Bar exam waiver sought for new military lawyers
A group of Florida lawyers has asked the Supreme Court for an emergency amendment to Bar rules and Bar admission rules to allow recent law school graduates who are entering military judge advocate service to be admitted as Bar members without taking the bar exam.
The emergency petition, signed by 50 Bar members and filed on September 2, said other states have taken similar steps in light of the difficulty of administering in-person or online bar exams during the COVID-19 pandemic.
Under the proposed rules, if the affected graduates remain in the military, they would not have to take the bar exam to maintain their Bar membership. But if they leave the service and have not taken the exam, they would have to comply with all requirements of Bar admission rules.
The petition asks the court to “create a pathway to [Bar] admission without examination to The Florida Bar for Judge Advocate Selectees currently under contract with any branch of the U.S. armed forces.
“….The delays [in holding the exam] along with the haphazard method in which the Florida Board of Bar Examiners has attempted to administer the Florida bar exam in the Summer of 2020 has resulted in lost income and access to benefits. The delays continue to cause injury. Though there is finally a date for an administration of the Florida Bar Exam on October 13, Selectees cannot attend their respective branch’s service schools without bar [exam] results,” the petition said.
The training delays have ripple effects through the military, which must juggle rosters for various training classes, the petition said.
The proposed new Bar Rule 1-3.12 would allow for the Judge Advocate Selectees to remain members in good standing until they either take and pass the bar exam or separate from the service. If they do leave the service, the person “must meet all admission requirements to The Florida Bar.”
Proposed new Rule 1-17 of the Rules of the Supreme Court Relating to Admissions to the Bar allows for Bar admissions for selectees who have completed all other non-exam requirements, and would be subject to completing their initial training and the Judge Advocate School.
The originally planned in-person bar exam scheduled for July was postponed because of surging coronavirus cases in Florida and the nation, and a scheduled online examination on August 19 was canceled because of technical problems. An online exam is now set for October 13.
The petition recounted the steps the FBBE took in preparing for the online exam, including several problems with the software and finally the postponement of the online exam late on August 16. It also noted several other states had problems with the same company and software.
Some other states have already addressed remedies for delays in their bar exams, the petition said, including:
• Utah allows otherwise qualified bar applicants to be admitted without taking the exam after meeting other requirements, including 360 hours of supervised practice.
• Washington made temporary rule changes to grant law licenses to those who have graduated from ABA-accredited law schools and who registered to take that state’s July or September exams.
• Oregon granted “emergency diploma privilege” to those who had applied for the July 2020 exam and graduated from an Oregon or ABA-accredited law school whose students in 2019 had an exam passage rate of 86% or higher.
• Louisiana granted emergency admission to recent graduates of ABA-accredited law schools, with a requirement they take the Multi-State Professional Responsibility Examination and complete CLE requirements of the Louisiana State Bar Association. The Louisiana Supreme Court also ordered two separate one-day exam administrations for those who do not qualify for emergency admission.
The petition said the Temporary Supervised Practice Program established by the Supreme Court on August 24 will not help the Judge Advocate Selectees.
“Delayed exams and provisional licensure with the eventuality of a bar exam prevents Judge Advocate Selectees from being assigned a duty station. Delays prevent Selectees and their families from receiving military benefits such as health and dental insurance, housing stipends, and various forms of student loan repayment,” the petition said. “Delays will lead to the grace period on student loans shrinking, leaving Selectees with an obligation to pay without stable income. Less pressing, but equally as important, time for Public Service Loan Forgiveness will not begin to accrue.”
The supervised practice program also does not meeting the military requirement that Judge Advocate Corps members have a membership in good standing with a state bar nor, since it requires them to work under a Bar member, does it allow them to work as interns under the supervision of military lawyers or judges.
Because of the emergency, the petition asked the court to waive review by The Florida Bar Board of Governors and the publishing of an Official Notice in the Bar News.
The filing included affidavits from six bar exam applicants who are also entering the judge advocate service and who detailed how the bar exam delays are affecting their careers.
First Lt. Pedro Cuervo said his active duty service has been delayed so he could attend law school and then become a judge advocate. But he said he has to have an annual review of his status and a further delay on taking and getting bar exam results could result in him being assigned to another part of the U.S. Army.
“Due to the uncertainty of the October test, I may miss the Army’s deadline of 15 December, 2020, for the receipt of law licenses from new judge advocates, which is a requirement to enter into the Army JAG Corps,” Cuervo said in his affidavit. “I feel scared because of the realistic possibility that my career as an Army judge advocate, which I have been building my life around for the past 8 years, could be delayed or completely destroyed because of the current bar exam situation.”
Others said they are facing additional living expenses because they cannot begin training, which could be delayed five months or more because of the exam problems.
Students who have been accepted in the military judge advocate service have already passed a grueling background and other checks, the petition said. Typically, the inductees study and take the bar exam and while waiting for results they attend basic officer training for their respected service branch.
By the time that is done, the petition said, students typically have their exam results and can proceed to taking their “branches lawyering course.”
The petition and proposed rules are available here.