Credit: Pho-to courtesy of University of Montana

A group of recent Montana law school graduates is asking the state Supreme Court to license them without taking a required exam, saying they’re worried about contracting or contributing to the spread of the coronavirus if they take the test in person later this month. 

The request goes beyond what the Montana Supreme Court ordered last month to accommodate people registered for the bar exam — the test used to license attorneys to practice — in Missoula July 28 and 29 who said they were unable or unwilling to take the test because of the pandemic. 

“In the interest of public health and safety, Petitioners respectfully request that additional emergency changes be made to the Rules for Admission to the Bar of Montana,” the petition, filed Thursday, said. “The provisional licensure rule ordered by this Court in June 2020 was designed to provide temporary licensing for a few candidates who would be unable to sit for the exam … However, it now appears that the risks of a two-day in-person bar exam are significant for everyone, necessitating a more comprehensive solution.”

In the earlier ruling, the court said people registered to take the test could skip the July exam and be provisionally licensed until after the next bar exam in February. To be provisionally licensed, they would have to meet certain requirements, like already having been deemed fit to practice law by the Montana Commission on Character and Fitness. 

But in the new request, 62 graduates from the 2020 University of Montana Alexander Blewett III School of Law graduating class said they want the court to grant applicants who are unwilling or unable to take the bar exam in July “emergency diploma privilege,” meaning they would be exempt from having to take the exam in the future to continue practicing law in Montana. 

They would also have had to score at least 80 on the Multistate Professional Responsibility Exam, another test aspiring lawyers have to take, in addition to having been deemed fit. 

A bar exam would still be required for those who want to practice in a different state. But having fewer test takers in person because of the diploma privilege would reduce the risk of infection for them, the petitioners said. 

The filing argues the change would allow them to minimize infection risk to themselves and others without having to take on the hardship of having to study for the exam in the future while also working as a lawyer. 

“[Petitioners] have been planning for the opportunity to join the legal profession in the same way so many others have — by passing a bar exam. They have expected to take a bar exam since the moment they applied to law school. They just did not anticipate having to do so in person during a global pandemic,” they said. “For those who intend to practice law in Montana, diploma privilege eliminates all risks of an in-person exam. It allows an applicant to turn to the important work of being a lawyer and serving the public without having to stop at some unknown point in the future and focus on the bar exam.”

Some individual petitioners, in unnamed statements, said they were pregnant and worried about potential negative health effects of the virus to a fetus. Another said they had a child to care for and an unemployed spouse. They needed to work now, and wouldn’t be able to juggle the bar exam in the future. 

More than 80 lawyers in Montana signed the petition in support. 

The state Supreme Court also on Thursday ordered the State Bar of Montana and/or the Montana Board of Bar Examiners to respond to the petition by Monday. 

The Montana Board of Bar Examiners administers the test, with the State Bar of Montana providing administrative support to the board and assistance in administering the test. 

“The Montana Board of Bar Examiners is carefully monitoring the situation with respect to COVID-19, and supported a previous effort to allow examinees to delay taking the July bar exam while receiving a provisional Montana law license until after the February bar exam,” said state Board of Bar Examiners Chair Gary Bjelland in a statement. “The Montana Supreme Court agreed with that proposal. We will continue to consult with local health authorities in order to follow all state and local health guidance in connection with the July 2020 exam. We received a copy of the latest request of a group of bar applicants. We are currently reviewing it and expect to file a comment by 5 p.m. Monday as requested by the Supreme Court.”

For the test, administrators will take temperatures of examinees and make them sit at individual tables appropriately separated to reduce the risk of transmission, the petitioners said. Still, with test takers coming from other states and across Montana, they doubted the administrators’ ability to protect them. 

Montana isn’t the first state to grapple with whether to administer the test, or what accommodations to make, during the COVID-19 pandemic. The petition said states including Washington, Oregon and Utah have made similar moves to grant diploma privilege. 

The American Bar Association has also pressed states to adopt changes to their bar exams, urging them postpone or cancel their July tests. 

For those in states who can’t take the exam, the association recommended states allow recent law school graduates to practice under the supervision of a licensed attorney if the July bar exam in their jurisdiction is canceled or postponed due to public health concerns. That “limited practice of law” recommendation is similar to the June Montana Supreme Court order.

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Chris Aadland covers tribal affairs in Montana as a Report for America corps member based in Billings. Before moving to Montana he covered the Wind River Reservation in Wyoming for the Casper Star-Tribune, and has also reported for the Wisconsin State Journal. Contact Chris at caadland@montanafreepress.org and follow @cjaadland on Twitter.