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Nebraska Supreme Court rejects request to let grads practice law without taking bar exam

Nebraska Supreme Court rejects request to let grads practice law without taking bar exam

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The Nebraska Supreme Court has denied a request to allow 2020 Nebraska law graduates a license to practice without passing the bar exam.

The petition was filed Friday, and the court ruled Saturday.

Automatically giving all law graduates the license to practice — a concept known as “diploma privilege” — will not be on the table because the state’s highest court said it would allow graduates who wouldn’t otherwise qualify to practice law. Last year, more than 25% of graduates failed the bar exam.

“The court is mindful of the challenges inherent in studying for and taking the bar examination in ordinary times, and our decision is not intended to diminish the additional challenges of doing so during a pandemic,” the court wrote in its order. “But the administration of justice does not stop in a public health emergency.”

About 145 people are expected to take the test this month, said Carole McMahon-Boies, administrator of the Nebraska Supreme Court Attorney Services Division.

The test will be given in a 10,000-square-foot room, and each candidate for the bar will sit 6 feet away from others, she said.

With the court’s ruling, the bar exam will proceed as scheduled on July 28 and 29.

According to the court, people taking the exam must test negative for COVID-19 ahead of time or they will be deferred to a September date, which has been added due to the coronavirus. The test was also administered in February. About 25 graduates have signed up for the September test.

“The justices should ask themselves, would they be willing to sit and proctor this exam,” said David Sears, a May graduate of Creighton University School of Law. “If they wouldn’t feel comfortable sitting in the room, then we shouldn’t be having one.”

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Sears, who will take the exam this month, said he understands the intent of the court to not allow incompetent lawyers in the working world.

He said there were other options to test law school graduates’ competency — like the character and fitness application and the Multistate Professional Responsibility exam, which already are required by the Nebraska State Bar Commission. He also said pushing the exam date back until “it is safe to have an exam where we put hundreds of people in a room together” is another option.

If the state won’t refund graduates who decide not to take the exam, Creighton University will cover the cost of the exam if a Creighton law graduate is sick, underprepared or scared to take the bar, said Joshua Fershée, dean of the law school.

“For me, granting diploma privilege would have been a reasonable and justifiable option that I would have welcomed,” he said in an email.

The pass rate for Nebraska law school graduates was 72.2% in 2019, according to the court. Continuing the exam with safety measures in place “recognizes the examinees’ desire to engage in the practice of law,” the court wrote in a press release.

wbauer@owh.com, 402-444-1069

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