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Law Practice, Ethics/Professional Responsibility, California Supreme Court, State Bar & Bar Associations

Aug. 16, 2017

Bar has kept out fine lawyers for no reason

Both the passing score and the overall validity of the exam need attention.

The California bar exam is broken. Both the passing score and the overall validity of the exam need attention. It has taken years to secure a simple investigation by the State Bar despite years of low pass rates among even well respected law schools. Attorneys should support the State Bar’s efforts to investigate and ultimately lower the passing score.

The State Bar’s preliminary study (see study attached below) demonstrates that a modest reduction in the passing score would not reduce the reliability of the test. No evidence suggests California receives any benefit from the second highest passing score in the United States (see report attached below). Yet we keep qualified young lawyers out of practice that would pass in other states. And we need more lawyers — not fewer.

In every courthouse today, there are pro se litigants struggling to work through the legal system without the guidance of an attorney and not because they do not want a lawyer, but because they cannot afford one. There are not enough lawyers to represent the vast middle class with routine legal needs, such as a will or divorce.

Perhaps the burden on access to justice would be justified if we had evidence that a high pass score protected the public from incompetent or unethical lawyers. No such evidence exists. (Indeed, California has maintained a high pass score for decades without a corresponding reduction in attorney discipline cases. If the proponents of a high score are correct, then 48 states should have higher discipline rates than California. Instead, California’s discipline rate is rather ordinary. The higher passing score does nothing to ensure the state only licenses higher quality lawyers. It merely ensures there are fewer of them.

Restricting the admission of future lawyers does nothing to clean up any real or perceived professionalism problems with current lawyers. Discipline is extremely rare in the early years of practice and the most common offenses are not related to any subjects or skills tested on the bar exam. Even if restricting licensing would reduce professionalism issues, the moral character requirement, not the bar exam pass score, is the proper place to look for front-end solutions to a back-end problem.

A great deal has changed while the bar exam passing score has not. This July, the State Bar changed the exam to a 50 percent weight on the national Multi-State Bar Examination which is the multiple-choice portion of the bar exam. Traditionally, the MBE was 33 percent of the exam score. At first blush, this looks to be a small change, but it has large consequences. For the last several years, the MBE has declining pass rates and the National Conference of Bar Examiners, the administrator of the MBE, is not transparent in explaining the decline. Without access to the MBE’s methodology or data, California’s increased reliance on this portion of the exam is both uninformed and will likely result in even lower pass rates.

Nearly everyone agrees that better practical training for lawyers is beneficial. If California wants its licensing exam to ensure that the proper skills and training are in place, then the exam must be evaluated to be sure it validly performs that function. Instead, the exam has increased its reliance on the MBE, which emphasizes memorization and includes no California specific law. California is heading in the wrong direction by maintaining a high pass score with a heavy reliance on multiple choice questions and general national law that many California attorneys will not use in practice. This perpetuates an emphasis on test-taking skills, not practical skills.

The passing score is not limited to creating problems for a few troubled law schools. The ABA pass rate for last July’s exam was only 54 percent overall and only marginally better at 62.4 percent for first time takers. Students at these law schools would pass at rates in excess of 80 to 85 percent in many other states.

I have no personal ax to grind. I took and passed the California bar exam the first time. But in my over two decades as a law professor, the California bar exam pass score has kept out or delayed many fine new lawyers for no reason. It is time to fix that.

#342804

Ben Armistead

Daily Journal Staff Writer
ben_armistead@dailyjournal.com

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