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Law360 (August 17, 2020, 5:53 PM EDT ) A group of law school graduates told Pennsylvania's highest court on Monday that ongoing delays and uncertainty surrounding the administration of the bar exam in the midst of a global pandemic represent an unconstitutional burden that warrants emergency admission to the practice.
Law Students For Equitable Responses to COVID-19 said that the threat of cyberattacks and technical glitches in the planned online administration of Pennsylvania's bar exam in October rendered the test an unreliable means of gauging a would-be attorney's competence as compared with a well-regulated emergency licensure system.
"To avoid violating the individual rights of October candidates to pursue their chosen lawful occupations as lawyers, this court must waive [the bar exam requirement] and offer emergency licensure to qualifying candidates," the group said in its petition.
The state's Board of Law Examiners announced in July that it was postponing that month's usual bar exam sitting in light of the pandemic and was instead moving ahead with plans for a scaled-back version of the test to be administered online over three days in October.
While the Pennsylvania Bar Association subsequently threw its support behind waiving the bar exam requirement and granting emergency diploma privilege to allow certain 2020 law graduates to begin practicing, Chief Justice Thomas Saylor earlier this month rejected the plan.
But while the bar association asked the high court to use its discretion to adopt a diploma privilege system in response to the pandemic, LSERC said in its petition on Monday that the state's continued reliance on the bar exam represented an infringement on the rights of law students to possess property and pursue their own happiness under the Pennsylvania Constitution.
"The hardships faced by recent law school graduates during the pandemic have created a unique set of circumstances that warrant a different licensing scheme for new attorneys in need of employment upon graduation in 2020," said Michael Engle, an attorney with Buchanan Ingersoll & Rooney PC representing the petitioners pro bono.
A representative from the Board of Law Examiners declined to comment on the petition when contacted on Monday afternoon.
The petition pointed to the extra costs that would-be attorneys have had to incur in the form of rescinded job offers, delayed hiring decisions from prospective employers, additional time spent taking exam preparation courses and the loss of their school-sponsored health insurance.
Citing complications that other states have experienced in attempting to administer their bar exams online, the group went on to say the test would not be an accurate reflection of a candidate's true competence as an attorney.
"In the case of October candidates, strict adherence to [the bar exam requirement] will fail to adequately protect the public's interest in competent legal representation because the reduced-question, remote October exam will yield unreliable measures of minimum competency," the group argued.
Law Students For Equitable Responses pointed in particular to a cyberattack launched in the middle of Michigan's online bar exam last month that left individuals unable to access the second portion of the test and forced the state's Supreme Court to extend the time allotted for the exam.
The group also pointed to Florida's decision on Sunday, with just three days' notice to candidates, that it was canceling its planned online bar exam out of concern that administering the test in a secure and reliable manner was "not technically feasible."
On top of security concerns with an online version of the exam, the petition raised concerns that some individuals could run into problems with their personal internet connections or that they wouldn't have a suitable place in their home to take the test.
The petitioners are represented by Michael Engle of Buchanan Ingersoll & Rooney PC and Louis Natali Jr. of the Temple University Beasley School of Law.
The case is In Re: the Petition of Law Students For Equitable Responses to COVID-19, case number 74 WM 2020, in the Pennsylvania Supreme Court.
--Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
