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The Montana Supreme Court on Tuesday denied the request of dozens of recent law school graduates to skip the bar exam in light of the ongoing coronavirus pandemic but still be licensed to practice law.
In late June, the state’s Supreme Court ordered some changes to licensure for law school graduates, allowing recent graduates who meet certain requirements and are unwilling or unable to take the two-day bar exam scheduled for late this month in Missoula because of public health concerns to be temporarily licensed to practice law in Montana under the supervision of a fully licensed attorney until after the February bar exam.
But last week, more than 60 members of the 2020 University of Montana Alexander Blewett III School of Law graduating class petitioned the court to go further and 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. Under their proposal, those applying for diploma privilege would need to meet other requirements, like having been deemed fit to practice law by the Montana Commission on Character and Fitness, that would apply to those who are provisionally licensed.
A spokesman for the State Bar of Montana didn’t immediately respond to a request for comment on Thursday. One of the petition’s signers also didn’t immediately reply when asked about the ruling.
But in a Monday response to the petition, the Board of Bar Examiners said the court should deny the request.
Montana granted diploma privilege to University of Montana law school graduates until 1983, according to the court. The practice was abandoned, the court said, to ensure that only the most qualified lawyers are allowed to practice law in Montana. About 81% of University of Montana law school graduates passed the exam on their first try last year, and overall, about 84% of those who took the exam in Montana did the same, according to the court.
“Assuming a generous 85% pass rate, this would mean that if this Court granted diploma privilege in response to this Petition, 14 or 15 individuals would be admitted to the practice of law in this State who would otherwise not be admitted,” the court wrote in its ruling. “This is the harm this Court sought to avoid when it eliminated diploma privilege some 30 years ago.”
Wisconsin is the only state that currently grants diploma privilege as a matter of course, according to the State Bar of Montana. With the emergence of COVID-19, other states have grappled with how to administer the bar exam — a test required to become a licensed attorney — while keeping test takers safe. The petitioners said granting diploma privilege under these circumstances wouldn’t be unprecedented because Oregon, Utah and Washington have decided to allow similar temporary diploma privileges.
The petitioners said provisional licensure would still require them to later study for the bar exam while working full time as a lawyer and often juggling other responsibilities. And despite precautions bar exam administrators have outlined, they cited concerns about catching or transmitting COVID-19 while taking a test indoors surrounded by others who will have traveled from across Montana and, in some cases, from other states.
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“This provisional admission would allow these individuals to appear in courts of record, administrative tribunals, arbitration hearings, and other judicial and quasi-judicial proceedings in all civil and criminal matters,” the court wrote. “Petitioners argue the Temporary Rules are inadequate to address their concerns. They allege that it is difficult for provisionally admitted individuals to study for the Bar at a later date, presumably while employed full-time.”
But in denying the petition, the state Supreme Court said the Montana Board of Bar Examiners, which administers the test, and the State Bar of Montana, which supports the board in administering the test, had taken proper steps to protect test takers and limit the spread of the virus. Those steps include screening examinees for temperature and seating them according to social distancing recommendations.
“[W]e find that the Board has clearly given a great deal of thought to the actions it could take to mitigate the risk to examinees,” the court wrote. “[W]e reiterate that examinees have the option of delaying the Bar examination and practicing under the Temporary Rules. While this is not a perfect solution, examinees are nonetheless not without an alternative to sitting for the July Bar examination.”