futures are uncertain, our student loans are coming due, and many of us are living off of credit cards to try and make it to our first paycheck after three years as students. Postponing the exam simply is not an option for us – we don’t have the finances to live longer than we already will have to without work. Postponing the exam is a theoretical option, not an economically possible one. Additionally, there is no evidence that the COVID-19 pandemic will get better in the coming months, and rescheduling is likely to be a waste of time.

Some students intend to practice only in Iowa, and others intend to transfer their scores to other jurisdictions to begin practice or want to have practice flexibility in the coming years. Allow those students who would like to take the exam as scheduled the opportunity to do so, and grant diploma privilege to all of the Iowa Law and Drake Law graduates. Implementing the Wisconsin model in Iowa would inherently make the exam more safe for those who have to take it by cutting down the number of test takers significantly.

Please grant 2020 Drake Law and Iowa Law graduates diploma privilege, and make the July 2020 bar exam optional. We are scared for our health and safety and the health and safety of our loved ones.

“THE STATE OF IOWA HAS PUT GRADUATES IN THIS UNTENABLE POSITION”

Five University of Iowa law school professors argued in a guest commentary,

Of Iowa’s 99 counties, Polk County has the greatest number of diagnosed COVID-19 cases and the greatest number of deaths.[…]

The state knows it’s less than ideal to hold the exam in person: Those administering the bar exam won’t accept your application or materials in person. The portions of the application and supporting materials that must be notarized will be notarized remotely. The exam orientation, conducted the day before the exam, will be online. And should you pass the exam and be approved for admission to the bar, they likely won’t swear you in, in person. Too dangerous. […]

Our former students paid for law school with loans that are about to come due. They are expected – and need — to study full-time for the bar exam. Graduates are living on credit, bar loans, or the generosity of family and friends until they get their first paycheck in three years.

But those who have a job may not be able to start working or may have to take a lower salary if they aren’t admitted to a bar. Some graduates will lose their jobs because they aren’t yet licensed. […]

The State of Iowa has put graduates in this untenable position, which jeopardizes their physical health, their emotional well-being, their financial security, and their ability to practice law now or in the future. And Iowa can relieve the Class of 2020 of these burdens by implementing a limited diploma privilege for graduates of University of Iowa College of Law and Drake University Law.

These are extraordinary and unprecedented times: A limited diploma privilege would greatly decrease the number of individuals who would sit the bar exam on July 28-29, making it safer for everyone involved, and would allow graduates of in-state schools to begin practicing right away.

If the judicial branch had approved the diploma privilege, only law school graduates planning to practice in other states would have needed to come to Des Moines for the two-day exam.

“IOWANS DESERVE HIGH QUALITY LEGAL REPRESENTATION”

University of Iowa Law School Dean Kevin Washburn emailed the petition to Iowa Supreme Court justices the week before the exam was scheduled to take place. Justice Waterman wrote back the following day, saying the high court had decided to proceed with an in-person exam after “careful deliberation.” He argued that “reasonable and appropriate safety protocols are in place,” and said any applicant with concerns would be allowed to postpone taking the bar exam until the next date in February 2021.

Waterman argued that requiring passage of the exam “protects the public by helping to ensure minimal professional competency of licensed attorneys. […] Iowans deserve high quality legal representation.” Moreover, Iowa would be able to ensure appropriate distancing within the exam room, unlike some states with “much larger numbers of applicants.”

Dear Dean Washburn,

On behalf of the full court, I am replying to your email of yesterday. As always, we value your input, and that of your graduates and faculty, especially in these challenging times. It is the Iowa Supreme Court’s responsibility to regulate the legal profession in Iowa and the court has exclusive responsibility for the admission of attorneys to practice law in our state. We take these responsibilities very seriously. We must be sure that Iowa attorneys are highly qualified and of high character. Lawyers licensed to practice law in Iowa must be fully prepared to provide fair and equal justice.

