The dilemma in front of the seven Oregon Supreme Court justices boiled down to whether they should side with future lawyers or side with the public.
Guess whom the majority chose?
In a 4-3 vote, the Oregon Supreme Court opted to lift the requirement this year that law school graduates pass the state’s bar exam in order to practice law, as Willamette Week’s Nigel Jaquiss reported. Instead, anyone graduating from Oregon’s three law schools who was planning to take the July exam can simply skip the test and be declared competent to practice law.
The decision – backed by Chief Justice Martha Walters and Justices Meagan Flynn, Lynn Nakamoto and Adrienne Nelson – comes at the behest of the deans of Oregon’s three law schools and graduating law students amid concerns about taking exams during the coronavirus pandemic. In a letter to the justices, the law school deans for Lewis & Clark, Willamette University and the University of Oregon acknowledged plans to offer the exam in multiple locations to ensure physical distancing. But with coronavirus cases rising, they argued, the more prudent approach would be to recognize students’ diplomas as an alternative to passing the bar exam – a change that the Supreme Court was statutorily authorized to make. The deans also noted the unprecedented challenges caused by COVID-19, as students juggled online learning with personal responsibilities and job losses, all under the stress of a public health pandemic.
Certainly, the challenges of the past few months are undeniable. Students have been shortchanged in the kind of education they received and expectations necessarily must change. But by erasing the exam as a requirement to practice law, the justices are granting a long-term privilege to address a temporary problem that is fixable by other means.
It’s important to recognize that the bar exam is a licensing test, and licensing of professionals – whether for attorneys, teachers, electricians or others – exists to protect the public. A state license conveys to Oregonians that a professional has earned the credentials and demonstrated the competence to meet minimum standards. Members of the public rely on this basic level of vetting in making decisions about whom to hire. Trustworthy information is critical for Oregonians who, when it comes to legal conflicts, will likely have only one shot to make their case.
And the bar exam isn’t a mere formality – nor is it a cakewalk. It is a rigorous test to determine whether someone who has completed law school has the knowledge and basic skills to represent members of the public. In 2019, one out of four people taking the July bar exam failed, according to the Oregon State Bar. Some years, as many as 42% of test takers have failed. How many of the roughly 500 people planning to take the test this year would have failed?
This relaxing of requirements is especially unnecessary considering that the full court – including Justices Tom Balmer, Rebecca Duncan and Chris Garrett – authorized an online version of the test and agreed to lower the score needed to pass the exam this year. While not ideal, such an approach at least recognizes the value in asking graduates to show some mastery of the law before they can practice it.
With this decision, the court and the Oregon State Bar should at the very least ensure transparency surrounding this change. Lawyers who are admitted to the bar based on their diploma should have to disclose to clients that they did not take the bar exam. In addition, the Oregon State Bar should include a notation in its public membership directory indicating whether someone has been admitted to the bar based on their diploma. And it should make clear that it is continuing to conduct the character and fitness reviews required for admittance to the bar.
Such transparency benefits not only the public but also those 2020 law school graduates who decide to take the exam anyway. Because this change only affects Oregon, graduates wanting to qualify for multi-state bar admission must still take the traditional exam. At least in some states, standards still count for something.