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Front Page - Friday, April 24, 2020

Viral detour for law grads

Bar exam dates in limbo, interrupting familiar career paths

As Torrey Feldman began her last semester of law school in January, 2020 lay before her like a crisp set of blueprints.

She would first graduate in May, then prepare for the bar exam, which she would take in July.

After a brief vacation, Feldman would begin working at Baker Donelson in Chattanooga – where she served as a summer associate in 2018 and 2019 – while awaiting the results of the exam.

After learning she had passed, she would be sworn in and begin working as a first-year associate in Baker Donelson’s new litigators program – a job the firm offered her in September.

News about the appearance of the coronavirus was trickling out of China as the new year began, but no cases had been reported in the U.S. By the end of March, however, the nation was leading the world in confirmed cases, and states were issuing stay-at-home directives, putting a kink in Feldman’s plans.

With public gatherings banned in Tennessee and other jurisdictions, the bar exam was off the table, leaving Feldman and, as The Associated Press recently reported, 46,000 of her fellow 3Ls across the country in an indeterminate state.

“Thankfully, I’m one of the few law students who has a job lined up, but in general this is adding to everyone’s uncertainty,” Feldman says by phone from American University Washington College of Law in Washington, D.C., where she’s packing for an early move to Chattanooga.

The organizations that administer the bar exam throughout the U.S. are working to provide some certainty. The National Conference of Bar Examiners, which develops the test components most states use (including the Multistate Bar Exam, the Multistate Essay Exam and the Multistate Performance Test, which comprise the Uniform Bar Exam), is ready to provide the materials for the traditional July exam, but also is waiting to see if enough states will choose to offer the test before deciding whether or not it will administer it.

“The NCBE’s role is not to evaluate or determine whether testing can be carried out safely; that decision is up to each jurisdiction to make based on federal, state and local health orders for isolation or distancing,” says Valerie Hickman, communications coordinator for the NCBE.

Ongoing concerns about social distancing during the examination lie at the heart of the decision each jurisdiction must make. The AP in its article says this choice is “fraught with difficulties,” as many venues are currently off limits.

Other options, such as taking the test online at home, also are “rife with challenges,” The Associated Press reports, citing a spokesperson for the Ohio Supreme Court, which administers the test in that state.

Chattanooga native Erin Steelman, who’s on track to graduate from the University of Tennessee College of Law in May, is concerned about social distancing during the administration of the exam. She also says there are practical ways for the state to work around the issue.

“Convention centers seem to be a viable option,” she says. “Additionally, I think Tennessee should hire more exam proctors so examinees can be split into smaller groups. Finally, I think examinees should be required to wear masks to reduce the risk of spreading the virus.”

Steelman might have the opportunity to see how her home state handles social distancing during the administration of the exam, as the Tennessee Supreme Court has joined seven other jurisdictions in deciding to move forward with the July 28-29 bar examination.

However, whether or not the support of eight states is enough to convince the NCBE to distribute the materials remains up in the air, as the organization is waiting until May 5 to announce its decision.

“In terms of what enough interest would be, it would be premature to go into more detail while jurisdictions are still making their decisions,” Hickman adds.

All jurisdictions have the option to postpone the administration of their bar exam until later this year, and the NCBE has said it will make additional materials available for two unprecedented fall administrations: Sept. 9-10 and Sept. 30-Oct. 1.

On April 17, the Tennessee Supreme Court announced its decision to add the Sept. 30-Oct. 1 date, giving law students a choice between the July and October exams.

“The October exam provides an alternative to our July applicants who might be wary of large public gatherings,” says Lisa Perlen, executive director of the Tennessee Board of Law Examiners. “It also serves as a backup date in the event the NCBE does not deploy a July exam or if orders limiting larger gatherings remain in place.”

The July exam would be given in Knoxville, Memphis and Nashville, while the October exam will be offered in Knoxville only.

Tennessee’s immediate neighbor to the south, Georgia, is one of 11 states that as of April 21 has canceled the July test and rescheduled the administration of the bar exam until the fall, according to the NCBE website (www.ncbex.org). This still leaves more than half of the jurisdictions in which the bar exam is administered weighing their options.

Two more wrinkles will appear on this complex tapestry if the NCBE decides to not distribute test materials for the July exam. The first entails the timing involved in studying for the bar exam – a rigorous process Feldman expects will require her full attention.

“No one knows when we’ll be able to take the bar, so should we gear up for prep now or wait until later so we’ll remember the things we’ve learned when it’s time to take the exam?” she asks. “The reason firms don’t start you until after you’ve taken the bar is so you’re not working while you’re preparing for the exam.”

Steelman, who’s accepted an offer to practice civil litigation at Miller & Martin in Chattanooga, voices the same concern. “I’ve been warned that this summer won’t be fun, but I’ve also been reminded that the studying is manageable and practicing law is worth it.”

The second wrinkle involves how law firms will utilize the recent graduates they have already hired. Generally, these aspiring attorneys work on projects to support other lawyers but are not technically practicing law, meaning they’re not advising clients, negotiating with another attorney, or appearing in court.

The supervised practice rule permits this activity in Tennessee. The rule (Tennessee Supreme Court Rule 7, Section 10.04) allows a law school graduate who’s applied for the bar exam to practice under the supervision of a Tennessee lawyer until they receive their bar exam results, which for the July exam typically come out in October.

Paula Schaefer, associate dean for academic affairs and professor of law at UT, says few law school graduates have taken advantage of this rule in the past because they’re usually busy studying for the bar exam in the summer.

“After that, it doesn’t take long for bar results to come out,” Schaefer adds. “But in a year when we don’t know if or when there will be a bar exam, this rule becomes incredibly important.”

To accommodate students who might not take the bar exam until this fall, the Tennessee Supreme Court on April 2 extended the time during which bar exam applicants are able to engage in supervised practice until Nov. 15, 2021.

Schaefer says recent law school graduates and law firms in Tennessee are fortunate the state’s Supreme Court gives bar applicants the ability to practice under this rule.

“While most graduates in the past did not use this rule, I think many of them will be excited to learn about it and use it this year,” she says. “Even though this is a scary and uncertain time, this rule opens the possibility of practicing for many months, even if the bar exam is not given in July.”

To educate Tennessee judges, attorneys and 3L students about supervised practice and enable them to take advantage of it, Schaefer is joining her counterpart at the University of Memphis, Jodi Wilson, and Brad Morgan, director of career services at UT, to offer a dual credit CLE focused on the rule.

The CLE will address the rule’s requirements as well as the legal and professional conduct obligations of supervising attorneys acting under it. Schaefer and her colleagues will also discuss the Tennessee Supreme Court’s recent temporary modification of the rule for spring 2020 law school graduates.

The CLE will take place Wednesday, May 20, beginning at 2 p.m. EDT via Zoom Pro. Attorneys and judges can register by emailing Micki Fox (mfox2@utk.edu) with “Supervised Practice CLE” in the subject line. Law students can register by emailing Jennifer Garren (jgarren1@utk.edu) with “Supervised Practice CLE for Students” in the subject line.

“We hope the CLE will help lawyers and graduates make a plan for how supervised practice can provide a safety net, regardless of when a spring 2020 graduate takes the bar exam,” Schaefer says.

Although Feldman and Steelman face uncertainty in the coming months, they both believe the world will someday arrive at the far end of the pandemic and their careers and lives will move forward. It’s a time both soon-to-be-graduates are anticipating.

“I’m not looking forward to the bar exam, but I am looking forward to a fulfilling career,” Steelman says. “And I plan to make the best of it.”