On April 27, 2020, the California Supreme Court partially adopted recommendations from the California State Bar Board of Trustees and moved the California Bar Exam to September 9 and 10, 2020. In a three page letter, the Supreme Court also ordered that the State Bar “make every effort possible to administer that examination online with remote and/or electronic proctoring.” The Court’s unprecedented order raises a lot of questions, some of which we will discuss below.

1) How will the September 2020 California Bar Exam be administered online?

The California Bar Exam has never been administered online. It is always administered in large convention centers with proctors keeping a close eye on exam takers and roaming the rooms to make sure nothing untoward is occurring. How can the exam be administered online securely and prevent cheating?

One possibility is to require exam takers to use laptops with webcams and microphones turned on to monitor test takers. Several variations of the service exist in university settings. ExamSoft, the software company employed by the California Bar Exam, in fact already offers this technology. But this is not just any course or exam, it is the California Bar Exam, perhaps the most important and grueling test of a person’s lifetime.

Can we be sure that the software would be completely secure? For example, would the software prevent someone from referencing notes? Can the examiners effectively monitor more than 12,000 remote test takers?

With strict timing of each portion of the exam, it’s unclear if any type of cheating would really help. If someone is not prepared for the exam, no amount of notes will give them all of the information they need to know in the short amount of time provided. Unprepared students will still miss issues or encounter other common problems on the essay section. Plus the risk of getting flagged and caught – and being shut out of your entire legal career as a severe punishment – would be too great for most people to try.

Nonetheless, the bar examiners will take the security issue very seriously in approving an online platform. In addition, what about test takers who do not have an advanced laptop? What about those who prefer to hand write? Or need accommodations?

Normally these technological changes take years of planning and testing. The State Bar has 4.5 months to figure it out. Will it be possible? Absolutely. Will it be easy? Definitely not.

2) Could California ditch the multiple choice (MBE) portion of the exam?

Moving the written portion of the California Bar Exam online will be a daunting task, but at least it is one that the State Bar itself can control. But what about the multiple choice (MBE) portion of the exam? This portion is administered by the National Conference of Bar Examiners (NCBE), not the California State Bar, and any online administration must be organized by the NCBE.

The State Bar, in a April 15, 2020 letter to the Supreme Court, acknowledged that “to fully administer the bar examination online [with the MBE] requires the cooperation of NCBE.” It noted that the NCBE is “actively consulting with outside testing, technology, and exam security experts to evaluate alternative methods of testing, including options such as online, remote-proctored testing, if the traditional group setting must be canceled or modified.” Importantly, the State Bar emphasized that the process of administering the MBE online was entirely in the hands of the NCBE.

Without full confidence that the NCBE can step up to the plate and develop a secure online MBE in time, the State Bar considered ditching the MBE entirely. In footnote 2 of its letter to the Supreme Court, the State Bar ultimately declined to recommend this option to the Supreme Court, noting:

One option considered during the State Bar’s study process included the possibility of administering only the California-specific written portion of the California Bar Exam in an online format, foregoing the MBE. However, following a discussion with the State Bar’s psychometrician the Bar was convinced that both the written component and the MBE must be administered and graded to ensure the integrity of the examination, and that the scaled scoring is valid and reliable.

The State Bar instead recommended that the Supreme Court allow it to “conven[e] a working group to study the development of a provisional certification program, under which eligible individuals would receive certification to be permitted to work under the supervision of a licensed California attorney.” The working group would develop a provisional certification program to be ready if the NCBE cannot deliver an online MBE.

However, in the April 27 letter response, the Supreme Court declined to grant the State Bar’s request for a working group to study provisional certification. In fact, it refused to discuss provisional certification at all, only noting that “[t]he court will continue to explore other options as circumstances develop or change.”

Instead, the Supreme Court emphasized that the State Bar make “every effort possible” to administer the bar exam online. This was the most important and first part of its order. In a separate paragraph, it asked that the bar examiners work with the NCBE “to facilitate the online administration of the [MBE].” Notably, the Supreme Court did not make the MBE a requirement to proceed with the exam.

If the NCBE fails to provide an online MBE option, could the State Bar ultimately revisit the idea of ditching the MBE? Perhaps. Ditching the MBE has been discussed for some time and advocated by prominent law school faculty. This is because, unlike the written portion, the MBE has very little application to the actual practice of law.

The most likely outcome is that the NCBE, under pressure, will find a way to develop an online option for the MBE. But what happens if this does not work out, which is a real possibility? The Supreme Court declined to grant the State Bar’s request for a working group on provisional certification. Will the State Bar then move ahead with the written portion and ditch the MBE? It will be interesting to see how things develop.

3) What happened to the diploma privilege movement?

Many law students and several prominent law school deans proposed cancelling the upcoming California Bar Exam entirely and issuing either temporary or permanent bar exam licenses. In response, licensed attorneys vehemently pushed back at the idea.

Ultimately, the California Supreme Court did not discuss provisional certification and declined to grant the State Bar’s request for a working group to study it. Instead, the Court noted that it “will continue to explore other options as circumstances develop or change.”

If the State Bar and/or NCBE are unable to deliver an online option in time for the September 2020 examination, it is possible that the idea of provisional certification will be revisited. But this will be a difficult conversation because option has several issues.

First, what about the thousands of repeat takers, foreign lawyers, and out of state attorneys who need to take the exam? What do we do about them? The provisional certification option doesn’t seem to have a good answer.

Second, if provisional certification is not permanent, and only temporary until the February 2020 exam, the extra five month delay will be entirely disruptive. Careers will begin in September, only to be put on hold in February. Cases and clients will be abandoned for several months. Employers might be hesitant to hire someone who will begin employment, then take two months off for the bar exam and wait several more months for results.

The Supreme Court likely considered these issues when it urged the State Bar to “make every effort possible” to administer the September 2020 exam.

4) What should we be doing right now? Prepare for the September 2020 California Bar Exam!

So what now? How should you use this time in quarantine, with the bar exam 4 months away? We recommend getting started on studying for the September 2020 bar exam right away. Now.

It is NEVER too early to study for the bar. Most attorneys will tell you that the normal two month study period is rushed. That they never felt like they had enough time to prepare. You have 6 more weeks than they did. The extra time is a gift. Use it to study and you will be thankful in September!

Begin practicing essays now. California Bar Exam essays take some time to learn. If you are a BarEssays member, choose a couple essays a day and practice them open book. Then compare your essay to the various scored examples in the BarEssays database to see how you are doing. Study the graded examples closely. Does your practice essay look like a 55? A 65? A 75? Did you recognize all of the issues that the grader wanted? Is your IRAC on par with the high scoring essays? Keep doing this every day. After one month, you will see marketed improvement.

Use this opportunity at home to get ahead for September. Begin today.