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A deep dive behind the scenes of the #Barpocalypse bar exam resolution

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The in-person bar exam
How did Resolution 10G come up for a vote at the 2020 ABA House of Delegates during Virtual Annual Meeting this month? We take a look behind the process. (Photo: iStock)

On August 4, 2020, the American Bar Association’s (ABA) House of Delegates adopted Resolution 10G, by a 256-146 vote, during its first-ever virtual meeting.  As both “floor managers” and principal drafters, we devoted much of the past two weeks days of our lives to drafting, editing, strategizing, and—of course—lobbying for support among our House colleagues. 

There was much discussion about the resolution on social media and elsewhere, from #diplomaprivilege advocates to academic leaders like Professor Dan Rodriguez, Provost Patty Salkin, and Professor Debbie Merritt. But, now that the House has adopted Resolution 10G and opposition to in-person bar exams during the pandemic is now official ABA Policy, we would like to take this opportunity to provide some background on how this resolution came about, answer some common questions, and correct some misconceptions—and help YOU advocate for the next ABA policy.

How did Resolution 10G come together?

Several weeks ago, the two of us worked closely on what would eventually become Resolution 10D.  That measure was sponsored by the Virgin Islands Bar Association and co-sponsored by the ABA Law Student Division, and, among other things, urged for the extension of the provisions of the CARES Act providing for administrative forbearance of student loans due to the COVID-19 crisis through September 30, 2021. Though this may seem like it has a minimal impact if adopted as a policy matter by Congress during the next stimulus measure, given the enormity of student debt as a whole, we wanted to advocate for a limited-scope debt measure that could have real, felt impacts by young lawyers.

Due to the procedural rules that govern the submission of resolutions to the ABA House of Delegates, it was necessary for a state or territorial bar association to serve as the principal sponsor of the measure in order to ensure that it would be placed on the agenda for the August 3-4, 2020 House meeting.  During the drafting process for 10D, the Virgin Islands Bar Association and the Law Student Division worked closely with the ABA Young Lawyers Division, in which Chris serves as an officer.

On July 27, 2020, we connected with Professor Patricia Salkin. Anthony and Professor Salkin spoke at length that night, and then Anthony spoke to the President of the Virgin Islands Bar Association—Nesha Christian-Hendrickson—as well as the rest of the Virgin Islands delegation to the House, and the V.I. Bar tentatively agreed to do the resolution.  Professor Salkin and Chris quickly brought in others, including Professor Rodriguez and representatives from the ABA Law Student Division, the ABA Criminal Justice Section, and the ABA Section on Dispute Resolution

A first draft of what would eventually become 10G was circulated by Anthony to the group at around 3:30 a.m., went through a couple of rounds of editing within the drafting group, and then was filed with the House of Delegates just before 5 a.m. on July 28, 2020.

Why did the Virgin Islands Bar Association need to sponsor 10G?

The ABA House of Delegates only meets twice a year—at the ABA Midyear Meeting in February and the ABA Annual Meeting in August.  The filing deadline for the August 3-4, 2020 House of Delegates meeting was May 5, 2020.  The Rules of Procedure Governing the House of Delegates prohibit a resolution filed after that deadline from being considered, but allow for two exceptions: either with a 2/3 waiver of the full House of Delegates or a state or local bar association sponsors the resolution.

Therefore, if the Virgin Islands Bar Association had not sponsored 10G (as well as 10D), the resolution would have effectively required a two-thirds supermajority to pass the House.  Since we knew we would encounter opposition from the National Conference of Bar Examiners (NCBE) and potentially a few state bar associations, it was important for the Virgin Islands Bar Association to bring the resolution to guarantee that it would pass with a simple majority. 

This strategy proved prescient, since 10G ultimately passed by a vote of 256-146 – or 64% to 36% — and thus would likely have failed for failure to reach the two-thirds supermajority threshold had the Virgin Islands Bar Association not been the principal sponsor.

Why did the Virgin Islands Bar Association want to sponsor 10G?

As a Past President of the Virgin Islands Bar, Anthony no longer speaks for the association.  However, the motto of the Virgin Islands Bar Association is “Striving for Justice . . . Serving our Community.”  The Virgin Islands Bar takes that motto seriously. 

Although the U.S. Virgin Islands and other territories lack a meaningful voice in national politics, the Virgin Islands Bar Association has a strong voice in the ABA House of Delegates.  The Virgin Islands delegation decided to use that voice to speak up for the hundreds of thousands of bar applicants and law students who were pleading for help.

Why didn’t the ABA act sooner on the issue of the in-person bar exam?

A lot of people on social media dismissed Resolution 10G as too little, too late, given that in-person bar exams had already occurred in several jurisdictions in the last week of July. We do not blame them for that perception—but it bears clarifying further.

Again, the ABA House of Delegates only meets twice a year—in February and in August. The COVID-19 pandemic did not disrupt ordinary life in the United States until March, and so no one knew any of this would be an issue in February. At the time of the February meeting, there were some 50 known cases of COVID-19 in the U.S. Even at the time of the April ABA Board of Governors Resolution calling for limited, supervised practice with a later bar exam, only some 350,000 cases of COVID-19 were known in the U.S.

