Elimination of the bar exam would be a dangerous development

In 2021, the California Supreme Court formed a Blue Ribbon Commission on the Future of the Bar Exam (BRC). The BRC is charged with "developing recommendations concerning whether and what changes to make to the California Bar Exam, and whether to adopt alternative or additional testing or tools to ensure minimum competence to practice law." The BRC is comprised of law school faculty, state bar officials, and others appointed by the California Supreme Court. From the outset, several members of the BRC publicly expressed disdain for the California Bar Exam, with one member stating at the initial meeting "[i]'m not certain we need a bar exam."

Recently, a subcommittee of the BRC recommended that California pursue a "non-exam pathway" to licensure and the scope will be discussed at the June 9 meeting of the BRC. The "non-exam pathway" would allow candidates to bypass the bar exam entirely by completing a certain amount of supervised "experiential" internship hours during law school or following law school. One of the members of the subcommittee, and a chief proponent of the "non-exam pathway," is the Dean of the Santa Barbara College of Law, a non-ABA accredited law school which achieved an 18% pass rate for the July 2021 California Bar Exam.

The "non-exam pathway" recommendation mirrors a similar proposal that was recently approved in Oregon, allowing students and out of state/foreign attorneys to become licensed after a certain amount of supervised practice. Oregon recently approved the proposal, but has not yet implemented it. Other than a very small program at a single law school in New Hampshire, no other state has implemented anything similar.

According to the Oregon proposal, termed the Oregon Experiential Pathway (OEP), Oregon's three law schools (all ABA accredited) would be tasked with developing programs that allow students to do a certain amount of legal work at participating law firms and legal organizations. A student can bypass the bar exam after he/she completes the required amount of work. Out of state and foreign attorneys can similarly obtain licensure after spending 1,000 to 1,500 hours with a licensed Oregon attorney. (https://taskforces.osbar.org/files/Bar-Exam-Alternatives-TFReport.pdf). It is worthwhile to note that Oregon currently has approximately 500 students per year taking the bar exam (versus approximately 12,000 in California), and Oregon does not allow non-ABA accredited law schools, unlike California.

Explained below, a "non-exam pathway" to obtain licensure in California would be detrimental in a number of ways to students, practicing attorneys, and the public, without any clear benefit to the State or profession. Such a pathway would eliminate the ability of the State to ensure that all licensed attorneys possess minimum competence to practice law. The pathway would not test legal writing or knowledge and application of foundational legal subjects. The pathway would be monitored by individual law schools and any student who completes an internship would be eligible to practice law, effectively ensuring a 100% pass rate. In short, the pathway would only benefit law school enrollment and pass rates, but serve as a detriment to California and the profession.

The Non-Exam Pathway Eliminates Objective Testing of Proficiency in Legal Writing or Knowledge of Foundational Subjects

The proposed non-exam pathway eliminates testing as a method of determining minimum competence. Instead, it relies upon the completion of "experiential" internship hours. Of course, internship experiences will vary widely, making it impossible for the State Bar to implement a single standard of competence. Students will naturally select experiential internship programs based upon ease of completion and the evaluation of program directors will be subjective. Most importantly, internships do not ensure that applicants are proficient in legal writing. Nor do they ensure that applicants understand foundational legal concepts in California and federal law. Experiential internship programs are designed to achieve completion of the program, which is fundamentally different than testing minimal competence.

As a New York Task Force Found, Students Will Not Enroll in Foundational Courses Without a Bar Exam

In 2016, New York moved away from a state specific bar exam (similar to California's current exam), and adopted the Uniform Bar Exam. It also included a one day online New York supplemental multiple choice test. In 2019, the New York State Bar Association formed a task force on the bar exam (the "NY Task Force"), after receiving complaints from New York attorneys and practitioners about the effects of the 2016 move. The NY Task Force included judicial and attorney appointees.

In 2020, after a one year extensive study, the NY Task Force released an 80 page detailed report, endorsed by every major bar association in New York. In sum, the task force found that the move away from a "rigorous" New York state-specific exam harmed New York practitioners and the public in a number of significant ways. Specifically, the NY Task Force found that law schools will stop teaching important foundational and state law subjects if the bar exam ceases to test these subjects, because student demand for the courses will plummet. (March 5, 2020 Report of the NYSBA Task Force on the New York Bar Examination ("NY Task Force Report" at 2).

