By Nathan Hale

Law360 (July 1, 2020, 10:58 PM EDT ) As Florida grapples with a dramatic upswing in COVID-19 cases, the Florida Board of Bar Examiners said Wednesday that it is canceling the in-person general bar exam scheduled for later this month and will instead administer an online exam on Aug. 18.

As recently as Monday, the board indicated to Law360 it was staying the course with plans to hold the general bar exam on July 28 and July 29 at locations in Tampa and Orlando, despite growing calls for alternative options in the form of online petitions and statements from public leaders.

Ultimately, however, recent developments — including several single-day highs for new coronavirus cases in the state and a rollback of reopening efforts — drove the board to change course.

The board's executive director, Michele A. Gavagni, noted in an email Wednesday that the board said in May that the exam would be administered in-person with additional safety protocols recommended by the Florida Department of Health and medical experts but that it would continue to monitor the situation and might consider other options.

"As you know from the numbers regarding the COVID-19 pandemic here in Florida, those numbers have changed greatly but not in the direction that we hoped they would be going by now," she said. "As a result, the online examination was considered and approved today by the Supreme Court of Florida."

The changes announced Wednesday were applauded by law school deans at the University of Florida and the University of Miami, who had joined with their peers at Florida's 10 other accredited law schools in asking the board in April to consider alternatives. Their suggestions included allowing students to seek admission to the bar after completing a period of supervised practice, providing additional test dates, or administering the test at law schools to reduce travel and large gatherings at a given test site.

"I think back in May, when they decided to keep the in-person exam at the end of July, that was the best decision at the time, and as circumstances changed I really applaud the Board of Bar Examiners and Florida Supreme Court with rethinking and coming up with this really creative and elegant solution," Laura Rosenbury, dean of the University of Florida's Levin College of Law, told Law360.

Rosenbury said that on the whole the University of Florida's graduates did not want to delay getting started with their careers but at the same time were focused on their safety.

"This solution maintains the timeliness of the exam administration while eliminating the risk of in-person testing," she said.

Anthony E. Varona, dean of the University of Miami School of Law, shared similar reactions, telling Law360 that Wednesday's decision was met with "great relief" from many recent graduates, including a number with immunocompromising health conditions who were wary of the logistics of an in-person exam later this month.

"The BBE leaders listened to those of us who reached out to them with concerns, paid attention to the epidemiologists advising a different approach, and monitored the changing conditions with COVID-19 spread and infectiousness nationally and in Florida," Varona said in an email. "They made the right call."

Varona added there are several questions about the August exam that still need to be answered but the board has made assurances additional information will be forthcoming.

Miami native Nicolas J. Alvarez, who said he graduated from the University of South Carolina School of Law this year and was planning to take the bar exam in Orlando this month, also applauded the shift online but told Law360 that he and other bar applicants have several lingering worries.

He said other states have experienced technical issues making the leap online and wonders whether the Florida board will be able to achieve a smooth transition in just six weeks. He also raised concerns about challenges for applicants who do not have home access to high-speed internet and said it is unclear if the August exam will focus strictly on Florida law or have a multistate scope.

"While we understand that the FBBE, and many other jurisdictions, are dealing with something that has never been dealt with before, there are still substantial concerns," Alvarez said.

For him, a better course of action would have been diploma privilege — an option that would allow law school graduates to practice law without taking the exam — or prospective licenses contingent on continuing legal education hours in order to gain full licensure, Alvarez said.

In place of the traditional two-day, in-person exam, the board said it will administer an online exam consisting of 100 multiple-choice questions and three essay questions. Any subject traditionally included in Part A or Part B of the general bar exam may be included in the multiple-choice or essay sections, or both.

The University of Florida's Rosenbury called the format an "excellent solution" given the current constraints, saying that it appears the test subjects will not be changed, so the studying students have done over the past two months should still prepare them well.

Applicants who take the test during this cycle will not be required to take the Multistate Bar Examination to establish technical competence, the board said. A scaled score of 136 on the August bar exam and a passing score on the Multistate Professional Responsibility Examination will be considered passing marks.

Applicants who have passed only one part of the general bar exam will have to pass the August 2020 exam to demonstrate technical competence, the board said.

Test-takers will bear responsibility for making sure they have the necessary technology, including a computer with a webcam and internet to allow for proctors to monitor them, the board said. Applicants will also have to install or update required software from the board's vendor, ILG.

The board said that most applicants had already paid a laptop fee and should not incur any additional fees for the August exam, but applicants who had opted to handwrite their essays will be required to pay the laptop fee.

The board also said it will waive fees for applicants who decide to postpone taking the test until the next time the general bar examination is administered, and those applicants can apply fees they already paid to the future test. It also extended the deadline to apply for test accommodations under the Americans with Disabilities Act until July 10.

Other states have so far chosen to either delay their July bar exams until later in the year, provide a virtual bar exam in July, or offer diploma privilege to law school graduates.

--Additional reporting by Aebra Coe. Editing by Daniel King.

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