Law Schools

DC Bar Exam Manages To Screw Up Doing The Right Thing

The DC bar exam is a little different than other jurisdictions going online.

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UPDATE: A new June 10 order will allow applicants to receive refunds.

With a pandemic still out there and the prospect of being locked indoors with thousands of strangers for two days a daunting prospect, the District of Columbia bar examiners came to the conclusion that the planned September administration of the bar would be simply too dangerous. Instead, the jurisdiction announced that they’ll be scrapping that plan and offering an October exam to be administered remotely. This sounds like good news… but it’s not.

This is what Indiana and Michigan are already doing — in lieu of the usual Multistate exam — and is obviously the most responsible course of action assuming we’re going to stick with having a bar exam and not just blowing past that requirement and making serious reforms to law schools and attorney licensing.

Except, as the NCBE reminds us, they’re refusing to put in the modicum of effort required to offer the UBE online, meaning all of these jurisdictions considering online tests — including DC — will have to offer tests with scores that aren’t transferrable anywhere else. Other states could and should pass immediate reciprocity rules allowing those who pass online exams in 2020 to move, but common sense is fraught with apathy.

This all goes to the heart of what DC managed to get wrong about doing the right thing. Washington attorneys thrive on being admitted other places. Indeed, most folks don’t even take the DC bar exam, but instead waive in from other states, making the lack of portability fatal to this plan. For those who really are committed to only practicing in the District this doesn’t matter, but for the majority of applicants, going to a non-transferrable test is a dealbreaker and they’d be better off sitting out the 2020 exam and taking a different test later.

But the DC bar made this change while sticking to its commitment to not offer refunds. Applicants who get little to no value out of a non-transferrable test are simply out their $232. There’s a chance that a pending court order clarifying the move will see the light and let people get their refunds, but no one should hold their breath. UPDATE: DC is allowing applicants to transfer this fee to a later administration, which for many applicants defeats the purpose since they signed up to avoid having to wait until February in their home jurisdiction. A spokesperson tells us that the fee can be transferred to cover the cost of waiving in though which may salve some of those complaining that they’ve paid for an exam they never really wanted to have to take.

[UPDATE: Indeed, tipsters are pointing out that the bar examiners specifically waited until after the fees were non-refundable to announce that they’re junking the exam. Officials locked in people’s seats for the September exam on June 5 and news began to leak that the exam would move online on June 6. If there was never any intention of going forward with the September exam while DC continued to hold funds predicated on the representation that they would offer a portable exam, it raises serious ethical questions. I’ve been told by a spokesperson that this wasn’t the intention.]

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Like most things in life, it’s all about context. Michigan doesn’t need to refund anyone to go online because everyone taking the Michigan bar intends to practice primarily in Michigan. Early in the crisis, some speculated about taking bar exams in jurisdictions that they never intended to practice in just to get a portable score, but many states explicitly prohibit this sort of forum shopping — if you want a score from one of those states, you’re going to have to jump through the local practice hoops in those states.

But that’s not the space that DC occupies in the legal landscape. DC practitioners often work in surrounding states and attorneys from all over the country have valid reasons to also be admitted in DC. It’s the melting pot of attorney licenses. If it can’t afford portability then its bar exam is quite simply no longer the product that many applicants signed up for.

While there are those angry at the DC bar examiners for making online move, this is misplacing the anger a bit. It’s the right thing to do at this juncture. If the NCBE wants to get onboard with reality and produce an online test, that would solve everyone’s problems, but barring that — look, a pun! — jurisdictions going solo and online is a prudent move. At the same time, holding applicants hostage to a test after the value proposition has fundamentally changed is completely uncalled for. Both things can be true.

Just give people their money back if they don’t want to take an online exam.

UPDATE: There’s a petition demanding refunds.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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