Please let your graduates know that the Board of Law Examiners (BLE) and the Office of Professional Responsibility (OPR) will proceed with our state’s Uniform Bar Exam (UBE) in person, as scheduled next week. The decision to proceed with the examination was made in consultation with the Iowa Department of Public Health (IDPH). After careful deliberation, the BLE, OPR and our court concluded the bar exam could be administered in Iowa while protecting the safety of the examinees and proctors. We can assure you that reasonable and appropriate safety protocols are in place, carefully developed in consultation with public health officials and in accord with CDC guidelines. In particular, the test site is large enough for social distancing of the 172 examinees. We recognize that some other states are not proceeding with an in-person exam next week. In many cases, they have much larger numbers of applicants making it logistically more difficult to comply with applicable safety guidelines. Also, we emphasize that anyone who has a concern about taking the exam next week for any reason may postpone taking the exam, at no cost, until the next administration in February.

We respectfully reiterate our decision not to adopt a one-time diploma privilege for the 2020 graduates of the University of Iowa and Drake law schools. The UBE protects the public by helping to ensure minimal professional competency of licensed attorneys. When we examined the issue of a diploma privilege six years ago, we found that while some in the legal community favored a diploma privilege, the overwhelming view of the public (i.e., those who are not lawyers) favored retaining the bar exam. After three rigorous years of law school, studying for the bar exam is an important final step to becoming an Iowa lawyer. Iowans deserve high quality legal representation. As the petition points out, most applicants pass the bar exam, and we expect that will occur again this year. However, the bar exam serves an important purpose in identifying those applicants who may not be ready to practice. Notwithstanding the Covid-19 pandemic, our neighboring states of Illinois, Minnesota, Nebraska and Missouri and other jurisdictions have declined to adopt a diploma privilege this summer.

Over the last few months, we have received many thoughtful communications regarding the July 2020 bar exam. Graduates taking the exam should be assured that we have carefully considered those communications on all sides of the issues and weighed all the available alternatives. Although the decision is difficult, we have concluded that a waiver of the bar exam requirement is not in the best interests of the legal profession or the public.

Sincerely,
Thomas D. Waterman
Justice, Iowa Supreme Court
1111 E. Court Avenue
Des Moines, IA 50319
515-348-4962
Thomas.Waterman@iowacourts.gov

BAR EXAM LOGISTICS

While 195 people were registered to take this summer’s bar exam as of early June, and 172 were registered a week prior to the exam (according to Waterman), only 162 people ended up sitting for two days in Des Moines this past week.

Applicants had to sign this code of conduct, which laid out many protocols such as mandatory face coverings throughout the exam and temperature screenings before each session.

Orientation for the exam happened online on July 27. I sought further information about mitigation practices on the subsequent days, such as how meals and bathroom breaks were handled as well as social distancing in the exam rooms. Steve Davis, communications director for the judicial branch, explained via email that the 162 applicants were seated in three testing areas.

There were two large ballrooms with separate entrances and screening areas for each. There was also a completely separate testing area on site for applicants requiring testing accommodations. 100 applicants tested in a 12,020 square foot room, and 55 applicants test in a 7,347 square foot room. Applicants were seated one person seated in the middle of an 8-foot table. The distance between the tables was 6 feet from the back of one table to the front of the table immediately behind it. Each applicant was seated in an aisle seat and applicants were only permitted to travel down the aisle that was immediately adjacent to their testing station. It is important to note that everyone was required to wear a face mask over their noses and mouths at all times in the conference center. During the exam, only a maximum of four applicants were permitted to use the restroom at a time in the largest room by checking out. Only two applicants at a time were permitted to check out to use the restroom in the smaller room.

We released applicants for lunch. Applicants could eat on site in the large atrium area of the hotel or outside. Many had hotel rooms, and others may have left the premises during the lunch break. They completed another health screening form after returning from lunch each day. Each testing room was divided up into three screening groups, and the entry into the building was controlled to prevent too many people from being in the screening area at once. There were clear directional arrows and marks on the foyer floors to ensure social distancing throughout that process.

From this non-lawyer’s perspective, a limited diploma privilege would have been an appropriate step to reduce the risk of COVID-19 transmission and the stress on recent graduates, while allowing those who need a portable score to take the exam in person. That said, I am hopeful that the layout of the rooms and the mandatory mask policy prevented the Iowa bar exam from becoming a super-spreading event in Polk County. I would welcome feedback from those who took the test.

Torey Cuellar, the president of the Young Lawyers Division, told Bleeding Heartland on July 29 that the group “plans to advocate for diploma privilege as long as the coronavirus poses a threat to safe testing, which may very well include the February 2021 exam. Any notification of issues or illness stemming from the exam would be helpful.”

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