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State Bar & Bar Associations

Nov. 20, 2023

State Bar sends Supreme Court another unpopular alternative to exam

“They really need to focus on the administration of the bar and discipline. Yet they persist in doing these other things. One can only guess why it’s being done,” said John P. Cotter, a Sacramento partner at Diepenbrock & Cotter LLP.

California State Senator Tom Umberg at a press conference in 2022. (Shutterstock)

California attorneys and lawmakers have rejected for years the State Bar’s pursuit of alternate pathways to licensure, and history seems to be repeating itself as the board of trustees sent to the Supreme Court another proposal for a pilot program that would require 700-1,000 hours of supervised legal practice instead of an exam.

“It received probably the most public comments over any other item we’ve ever considered about this particular item. It has been mixed, for sure,” new bar Board of Trustees Chairman Brandon Stallings said Thursday.

His was one of the few comments acknowledging the strong opposition from 87% of the 2,208 attorneys who commented on the proposal after bar staff presented it in September. During the public comment period, 60 bar associations co-signed a dissenting letter led by the Los Angeles County Bar Association.

The Portfolio Bar Exam pilot proposal was developed by a committee the bar board created after a Supreme Court-appointed Blue Ribbon Commission deadlocked about making any recommendation on a non-exam pathway to becoming a California lawyer. The bar’s new committee was made up of Blue Ribbon Commission members who favored an alternative to the bar exam. Those who opposed it were not included.

State Supreme Court media officer Merrill Balassone said in an email Thursday that the court was not involved in the creation of this additional working group and some attorneys have objected to how it was formed.

“The bar reached out to those folks who supported the alternative pathway and not the folks who didn’t,” noted Oakland employment attorney Wendy E. Musell. “As a procedural way of approaching these large public policy issues that affect all of the attorneys in the state and, frankly all the consumers, it is concerning.”

In response to questions about why the bar keeps pressing proposals for alternate ways to become a lawyer in the face of consistent and overwhelming opposition by practicing attorneys, and by the Legislature, John P. Cotter, a Sacramento partner at Diepenbrock & Cotter LLP, said in a phone call Thursday, “Objectively, it makes no sense.”

“They really need to focus on the administration of the bar and discipline,” he said. “Yet they persist in doing these other things. It’s really bizarre. One can only guess why it’s being done. Maybe they want to be able to say that they’re using their office as a steppingstone for some political agenda. I have no idea.”

Not everyone who disagreed with the bar’s alternate pathway to licensure proposal was against the bar exploring the idea.

Ryan M. Harrison of Fisher Phillips LLP is a former member of the Blue Ribbon Commission on the Future of the Bar Exam who opposed the alternative pathways the bar staff had presented.

“I think certain members of the Board of Trustees were curious about the kind of proposal the minority … who supported the alternative pathway would come up with,” he wrote in an email Wednesday. “In other words, the Board of Trustees would rather have something to consider rather than nothing. I understand and appreciate this level of curiosity as it shows us that our leaders are not asleep at the wheel.”

Consumer Attorneys of California CEO Nancy Drabble addressed the topic during a “Legislative Update” panel at the organization’s annual convention in San Francisco on Friday. She noted that other states are also engaged in similar efforts to find an alternative to the test.

“There is a movement in other parts of the country, primarily being spearheaded by academics, who say the way to improve access to justice is to have these people who are not lawyers and may not even be human beings, it’s going to be an app providing legal services,” Drabble said. “We in California so far have been successful in derailing this.”

Drabble said in California these changes have largely been pushed by a group of professors at Stanford University. She added that the CAOC has formed “a very strong alliance” with legal services attorneys and Senate Judiciary Chair Tom Umberg, D-Santa Ana. Umberg wrote prohibitions on funding these ideas into the bar’s latest funding bill, though the language stopping the bar from considering paraprofessional licensing runs out in 2025.

“We in California have an advantage because the practice of law is not totally in the purview of the State Bar and our California Supreme Court,” Drabble said. “The Legislature has the ability, through statutes, to have an effect.”

The bar did not respond Wednesday through Friday to phoned and emailed requests for comment by any board member or agency official on the question of why the bar pursued the non-exam proposal and others, in the light of so much opposition by legislators and attorneys.

Though acknowledging, but not responding to, the opposition to the new pilot proposal at Thursday’s trustees meeting, Stallings, a Kern County deputy district attorney as well as chair of the board, referred to “concerns about recent law school grads … and this idea that they’re not ready to practice law and that more experience is needed within law school. If this pilot program passes, it will help to drive those providers of legal education to give that experience necessary. … Let the grand experiment begin.”

