I read with great interest the article regarding the City Bar's proposal that the Court of Appeals either adopt the national online multiple-choice examination offered by the National Conference of Bar Examiners (NCBE) for October 2020 or grant a permanent diploma privilege to admit all 2020 graduates of ABA-accredited law schools who meet all other qualifications for admission (NYLJ July 17, 2020). I have also read the City Bar's letter in which it justifies its proposals in light of the unprecedented challenges facing recent graduates. I was surprised that it did not consider the possibility of a practice order permitting 2020 graduates to practice under the guidance and supervision of an attorney until such time as an in-person exam may safely be given.

I have great sympathy and compassion for recent graduates and appreciate the considerable stress and pressures they are under. Indeed, I recently spearheaded a resolution adopted by the New York State Bar Association on July 14, 2020, calling for an extension of student loan deferments to September 2021. I empathize with the plight of recent law graduates, and I believe that the City Bar's suggestion that under current circumstances the NCBE online exam should be adopted needs careful consideration. However, the alternative proposal for diploma privilege is deeply flawed, misguided and should not be considered.

During my term as president of the New York State Bar Association (NYSBA), I appointed a task force on the New York Bar Exam and since that time, I have attended every meeting of that group, which heard from leaders of the New York Board of Law Examiners, law school deans and others. Among the matters considered by the task force prior to and early on during the pandemic were the various options to the type and content of the exam, the usefulness of the exam and the approach taken in various other jurisdictions. After a substantial investigation and public hearings throughout New York State, the task force issued a report with thoughtful recommendations which was adopted by NYSBA on April 4, 2020. https://nysba.org/app/uploads/2020/03/Report-of-the-NYSBA-Task-Force-on-the-New-York-Bar-Examination-With-Appendix-compressed.pdf

As noted by the task force, standardized online exams pose significant issues, not the least of which is that they fail to address the problems related to providing accommodations for the disabled. Also, the task force reported that it had heard that there was no monitoring whatsoever and that cheating occurred on the online portion of the current bar exam dedicated to New York law, the New York Law Exam.

Additionally, online exams disadvantage financially challenged students who may not readily have access to high-speed broadband service. Advocacy for an online exam overlooks the fact that significant areas of New York State have little or no high-speed broadband access. As noted in the Report of the New York State Bar Association's Task Force on Rural Justice, which was adopted by NYSBA on April 4, 2020, very large portions of upstate New York have no broadband access at all. https://nysba.org/report-of-the-task-force-on-rural-justice/

In the midst of the pandemic, what is a graduate to do who currently resides with her parents in Wyoming County, or St. Lawrence County, or Clinton County, or any of the many upstate counties with minimal or no high-speed broadband service? Indeed, recognizing this problem, which significantly impacts access to justice, NYSBA adopted a resolution on June 27, 2020, calling for a major effort to provide affordable high-speed broadband service in large swaths of upstate New York and in areas throughout the nation where such service is currently unavailable. https://nysba.org/app/uploads/2020/06/Broadband-Resolution_6.24.20-June-2020-HOD.pdf

The proposal to grant a permanent diploma privilege to admit all 2020 graduates of ABA-accredited law schools who meet all other qualifications for admission (the usual submissions to, and approval of, the Character and Fitness Committee of the respective Appellate Divisions) is even more problematic. There are fundamental questions that demand consideration: Why does a bar exam exist? Why isn't graduation from law school sufficient for admission to the bar, assuming the candidate meets our profession's character and fitness standards?

The answer to these questions is not complicated. The exam exists because we as a profession have a duty and obligation to the public we serve to ensure that those admitted to practice law in New York meet certain basic minimum standards of competency. Prior bar exam results consistently reflect that of those taking the New York bar exam, approximately 20%-25% will fail. This is not speculation, this is fact. Thus, if adopted, diploma privilege would admit a huge number of people who would have failed the bar exam. The imposition of "an expanded continuing legal education requirement for those who are granted a diploma privilege or take the online NCBE examination" as suggested by the City Bar would do little to meet our obligation to ensure minimum standards of competency, as all that is required for CLE credit is listening to the presentations.

The proposal for a student practice order whereby law graduates would be permitted to practice under supervision of an attorney until such time as an in-person bar exam may be administered seems a very reasonable and appropriate approach. However, there are a number of questions: Would there be periodic reporting? If so, to whom would the reports be made? What would be the standards of evaluation? On its face, a student practice order would strike a reasonable balance between the interests of recent law graduates and our duty to protect the public. Implementation and monitoring, though, would pose significant challenges.

The City Bar's comment that "The ongoing uncertainty [regarding bar admission] creates chaos in our profession" is both unwise and inaccurate. Millions of families face uncertainty — we are all in the same boat. The concern regarding attaining or retaining employment to which the City Bar refers is not the sole province of law graduates. Throughout our nation and around the world, the economic and social impact of the pandemic has been profound and has created many uncertainties. We must be mindful that there are extraordinary challenges for tens of millions of our fellow Americans and people around the globe who have lost loved ones, have lost employment and face even more daunting uncertainties than do recent law graduates.

Uncertainty, however, is not chaos. Law firms are making reasoned decisions based on current circumstances. Court leaders are making careful and thoughtful decisions, balancing the vital role courts play in our justice system with profound public safety concerns. I do not question the good faith of those who propose adoption of the NCBE's online exam. Nor do I question the good intentions of those who support admission by diploma. However, I question their characterization of the situation and their conclusions. They ignore the value of a practice order, which would allow graduates to practice under the supervision of an attorney until such time as the bar exam may be safely administered. Instead, the City Bar proposes either adoption of a national online exam without appropriate safeguards and monitoring and which tests absolutely no New York law, or granting admission based merely on obtaining a law school diploma.

The license to practice law in New York has long been considered the international gold standard. While the pressures on recent graduates are considerable and painful, they are only at the beginning of their careers in our great profession. They, and we, will get through the challenges before us. They, and we, will see brighter days. We must not allow the current dark days to cause us to tarnish or erode New York's status as the preeminent legal community in the world.

Adopting admission by diploma would be a serious dereliction of our duty to ensure that New York lawyers meet minimum standards of competency. Temporary adoption of a practice order which would permit graduates to practice under the supervision of an attorney, while being complicated to implement, would strike a good balance, offering support for 2020 law graduates and at the same time protecting the public. However, adopting the NCBE's online exam until such time as an in-person exam may again be given safely, while significantly flawed, may unfortunately be the most practical choice out of imperfect options.

Michael Miller is a former president of both the New York State Bar Association and the New York County Lawyers Association. He is a solo practitioner in Manhattan.