Earlier today, the D.C. Committee on Admissions (COA) updated its Fall Bar Exam FAQs with a troubling and perplexing series of questions and answers. Taken together, they state that an examinee cannot sit for both D.C.’s October exam and the July or September Uniform Bar Exam (UBE) in another jurisdiction because of copyright restrictions imposed by the NCBE. The move further calls into question the reliability of the October exam.
Q: I want to get a UBE score, so I am also registered in New York. My job is in D.C. so I need to get admitted in D.C. Can I take both the UBE in New York and the remote exam in D.C. to make sure I get admitted in D.C.?
A: No. Pursuant to the NCBE conditions of use for the remote exam, we are not able to permit applicants to sit for the remote exam in October if they previously sat for one of the 2020 July – September bar exams.
Q: I am registered to take the exam in another jurisdiction, but I’m afraid they may cancel at the last minute. Is it okay to register for the D.C. exam?
A: Yes, you may register. However if you take the exam in the other jurisdiction you will not be able to take the exam in D.C. pursuant to the NCBE conditions of use for the remote exam.
Q: Why I am I not able to sit for both the September NY bar exam and the October DC bar exam, since they are administered at different times and I want to be licensed in both jurisdictions?
A: This is prohibited by the National Conference of Bar Examiners, the holders of the copyright to the exam materials.
This is a troubling move for many bar applicants, who have seen their lives upended over the past few months. As many now scramble for bar admission in any jurisdiction, in the hope of finding work anywhere in the country, this sort of restriction impairs their ability to remain afloat.
DP4DC is aware of several graduates who were registered and preparing for both the October D.C. exam and the July or September UBE in another jurisdiction. After New York and other jurisdictions announced that they would restrict the number of seats for their UBEs, many registered for the September UBE in D.C., which was subsequently cancelled and converted to a non-UBE exam in October.
Most of these dual-registered graduates cited concerns about additional cancellations, postponements, or practical impediments that might prevent them from succeeding in one of the two exams—treating one exam as a pandemic safety net. Many feared that they or a loved one might contract COVID-19, or that they would face economic hardship during the protracted wait for the October exam. Many also were concerned, and remain concerned, that D.C. may fail in its online administration of the exam.
Some hoped to retain the portability benefits of the UBE—its key selling point—while also pursuing admission in D.C. For many graduates, it seemed increasingly wise to seek admission in both New York and D.C. in the hope of finding work in either of the nation’s two largest legal markets. Others hoped merely to receive the benefit of their purchase, having been forced to pay for multiple bar exams in multiple jurisdictions anyway, given the vacillations and vicissitudes of each jurisdiction’s bar examiners.
Perplexingly, the NCBE would characteristically gleefully reap the gains from bar applicants sitting for multiple exams this fall. Instead, invoking its copyright over exam materials, the NCBE has chosen to forgo that benefit in favor of further burdening prospective examinees. It is hard to understand why a recent graduate would not be able to sit for both the UBE in one jurisdiction in July and a different, non-UBE exam in another jurisdiction in October.
The NCBE’s decision raises serious doubts about exam security. Specifically, one explanation for the NCBE’s decision is that the questions of the October exam, widely anticipated to be new and unique, will actually be recycled or closely replicated from the July or September exams. Because the NCBE ordinarily administers only a single exam, rather than three, during this time of year, it is not surprising that the NCBE would find themselves without sufficiently many distinct test questions.
However, if the October exam will be similar in content to the July or September exams, there will be profound challenges of exam security, as many prospective D.C. examinees have friends and classmates sitting for the July or September exams outside of D.C. Thus, as a measure of attorney competency, the online October exam may be even more wildly inaccurate and inequitable than predicted.
To the extent that concern over attorney competency is anything more than pretense, diploma privilege “plus” another means of ensuring competency, like requiring a brief period of supervised practice, might offer a superior solution to the October exam.
Alternatively, the NCBE may simply be continuing its tradition of jerking around recent law school graduates. Much of the anguish felt by recent graduates is directly attributable to the failures of the NCBE. Never have law school graduates had to fight so hard for their right to have a mere chance to work.
We call on the NCBE to explain itself. And, either way, we will continue to advocate for D.C. to do the right thing, and help our nation get back to work, quickly and safely.