At the time of the Annual Meeting, which was the very first time that the Virgin Islands Bar Association or any of the co-sponsoring ABA entities could bring Resolution 10G, there were more than 4.5 million cases of COVID-19.

When Chis, Professor Rodriguez, or others explained this on Twitter, some people asked why the ABA could not just call a special meeting of the House of Delegates to address the issue sooner.  However, Article 6.11 of the ABA Constitution provides that a special meeting can be called by the ABA President only at the written request of a majority of the 597 delegates who make up the House, and that such a meeting could only occur with 40 days notice.  While Article 6.11 allows for a special meeting with only 15 days notice, such a meeting can only be held with the concurrence of two-thirds of the ABA Board of Governors. 

Given the sheer size of the House and the Board, as well as the likely opposition from NCBE, it would have been effectively impossible to reach these thresholds.

It is also important to emphasize at this point that the ABA is not a homogeneous entity.  ABA policy is made by the 597-member House of Delegates, which operates very similarly to Congress.  The delegates who make up the House come from the bar associations of all 50 states, the five territories, and the District of Columbia; various ABA sections and divisions; and certain affiliated organizations. 

As the vote on Resolution 10G demonstrates, we do not all share the same views on all the issues facing the legal profession.  Just because Congress has not acted on an issue does not mean that there are not representatives and senators working to change that, sometimes publicly but often behind the scenes.  The same is true of the ABA.

Why was the final version of 10G not released until August 2?

Although all the co-sponsoring entities participated in the drafting of Resolution 10G, each entity still needed to have its governing body (usually a “council” or “assembly”) formally vote to co-sponsor the measure.  While Resolution 10G was filed immediately after the Virgin Islands Bar Association approved it on July 28, 2020, the other five co-sponsoring entities held their votes at previously scheduled meetings on July 31, 2020 and August 1, 2020. 

The Committee on Rules and Calendar advised us that it was its preference to distribute the resolution to the delegates only after all co-sponsorships were finalized.  Because the final entity to formally approve co-sponsorship—the ABA Young Lawyers Division—did not formally advise us of its co-sponsorship until the evening of August 1, 2020, the resolution was not distributed on the House of Delegates listserv until Sunday August 2.

How did you lobby for 10G?

Most lobbying for resolutions in the ABA House of Delegates occurs at formal ABA entity governance meetings (typically councils or assemblies), at informal delegate caucuses, and of course through one-on-one discussions. Because this was the first-ever virtual House of Delegates meeting, it was not possible to do much one-on-one lobbying, which made the councils, assemblies, and caucuses even more critical. 

Our core group—Anthony, Chris, Professor Salkin, and Professor Rodriguez—divided up these meetings among ourselves with the goal of speaking at as many as possible.  Doing this was a bit difficult because we both have young kids at home, and a lot of these meetings were scheduled for times when both kids would be awake and need attention.  However, we hit more than 15 different groups virtually to discuss the merits and necessity of the resolution. No NCBE representatives were at these caucuses, despite them being open to all meeting attendees.

Where do we go from here?

10G is the final product of our work in this resolution, but it’s not the end result for this effort. We have both worked closely with the ABA’s Governmental Affairs Office to strategically communicate and implement this resolution in the most impactful way possible.

On Friday, August 7, 2020, the ABA President sent a letter to the Conference of Chief Justices to explain 10G. Even before this letter was sent, at least one state Supreme Court has taken notice of the ABA’s debate on this important topic. On August 5, 2020, the Supreme Court of Nevada issued an order expressly citing to Resolution 10G and ordering that numerous actions be taken with respect to the Nevada Bar Exam to ensure that it is administered in accordance with the resolution’s recommendations.

I have an idea for a resolution. How can I get started?

We’ve both come to learn a lot about the ABA policymaking process and how to effect change, both from 10G but also from other resolutions we’ve each been involved in drafting and advocating for. The simplest answer to this question is to reach out to us- both of us are eager and willing to elevate voices and ideas and advocate with you. Just ask, and we will be glad to help.

Anthony Ciolli and Christopher Jennison Anthony Ciolli is a past President of the Virgin Islands Bar Association. He currently serves as Special Assistant to the Chief Justice of the Virgin Islands. He remains active in both the Virgin Islands Bar Association as well as the American Bar Association, where he serves as one of the Virgin Islands delegates to the ABA House of Delegates. He also serves on the Executive Council of the National Conference of Bar Presidents. Christopher Jennison is a member of the Maryland and the D.C. bars. He practices employment and labor defense for the Federal Aviation Administration, in Washington, D.C. He is active in the Maryland State and American Bar Associations (ABA), currently serving as the ABA Young Lawyers Division Speaker, as an MSBA Delegate in the ABA House of Delegates, and as a Young Lawyer member of the MSBA's Board of Governors.