By Renee Knake and Dave Fagundes

Law360 (June 30, 2020, 4:18 PM EDT )

Renee Knake

Dave Fagundes

The Texas bar exam is not easy even in the best of times. Since 1903, would-be Texas lawyers must navigate days of essay and multiple-choice questions that test numerous, often obscure, rules of law. The exam is usually administered in facilities across the state that pack hundreds of test-takers into crowded spaces. Even in a good year, one in five applicants fails.

Applicants preparing for the July 2020 exam have to undertake this gauntlet while also facing the risk that doing so exposes them to the potentially deadly coronavirus.

Taking the test in person, like studying, dining, worshiping or spectating in person, carries unacceptable risks for the examinees, the family members they will return to after sitting through the exam all day, and the public that encounters them. While the Texas bar has offered measures to reduce the transmission of the coronavirus during this summer's scheduled bar exam setting, social distancing and wearing masks indoors can only mitigate, not eliminate, the possibility of contracting or spreading the potentially deadly virus.

Not only does an in-person bar exam pose unacceptable health risks, there are other serious concerns at stake.

Most of these future lawyers emerged from three intense years of law school just as the novel coronavirus pandemic hit. Now, with libraries and law schools closed, bar applicants are relegated to studying alone, at home, with all of the distractions and loneliness that entails.

Some may be worried that they have been exposed, or reasonably fear exposure, to the coronavirus, or have friends or relatives who are sick or have died from COVID-19. Bar applicants with child care responsibilities or without the money for a decent Wi-Fi connection face particular challenges. In light of all this, failing this year's bar exam is more to be a reflection of coronavirus-related stressors than an indication of unfitness to practice law.

The good news is that there is a solution, called the diploma privilege, which would allow 2020 Texas law school graduates to receive their license to practice without passing the exam in light of these unique circumstances. The Supreme Court of Texas has often led the way on innovations like this during times of crisis. It extended filing deadlines and relaxed licensing requirements after Hurricanes Katrina and Harvey. In the midst of the novel coronavirus pandemic, the court has carried on with oral arguments via video when courthouses in D.C. and other states have shuttered.

We propose that the Texas Supreme Court join other states as early leaders in the effort to protect their future lawyers and the public by initiating a COVID-19 diploma privilege for this year.

Utah became the first to grant a diploma privilege due to COVID-19 back in April. Washington became the second in June and Oregon is the most recent to do so. (Wisconsin, it is worth noting, has granted a diploma privilege to students graduating from in-state schools for more than a century.) Other states, including Minnesota, are formally considering adoption. As Texas becomes one of America's coronavirus hot spots, this issue becomes all the more imperative.

In a recent study, "The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action," 11 law professors from across the nation chronicled the complications facing this year's law school graduates. Their conclusion?  A diploma privilege is far superior in these difficult times because it eases administrability and facilitates legal representation for the public who have nowhere else to turn to secure their basic legal needs.[1]

There have been other proposals to respond to the pandemic, but they are inadequate. 

First, some suggest postponing the July bar exam. But what would graduates do in the meantime? They cannot practice law, but they must pay the bills. 

Second, an online bar exam is unavailable, untested in Texas, and insecure. 

Third, a proposal to conduct the exam in groups of 10 or less is impractical. Who would supply the funding to administer such an inefficient process? 

Finally, no one knows what future health restrictions may emerge. Gov. Greg Abbott has recently ratcheted up protections as coronavirus cases spike across Texas.

Extraordinary problems warrant extraordinary solutions. Allowing the law class of 2020 diploma privilege in lieu of taking the Texas bar exam is a humane and logical response to protect the public and to accommodate the lived reality of law graduates who have faced difficulties like no other.

The Texas Supreme Court, a leader in access to justice, should allow them to practice without exposing themselves to the virus. Texas law schools should work with the court to ensure that these graduates honor the legal profession and, most importantly, the clients they serve as we strive to expand access to justice for all.­­­

Correction: An earlier version of this article misidentified the first state to grant a diploma privilege due to COVID-19. The error has been corrected.

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Renee Knake is a professor of law and the Joanne and Larry Doherty chair in legal ethics at the University of Houston.

Dave Fagundes is the Baker Botts LLP professor of law at the University of Houston.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559060.

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