This, in turn, caused law students to be less prepared to begin a legal practice.

The New York task force ultimately recommended that New York return to a "rigorous" state specific written (essay) exam, similar to California's current exam. It found that law students will only prepare sufficiently for New York specific practice if they are extensively tested on New York subjects through a rigorous written bar exam. (NY Task Force Report at 58).

The New York report should serve as a canary in the coal mine for California. Without a bar exam testing foundational law subjects such as professional responsibility or business associations, students will simply not enroll in the courses. As discussed, every major bar association in New York endorsed the NY Task Force Report, which found that it was a major mistake to move away from a rigorous written exam testing New York law. Yet, the BRC is inexplicably moving in the opposite direction, to recommend a loosening of the requirements for licensure in California.

California Practicing Attorneys Overwhelmingly Disfavor Changes to the Exam

In 2017, the California State Bar conducted a survey of practicing attorneys related to potential changes to the bar exam, including the cut score. Practicing attorneys are arguably in the best position to ascertain minimum competence of newly admitted attorneys. In fact, many of the responses on the survey were from newly admitted attorneys. The 2017 survey is the most extensive survey of California attorneys conducted to date about the bar exam, with 34,000 responses.

As part of the survey, the overwhelming majority of practicing attorneys voiced a strong opinion against major changes to the exam. Eighty percent of attorneys favored keeping the exam and cut score intact. Only 5% of attorneys favored "other options," which included "implementing the Uniform Bar Exam, eliminating the bar exam entirely, undecided or no opinion."

The 2017 survey makes clear that the overwhelming majority of practicing attorneys do not favor substantial changes to the bar exam. Among such an opinionated group, there is perhaps no other topic in the world that would invoke an 80% agreement. The survey is entirely consistent with the findings of the NY Task Force, which interviewed practicing attorneys who voiced "widespread concerns . . . that newly-admitted lawyers were not sufficiently prepared to practice law in New York" without a rigorous state-specific exam. (NY Task Force Report, at 8).

The "Non-Exam Pathway" Does Not Address Deficiencies in Legal Education at Many California Law Schools

I work in legal education and have personally assisted several thousand students pass the California Bar Exam. Every year, hundreds of students seek my help in passing the bar exam. I pride myself in teaching not only first-time takers, but also the "toughest cases" of students who have previously failed the exam multiple times, and ultimately succeed with my help. I am very familiar with the reasons why students do not pass the California Bar Exam.

Students generally do not pass the California Bar Exam because they are not taught properly in law school, don't understand the legal principles involved, and are not proficient in legal writing, legal knowledge and legal analysis. These students are not prepared for the practice of law and should not become attorneys until they sufficiently develop these skills. Students are unprepared, despite paying exorbitant tuition rates to graduate from law school. It is unfortunate that many law schools, particularly non-ABA accredited schools but also many accredited schools, do not ensure that graduates possess minimal knowledge, skills and abilities for the practice of law. The legal education at these schools is sorely lacking and needs to be improved.

For example, noted above, the Dean of the Santa Barbara College of Law is one of the members of the "non-exam pathway" subcommittee and a vocal proponent of the pathway. The Santa Barbara College of Law achieved an 18% pass rate for the July 2021 California Bar Exam. Yet, instead of addressing the core issues of legal education at the school that cause this low pass rate, the "non-exam pathway" will likely ensure that nearly 100% of these students who complete an internship program will obtain licensure. This will be a dangerous development for the public and legal profession.

A "non-exam pathway" would undoubtedly allow many students to obtain licensure who are not minimally competent. Internship programs do not ensure proficiency in legal writing or analysis by any set standard. Students will certainly choose internship programs based on ease of completion. At the same time, the "non-exam pathway" will cause law schools to admit more students, charge higher tuition, and allow a greater number of graduates to obtain licensure who do not possess the knowledge, skills or abilities to practice law. While law schools will certainly benefit from this development, the public and legal profession will suffer.

-- Jason Tolerico is a legal educator and owner of the One-Timers Review Course. Jason has taught thousands of students throughout his career and has passed the bar exam on his first attempt in numerous states, including California, New York, Arizona, Nevada, Colorado and Pennsylvania.