The state Supreme Court created the Blue Ribbon Commission in 2021 with the goal of exploring, discussing and recommending ways of changing the bar exam and finding alternatives to it if it concluded the bar exam was not the correct or only tool to determine minimum competence to practice law in California. But after two years of meetings, the commission – during five separate voting sessions – were unable to agree on any of the proposed alternatives to an exam.

The group’s report to the board in May included a 300-page draft of a California specific bar exam in lieu of the administration of the NextGen exam being created by the National Conference of Bar Examiners for implementation in June 2026. But there was no option submitted for a non-exam pathway.

In March 2020, the State Bar was met with similar overwhelming criticisms when the board formed the California Paraprofessional Program Working Group in an attempt to create a supervised certification program for law school graduates to gain a limited attorney license.

Cotter referenced this prior push. “They did a similar thing before with the paraprofessionals, and the Legislature basically turned their water off on it. They had to because of the same thing we’re seeing here. The Legislature, the bar and all the attorney associations … everyone’s against it,” Cotter said.

Following a vast amount of dissenting opinions from attorneys and lawmakers – 90% of commenting attorneys opposed the proposal in the group’s final report in May 2022 – the paraprofessional group was shut down in September 2022 in the bar’s annual fee bill.

The chairmen, at the time, of the Legislature’s two Judiciary Committees — Umberg and Assemblyman Mark Stone, D-Santa Cruz — sent the bar numerous letters, urging its leaders to turn away from the idea of licensing attorneys as paraprofessionals and to instead focus on its core mission of attorney discipline.

Umberg was not available for comment Friday.. Stone’s Assembly term ended last year and he could not be reached for comment Friday.

Last year, however, Umberg said in an interview, “I remain committed to having the bar focus on its first obligation, which is protecting consumers in regulating the practice of law in California.” He said he might be receptive to limited proposals around expanding legal services in California – but only if the State Bar shows it has improved attorney discipline.

If the bar continues to pursue the temporary Provisional Licensure Program in 2025, funding for the pilot proposal will be about $425,000 for 100 people, according to a report from the bar staff. The state Supreme Court approved the pilot program in 2020 and extended it to Dec. 31, 2025, so some law graduates have been through the program.

The expense of the bar’s proposed pilot programs was also mentioned regarding the non-exam pathway that is now on its way to the Supreme Court. Gil N. Peles, a senior counsel at Tauler Smith LLP who represented the LA County bar at Thursday’s bar board meeting, said, “Now is not the time to implement an expensive pilot program that is opposed by 87% of State Bar members. Instead, a fair compromise would be to put the proposal on hold for now and gather data for a number of years from several states that implement similar programs.”

Oregon’s Board of Bar Examiners adopted the country’s first supervised practice program to be taken as a bar exam alternative this month. It will go into effect next May. Utah and Washington are considering similar programs.

“It is true that an alternative pathway approach is actually good, in theory,” commented Harrison. “But logistically and practically, it is not appropriate for the state of California. I don’t think it will work here because of the very high number of candidates for admission annually.”

The bar announced last month that 7,555 people took the July bar exam. The state averages the highest number of test takers per exam in the nation.

Santa Clara Law professor John Schunk said of the portfolio-instead-of-exam proposal, “In theory, it might work, but the practical aspect may be too costly and complicated.”

He wrote in an email, “Even if the proposed pilot program worked, scaling it so it is available to all ABA-accredited and CA-accredited law graduates would be daunting.”

In a news release, the bar said about 100 of the people who were provisionally licensed in that pilot program after it started in 2020 would be chosen for the new non-exam pathway pilot if the high court approves it.

“This number is probably higher than the number of law graduates who would pursue this option in these other states,” Schunk said. “For 100 participants, that is $42,500 per participant. The State Bar staff says it will pursue ‘philanthropic funding’ to support the pilot program. The State Bar staff acknowledges that a permanent portfolio bar examination program would need to be self-funding. One can only guess what that cost would be for each participant.”

Referring to 40 years of complaints against the now disbarred and indicted Tom Girardi that resulted in no bar discipline, Musell said, “We think the bar absolutely should be focused on its core mission. It appears that a large expenditure of money and time is being utilized in these alternate pathways that don’t appear to deliver on the promises that it appears is the mission of what they’re trying to accomplish.”


Devon Belcher

Daily Journal Staff Writer

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